*1 suggests 2d at 302. The Blanks court “no new crime” was agree. However, created We amendment. defendant is exposed conviction an additional crime which was not the prior case subsequent the amendment and supreme to the court’s decision in Childress. amendment burglary residential statute is a change substantive to the law and not be applied retroactively. Here, the trial court erred it when convicted defendant burglary as a lesser included offense of burglary residential because the law in effect at the time of the offense in March 2000 and defendant’s convic February tion in clearly burglary held that and residential burglary mutually were exclusive offenses. Accordingly, as the court Gamino, did People we reluctantly reverse defendant’s conviction.
For all foregoing reasons, judgment trial court’s is reversed. Reversed.
HOFFMAN, P.J., HALL, J., concur. (The K., In re CHRISTOPHER a Minor Illinois, State K., Plaintiff-Appellee, Christopher Defendant-Appellant). (5th Division) First District No. 1 — 02—0230 May Opinion filed 2004.
CAMPBELL, P.J., specially concurring part dissenting in part. University Legal Clinic, (Cathryn Crawford, Chicago Northwestern of S. Katz, Geraghty, Jacobs, Ashley Baynham, Thomas F. Stuart Greta and Steve Cohn, counsel), appellant. for (Renee Devine, Richard Attorney, Chicago Goldfarb, A. State’s Susan Sullivan, Collins, Schierl Alan Spellberg, and Annette Assistant State’s At- torneys, counsel), People. for the
JUSTICE REID opinion delivered the of the court: Following granting aof motion to have this minor defendant’s (EJJ) designated jurisdiction case juvenile extended proceeding (705 (West (C.K.) 1998)), Christopher ILCS K. 405/5 —810 adjudicated by jury delinquent having be virtue of committed first-degree appealing murder. C.K. is both the conviction follow, sentence. For the reasons that we affirm C.K.’s conviction and sentence as modified.
BACKGROUND January On C.K. was arrested and custody taken into for Lomax, the homicide of year Willie a 16 old. Lomax was shot and on killed January 1999. The State filed a delinquency petition against 14-year-old Thereafter, juvenile C.K. was charged in first-degree court with shooting. murder for the The State then unsuc- cessfully sought to have him transferred to prosecu- adult court for immediately tion. The State appealed the trial court’s denial motion to transfer the matter to adult court. This court affirmed the C.K., court’s denial the State’s motion to In transfer. re No. 2001) (February 9, 1—99—3175 (unpublished Supreme order under 23). Court Rule
After the failure to have the prosecu- matter transferred for adult tion, requested designate State the trial court as an matter proceeding. granted trial court that motion. was then tried, First, convicted and received a two-part sentence. he would be Department committed the Juvenile Division of the Illinois of Cor- (IDOC) for 5 years age rections until he reaches the whichever
135 the next spend C.K. will Second, when he turns first. comes Pursuant Department of Corrections. years the adult in stayed until further was statute, of the sentence portion the adult of the trial court. order
Pretrial Motions transfer, Buglio Steve Detective motion to hearing At the on the Buglio testified cause. Detective probable on the issue testified Lomax, Ter- he learned that investigation shooting, of the during his down the street walking were Montgomery and Willie Griffin rell flashing began people. people Those they saw a white car full of when car, up and thereafter, out of the ran Shortly got male signs. one gang as a of the shooter white gave description Lomax. Griffin fatally shot tall, build, teens, thin with his late 5 feet inches Hispanic male in wearing the shooter was head. Griffin indicated short hair or shaved jacket sweatshirt beneath. Griffin Cowboys á Dallas with a hooded of the car. suggested possible and the name of a owner also described tip from Buglio anonymous that he received an Detective testified shooting. the claiming caller to have information about a female matching the driving were in a car people caller and three other claimed C.K. was one of description Buglio Detective had. The woman shot Lomax. person the in the car and the who people Quinn, January Buglio spoke with Melissa On Detective Quinn Buglio people in told Detective that she was one of the the car. C.K. the men they men encountered C.K. told driving with two when nearby. gang street were in the car that members of Black Stones to the car. something to and returned allegedly go get then left Black they encountered the neighborhood until They drove around alley exited the car. pulled the car in the and C.K. Stones. driver Quinn heard a later Buglio testified that to seconds Detective car indicat- gunshot and, seconds, C.K. returned to the single within I smell like ing got go that “I think I one. I seen them down. gun.” only There’s one shell in gunpowder. the Two- Buglio police then asked officers familiar with
Detective help collecting the officers were gang locating Six street for C.K. While by investigation C.K., Buglio continued his information on Detective white, four-door Ford speaking Cosgrove, with Jessica the owner in the Buglio was the car involved Escort. Detective believed that changes her car follow- Cosgrove that she made shooting. indicated police. Cos- ing getting of a in trouble with shooting out fear Quinn Quinn’s. Both shooting of the was similar to grove’s account testified before police, written statements Cosgrove gave C.K. as the shooter. grand jury positively identified Herhold, C.K. was arrested Officer who initially gone had to his speak house to with C.K.’s mother. Officer Herhold visited C.K.’s mother’s house six times. C.K’s mother having denied seen C.K. On January 1999, Officer Herhold took C.K.’s mother with him when he arrested C.K. C.K. not challenge does probable claimed cause for gave his arrest. C.K. oral and written statements which shooting admitted to Lomax.
The trial
quash
court denied the
because,
upon
motions
based
totality
circumstances,
the trial court felt there
prob-
able cause. In addition to
quash,
the motions to
argued
that the
police
rights because,
violated his constitutional
although the arrest-
ing
them,
officer read
he was not read
rights pursuant
to Miranda
Arizona,
U.S.
L. Ed. 2d
As to the motion to suppress, C.K. the police claims violated his rights by failing youth to have a present during officer interrogation, forcing him undergo interrogation when he allegedly lacked the mental, physiological, educational, and emotional states and capacities to fully meaning short, understand the rights. Miranda In he alleged the confession was the result of Egan coercion. Officers and Herhold testified that C.K. never indicated he did not understand rights. They Miranda also coercing denied C.K.
At the conclusion of hearing, the trial court denied the mo- quash tions to suppress. that, and The trial court indicated “consider- ing totality of the circumstances and the information that all the police knew at the arrested, time that despite [C.K.] was the fact that there warrant, was no I arrest police believe had probable cause to make [an] arrest.”
When Egan Officers Herhold and transported C.K. the Area facilities, police One he was in the police backseat of the car with his C.K. by mother. claims he was told “go- the officers that he be would ing that, down” like Vincent Fox. The respond they officers while engaged talk, in small no such threats were made. C.K. arrived at Area One at approximately 3:20 or 3:25 He p.m. by was met Detec- Buglio tives and Winstead. With present, his mother “Miran- C.K. was dized” if Detective Winstead. When asked he understood the nature warnings, the Miranda C.K. indicated that he did. Detective Win- rights, stead claims that after he read the C.K. if asked he needed a lawyer. responded my The detective that “that’s not call.” C.K.’s “just mother told According her son to tell him the truth.” to C.K’s mother, thought C.K. he might first indicated he need to with a speak lawyer, then he asked the police if he did. C.K.’s mother claims the police responded by asking question to C.K.’s him if he wanted to she had indicated that mother point, C.K.’s At make statement. detectives her son. The with speak privately opportunity not had an for approximately alone speak mother to C.K. and his then allowed being prepared. lineup was minutes while if p.m. to see room at to the interview The detectives returned point, at this C.K. testified anything. needed or his mother C.K. the location of the gun asked for showed Buglio Detective his claim that C.K. was dispute the weapon. The detectives murder any or that waved in his face jail, gun that a was ever threatened with C.K. also to make a statement. to induce him promises were made he was worried of mind because right claims he was not in his state Buglio told him C.K. further that Detective about his mother. claimed he talked. sit at the station until would C.K. p.m. was lineup approximately in the participated Fox as the Griffin, identified Vincent previously had who viewed of C.K. identification positive not able to make shooter. Griffin was that C.K. suggested had detectives indicated that Griffin person who shot his friend. resembled another placed were C.K. and his mother lineup, After the Winstead, Buglio and as well Present were Detectives interview room. C.K., present, youth Bailey. again with his mother investigator rights mother indicated the rights. his Miranda Both he read minutes, for 30 to 40 answering questions After were understood. go Attorney. Assistant detectives left to contact State’s When (ASA Monreal) arrived, Attorney he went State’s Adam Monreal with to 40 the detectives into the interview room. After another 30 minutes conversation, during indicated that he was not which ASA Monreal lawyer, option court-reported chose the of a statement. C.K’s p.m ASA Monreal read approximately court arrived at 9:30 reporter *7 he his he told ASA Monreal understood rights. Though C.K. Miranda that he did not. rights, the Miranda C.K. testified suppress the motion to statement The trial court denied gave great degree, warnings, his Miranda because, to a C.K. was read day, present mother for most warning, assent to each had his mother, youth officer speak alone and had a was able to with questioner. The trial court also found did not serve as the present who attorney?” I was not an invocation question that C.K.’s “Do need an rights. of his constitutional
Following hearings, proceedings the State moved to have the objected the State had proceeding. an EJJ C.K. because designated to unsuccessfully moved to have the matter transferred previously unconstitutional. C.K. the EJJ statute was adult court. also claimed presented no evidence related objected C.K. that the State Specifically, to statutory factors that the required court was to consider before designating a an prosecution. case as EJJ proceeded matter thereafter to trial. C.K.’s statement was admitted against jury into evidence him. convicted C.K. of first degree murder.
ANALYSIS The Law of the Case argues C.K. on appeal that prohibited the State was seeking from receiving and an EJJ designation after unsuccessfully appealing the trial court’s denial of the motion to transfer under the rule of the law of the case. C.K. maintains many of the factors the trial court is that, consider are the argues same. C.K. a discretionary in transfer situation, the burden remains on the State. In an EJJ proceeding, the that, burden shifts such once the State burden, meets its initial minor must designation demonstrate that EJJ is not appropriate. C.K. argues that, differences, despite the the ultimate issue in both the EJJ designation proceeding juvenile and the motion in court to transfer to adult court subject is whether C.K. should be to an adult sentence. This court affirmed the trial court’s denial of the motion to transfer. argues implicit C.K. ruling in that is the notion an adult sentence is appropriate. not this multiple amounts to bites of the apple. that the rule law of the case should apply stop reraising State from punishment. the issue of adult responds
The State that the doctrine of law of the case is not ap- plicable where two statutes do not inquiry, involve the same legal do not or purpose have same effect mutually are not exclusive. The State maintains the EJJ designation a way is for the legislature juvenile to deal problems by with providing option an for dealing with more serious offenders. The State argues plain that a reading provisions of the two demonstrates that the provision transfer the EJJ designation mutually are not exclusive. The State major that one difference between transfer and an designation EJJ public. the consideration the best interest of the That is an element transfer, but not an If designation. subject a minor is found transfer, prison. contrast, she serves the sentence in By adult proceeding, guilty an EJJ defendant does not see adult prison Further, age until he or she reaches the of 21. the State maintains that an EJJ sentence does not result in the imposition inevitable adult sentence. The adult sentence can be vacated if the minor juvenile completes sentence, complies with the conditions of that sentence, during and does not commit a new offense term. The State characterizes an EJJ potential sentence and the adult *8 violate neither reoffend nor for the minor to component as an incentive argues that the also juvenile The State of the sentence. the conditions it states position its because supports the statute plain language of to in a motion proceeding the State from nothing prevents transfer. the court for an petitions general, when the State
“In only the sanctions subject is to delinquency, the minor adjudication of M., 335 Ill. In re Matthew Court] Act.” [Juvenile under the prescribed 2000). (West (2002), citing 70S ILCS App. 405/5 —120 to the minor’s commitment of these sanctions “The serious most the of Corrections until juvenile Department of the the division M., birthday.” Matthew App. Ill. 3d at twenty-first minor’s 2000). (West ap an under citing As alternative 705 ILCS 405/5 —750 circumstances, statutorily any prior “at time propriate defined trial,” commencement ask the trial court of the minor’s the State designated prosecution. as an EJJ 705 ILCS proceedings to have the (West 1998). 810(1) agrees designate “If trial the the court 405/5 — court, finding the upon then the proceeding prosecution, as an EJJ for in impose penalties provided one or more of the guilty, minor must adult [Juvenile Court] 5—710 of the Act and a conditional section omitted.) M., Matthew 335 Ill. (Emphasis criminal sentence.” (West 2000). 810(4) “In the event 705 ILCS 405/5 — or her sentence or the minor violates conditions offense, commits the trial must order the execution of a new court M., conditional adult criminal sentence.” Matthew (West 810(6) 1998). 286, citing 705 ILCS 405/5 — prosecu “To as an EJJ designation proceeding seek the (1) tion, years age or older allege the State must a minor felony an offense that if committed committed would be (2) allegations probable adult and there is cause to believe that (705 delinquency petition in are true. ILCS motion 405/5— 810(1) (West 2000)). probable there is If the trial court finds that true, allegations then the court must cause to believe the are court designate proceeding prosecution an EJJ unless the as evidence, finds, convincing that adult sentenc based on clear and following for the minor based on the ing appropriate would not be (2) (1) offense; alleged the minor’s factors: the seriousness of the (3) (4) age; culpabil history delinquency; the minor’s minor’s (5) offense; alleged the offense was ity committing whether (6) manner; premeditated aggressive committed in an or weapon com deadly when possessed whether the minor used 810(l)(b) (West mitting alleged offense. 705 ILCS 405/5 — 2000).” M., Matthew App. 3d at 286. way prosecu- alternatives such as replete law is with juvenile justice
tions work in speaks This judicial arena. discre- tion and the ability to craft sentences so to balance the competing society interests our has in punishment and However, rehabilitation. are there when yield By instances discretion must timing. we *9 right mean that proceed to as an prosecution EJJ is not unfet- legislature tered. The clearly contemplated the filing simultaneous of motions for EJJ designation and transfer stating that “[njothing in [the section] EJJ precludes the State filing from a motion for transfer 810(8) (West 1998). under Section 5—805.” 705 ILCS 405/5 — State chose not to proceed simultaneously in the alternative. We believe based upon timing of the events in this case and the case, doctrine of the law of the proceeding ceased to be avail- able when the of issue transfer resolved this court. doctrine,
“Under the law of the case a rule established as controlling particular in a case case, will continue to be the law the of long as the facts remain the People Rodriguez, same.” v. (2000), People Patterson, v. 154 Ill. 2d (1992). preclusion “The judicata, doctrines of res collateral estoppel and law of the prevent case a ‘taking defendant from two bites out of ” the same appellate apple.’ Tenner, 206 Ill. 2d (2002), quoting People Partee, “However, the doctrine is not applicable where either different parties or issues are involved.” Heating Lake Conditioning & Air Supply, Inc. v. Bluff Bank, Harris Trust & Savings 290-91 cit ing Co., Miscevich v. Commonwealth Edison 110 Ill. App. 3d
When the trial court discretionary made its determination that court, C.K’s case should not be transferred to adult the ultimate issue was whether he should be tried and punished Though as an adult. EJJ mechanism juvenile offers an extra a opportunity for defendant to by fulfilling avoid an adult sentence conditions sentence, the ultimate issue is also whether that defendant be should punished as an adult. Law the prohibits case the State from seeking an EJJ designation following the unsuccessful attempt ordinary at an transfer.
Juvenile Court Act C.K. next designation that of his case as an EJJ proceeding after the trial court determined that he be should (705 sentenced the Juvenile under Court Act et ILCS 405/1—1 (West 1998)) (the Act) seq. contrary legislative to the intent C.K. maintains that an EJJ proceeding is an alternative Act.. transfer proceedings. that the EJJ not statute should judicial to avoid chance for the State used as second allowed be be that the minor public’s interest the minor’s and finding that it is in the Act: adjudicated and sentenced under Act, Court added to the Juvenile provisions the EJJ were “When justice model’ the ‘balanced restorative legislature adopted punish- between to strike a balance juvenile justice, attempting ment and treatment.” follow- the EJJ statute responds application
The State plain prohibited is not a denial of a motion to transfer ing intent. The contrary legislative to the nor is it language of the statute history necessary go legislative it is not State maintains argues the is clear. The State language of the statutes plain when the under against prosecution statutory language prohibition contains no discretionary for following of a motion the EJJ statute the denial Act Juvenile Court purpose transfer. State away rehabilitation toward years pure in recent from changed has public juvenile accountability combination of that and concern for safety. motions for an EJJ
The EJJ allows for simultaneous statute 5—805. 705 ILCS ordinary and for transfer under section proceeding *10 (West 1998). and an proceeding for an EJJ The rules 405/5 —805 ordinary similar, significant are but not identical. This transfer ordinary there are extra because for an transfer under section 5—805 considerations a trial court must evaluate. making permit prosecution on a motion to
“In its determination laws, among other under the criminal the trial court shall consider matters: (ii) (i) offenses; alleged the minor’s his- the seriousness of the (iv) (iii) minor; age culpabil- the tory delinquency; of the of the (v) offense; committing alleged the whether
ity of the minor in aggressive premeditated the committed in an offense was (vi) manner; deadly possessed a whether the minor used (vii) offense; the minor’s weapon committing alleged the when willingness history services, including the minor’s of (viii) services, and the participate meaningfully in available available in the adequacy punishment or services C.K., 7, citing In re system.” slip op. at 705 juvenile justice 1998). (b) (West 805(3)(a), ILCS 405/5 — and not six of those factors requires The EJJ statute the first eight out of the Procedurally speaking, got the the State six last two. by this court in our by the trial court and reviewed factors considered to allow to C.K. prior applied order. It would be unconstitutional eight transfer State, having having the higher the after the burden under a rejected, attempt to make a second factors considered and 142
lesser burden. We questions statutory review construction under (2001). D.D., the de novo standard. In re 196 Ill. 2d cardinal rule of statutory give construction is ascertain and effect to legislature the true intent while presuming legislature did not intend to absurdity, injustice. create D.D., inconvenience or 418-19, citing In re Application County Treasurer, the Cook (1998), 185 Ill. 2d Latona, 184 Ill. 2d (1998), George Solich v. & Anna Portes Cancer Prevention Center of Chicago, Inc., (1994), Kraft, Ill. 2d Edgar, Inc. v. 138 Ill. 2d Libertyville School, High Henrich v. 381, 394 In order to comport with the Supreme Illinois Court’s guidelines statutes, for the interpretation and to ensure that constitution, State’s actions do not violate the we must conclude that legislature for intended the transfer motions under section 5—805 designations and EJJ under section simultaneously. 5—810 to be made Any other applicable construction statutes would lead to an unjust result.
Apprendi next argues that the EJJ statute is unconstitutional because it requires judge a jury and not a a to make factual finding that results in an imposition of a sentence that exceeds the maximum allowed under the Juvenile Court Act. C.K. claims this is a violation of rule in Apprendi Jersey, New 530 U.S. 147 L. Ed. 2d 120 S. Ct. permits He claims the EJJ statute imposition of upon dual sentence a trial court’s probable determination that there is cause to believe the minor an felony committed offense that would be a if committed an adult and the trial court makes a finding adult sentence would not be for appropriate the minor. C.K. was entitled to have a jury beyond determine a reasonable doubt whether he should twenty- receive sentence that extends beyond his birthday. first procedure also for lifting stay and, thereby, imposing the adult sentence He Apprendi. violates provision for execution of the portion adult of the sentence requires that the finding, trial court make a upon preponder- based *11 evidence, ance of the that the minor violated the conditions of the juvenile portion of his sentence. it preponderance Because uses the standard, the EJJ statute violates a Apprendi and such finding years, beyond will increase his sentence at least well juvenile first-degree allowed for murder. responds
The State provisions wholly comport the EJJ with case, In Apprendi. jury guilty C.K.’s a found him of the criminal of- first-degree fense of after considering murder all the evidence and had been of the offense every element determining that each and excluded of the elements were beyond a doubt. None proven reasonable Apprendi the EJJ statute. a jury’s result from the consideration juvenile court questions inapplicable Illinois has been held in a minor a violation urges this court to treat jurisdiction. The State any manner as juvenile in same of the terms of the sentence State hearing. a The probation criminal defendant that violates only process. minimal due require this should portion of the sentence argument, that the adult Apprendi a “beyond on than less finding by the trial court based amounts to a been ad necessary, has longer that the sentence is reasonable doubt” M., 3d 276 App. 335 Ill. by this court in In re Matthew dressed held: M., this court In Matthew the Second District of 805(2)transfer, requires the like a section prosecution, “An EJJ 5— a determination as to whether procedural trial court to make chapter juvenile adult sentence under V should receive an (West (730 et seq. ILCS Unified Code Corrections 5/5—1—1 805(2) 2000)). and an EJJ only difference between section 5— is prosecution in an EJJ prosecution is that the adult sentence juvenile stayed juvenile’s completion of the pending the successful designate a sentence. Because the trial court’s determination to prosecution adjudicate an EJJ does not the minor’s proceeding as a process require jury a to make such guilt, due would not Beltran, App. [See v. 327 Ill. procedural determination. (2002).] that, Although agree respondent we with the trial court designating proceeding prosecution, a as an EJJ sanction, greater a he has no due findings expose make him to hold right jury findings. make those Wetherefore process have a Beltran, inap is Apprendi articulated in for the same reasons M., App. Ill. 3d at 289. plicable present to the case.” Matthew M., that, although proof beyond As in Matthew we conclude stage juvenile during adjudicatory required reasonable doubt is dispositional stage of not hearing, apply that standard does M., citing People 3d at prosecution. App. Matthew 335 Ill. Winship, re 397 U.S. Beltran, App. 3d 685 In n.l, n.1 n.1, 90 S. Ct. 358, 359 25 L. Ed. “ proceed in criminal process on the due Apprendi only ‘Because bears ” M., ings, simply here.’ Matthew inapplicable the case is Beltran, Ill. 3d at 690-91. 288, quoting People Vagueness Court Act provision of the Juvenile C.K. next that the notice as to unconstitutionally give proper it fails to vague because He mechanism. trigger stay-lifting are what actions sufficient *12 argues the is sufficiently statute not clear toas inform C.K. of the standard to which he would need to conform his conduct. C.K. also argues the EJJ is vague statute because the trial court failed to specify the conditions under which a violation predicate will the imposition of an adult argues offense. He the EJJ provision fails specify type of new offense necessary justify imposition of the adult sentence. C.K. claims the term “new offense” has not been described with particularity. argues C.K. also the EJJ encourages statute arbitrary discriminatory enforcement and has been applied to him in an unconstitutional Specifically, argues manner. the trial court did not outline conditions he needed to fulfill in order to successfully complete juvenile portion of his sentence. responds
The State that C.K. is without standing to mount a facial applied” challenge and “as to the statute provisions where the of the EJJ statute have no on bearing present controversy. The State reminds this court that issue the center of this controversy is whether C.K’s case should been designated have proceed- ing. The State maintains that C.K. standing lacks to challenge the EJJ imposition statute’s of an adult sentence because he has not suffered any present injury in of need The redress. State that maintains C.K’s portion adult may, by law, the sentence operation of never be implemented. Even if this court sentencing would find the provision constitutionally vague, finding that would no impact have on C.K. in this The argues case. State it would be the nature of an advisory opinion.
The argues State in the language alternative that the of the statute sufficiently the sentence are specific possible as to the events that 810(6) would trigger imposition of the adult sentence. Section 5— explains the two conditions under which the adult sentence will be (1) imposed juvenile as: portion violation the terms of the of the (2) sentence; and the commission of a new offense. 705 ILCS 405/5— (West 810(6) 1998). If the minor does do things, not either of those two portion adult the sentence is operation vacated of law. To entertain arguments, C.K’s this court would have to accept his premise guidance that the statute provides no as to the meaning of the terms “offense” and The “conditions.” State that it is the trial court and legislature not the that defines conditions in each upon case based unique Though its circumstances. C.K. claims he does getting not know whether disciplinary ticket for a technical violation regulation of a doing poorly within the IDOC or in school result would in the stay being lifted, the State argues such confusion is unwar- very ranted. State obvious condition means C.K. should extension, complete By of his the State terms sentence. Because C.K. all the rules. with complying include would challenge must vagueness requirement, of that is afforded notice clearly it means “offense,” responds the State term fail. As to the during the term no criminal offense must commit the minor juvenile sentence. his or her provision the EJJ is whether before us question are vague. “Statutes unconstitutionally Act Court
Juvenile
constitutionality
challenging the
constitutional,
party
and a
presumed
establishing
invalidity.”
its
the burden
a statute has
Law,
578, 582
*13
vague for either
unconstitutionally
may be declared
“A criminal law
First,
may
provide
fail
the statute
reasons.
independent
of two
ordinary intel
person of
enable a
notice that would
the kind of
Chicago v.
City
is
ligence
prohibited.
what conduct
to understand
of
1849,
80,
Morales,
67,
41, 56,
Ed.
119 S. Ct.
144 L.
2d
527 U.S.
(2001); People v.
Izzo,
109,
v.
(1999);
195 Ill. 2d
113
1859
see
Grayned
City
Warren,
v.
(1996);
348,
also
Ill. 2d
356
see
173
of
2294,
104,
227,
Rockford, 408 U.S.
108,
222,
2d
92 S. Ct.
33 L. Ed.
(1972) (due
‘give
person
that a statute
process requires
2298-99
opportunity to know what
ordinary intelligence a reasonable
of
Second,
may
a statute
may
accordingly’).
prohibited, so that he
act
explicit
unconstitutionally
provide
vague if it fails
be declared
it,
authorizing
even
apply
for those
thus
standards
who
Morales,
discriminatory enforcement.
encouraging arbitrary and
Grayned,
80,
1859;
56,
119 S. Ct. at
see
at
“In
intention
of the
give effect
of
court
is to ascertain and
this
Cryns, 203 Ill. 2d
264,
People ex rel. Sherman v.
279
legislature.”
Lieberman,
300,
(2002),
In re
307
Detention of
201 Ill. 2d
citing
Cook,
County
Ill. 2d
Michigan
Avenue National Bank
191
and
(2000).
statutory
are
493,
“All other
rules of
construction
503-04
279, citing
Cryns, 203 Ill. 2d
principle.”
to this cardinal
subordinate
(2001), and Hen
Comm’n,
225,
Sylvester v. Industrial
232
School,
381,
“We
Libertyville High
rich v.
186 Ill. 2d
387
language of
by examining legislature
intent of the
ascertain the
legislature’s
statute,
indicator of the
is ‘the most reliable
which
”
279,
Cryns, 203
Ill. 2d at
objectives
enacting
in
a
law.’
particular
Bank,
504,
Michigan Avenue National
191 Ill. 2d at
quoting
language
“The
Yang City Chicago,
96,
Ill. 2d
103
195
popularly
plain, ordinary
must be afforded its
statute
Springfield
Bubb v.
308;
meaning (Lieberman, understood
(1995)),
School District
167 Ill. 2d
and we are
give
statutory
fullest,
language the
rather
narrowest,
than the
possible
(Lake
meaning to which it is susceptible
County Board
Review v.
(1988)).
Board,
Property
Appeal
Tax
119 Ill. 2d
This court
will not depart
plain
from the
a
language
statute
reading into it
exceptions,
limitations
or conditions
express
that conflict with the
legislative
Wallach,
intent. Petersen v.
(2002);
Yang, 195 Ill. 2d
Cryns,
at 103.”
provisions
Ill.
at 279. “All
of a
statutory enactment are
Cryns,
viewed as a whole.”
203 Ill. 2d at
Bank,
citing Michigan
504; Bubb,
Avenue National
191 Ill. 2d at
“Therefore,
Ill. 2d at
phrases
382.
words and
must be interpreted in
light of
provisions
other
relevant
of the statute
and must not be
Cryns,
279-80,
construed in isolation.”
citing Sylvester,
“When it appears that minor jurisdic- convicted in an extended (1) tion prosecution under subsection has violated the sentence, conditions alleged his or her or is to have committed upon new filing petition of a stay, to revoke the offense may, notice, court without issue a warrant for the arrest of the minor. a hearing, preponderance After if the court finds offense, evidence that the minor committed a new the court shall *14 previously order imposed execution of the adult criminal sentence. hearing, After a by if the court finds a preponderance of the evidence that the minor committed a of violation his or her by offense, sentence other than may a new the court order execu- previously imposed tion of the adult criminal sentence or juvenile him existing continue or her on the sentence with or modifying enlarging Upon without the conditions. revocation of stay the of the adult criminal imposition sentence and of that sentence, jurisdiction juvenile the minor’s extended status shall be on-going jurisdiction terminated. The over the case shall minor’s be assumed the juvenile jurisdic- adult criminal court and court report imposition tion shall be terminated and a of the adult Department sentence shall be sent of State Police.” added.) (West 1998). 810(6) (Emphasis 705 ILCS 405/5 — disagree We the theory with defendant’s EJJ statute unconstitutionally por- order to be vague. eligible In to have the adult vacated, successfully complete tion of the sentence a defendant must juvenile portion of the sentence. believe that a reasonable We in the EJJ as included “offense” the term interpret mind would Court Supreme Illinois As the offense. mean a criminal statute to reasonable more definite instructs, can made a statute be “[i]f interpretation.” construction, give must statute the court Teachers, Louis East St. Local Louis Federation East St. of Panel, Oversight 189 Financial School District No. Because the Lang, (1997), citing People juvenile with the comply the failure to EJJ statute both covers offense, we find it reasonable of a new and the commission sentence would, if without something that done “offense” means to assume that juvenile In context subject a minor to a sentence. history, any previous legislature must have Act, we find the Court of the entire Juvenile in the such is defined offense as as a criminal meant “offense” Criminal Code. Trial Court Error of and Related
Ineffective Assistance Counsel that, EJJ once the State argues provisions, under the next for EJJ proof qualifies that a minor has met its initial burden prove by to defendant to clear and designation, the burden shifts designated that the case not be as an convincing evidence should statutory factors in mak- prosecution. The trial court must look at he received ineffective assistance ing this determination. on those lawyer present any failed to evidence counsel because was as a statutory present factors. C.K. the failure evidence law, strategic not a decision. misapprehension result did not court that she believed the EJJ rules lawyer indicated the trial court mitigating her to evidence. She believed present allow nothing for defense to do. C.K. had and so there was no discretion history, dealing lack of criminal there was evidence with maintains intervention, amenability to in the for services therapeutic need court, testimony why an adult sentence would expert trial counsel presented, but the inappropriate be that could have been petition the EJJ judge failed to Because the who evaluated do so. transfer, motion to he was judge prior not the same who heard the C.K. also making the determination. deprived of critical information in regarding take argues that the trial court’s failure to evidence designation void. C.K. also makes the EJJ relevant factors counsel, trial that, light of the claimed ineffective assistance the fac- duty inquire into independent court should have fulfilled an designation. tors relevant to an EJJ to the EJJ of what was relevant responds
The State in terms *15 The EJJ determination, of counsel. C.K. received effective assistance being ap- by enumerate the factors cited statute does not 148
propriate considerations. While these be relevant considerations determination, for a argues transfer the State they are not to relevant an EJJ determination. The EJJ statute the lists relevant factors as offense, the history age, seriousness the the of delinquency, culpabil- ity offense, in the commission of the the whether offense commit- ted in an aggressive premeditated manner, and deadly and whether a weapon possessed was used argues the time. The State the and/or juvenile court is not asked to assess the factors cited The State maintains that probable evidence showed cause believe that C.K. shot an gang unarmed rival merely member because of his gang membership. presented counsel detailing C.K’s evidence what detectives, officers, police and Attorney say assistant State’s would to attempt probable to rebut the claim testimony cause. Their would go also toward the claim that C.K. did not do the crime at all. After considering sides, all evidence from judge granted both designation. motion for the EJJ The State also to the extent that C.K. present now claims his counsel failed to sufficient evidence, point any fails to real regarding evidence how the offense, seriousness his history, age, criminal his culpabil- ity for the crime against would militate the application of the EJJ statute. He fails also to mention that the offense was committed in an aggressive premeditated manner with a deadly weapon. Accord- ingly, the State not one of statutorily sanctioned consider- ations in his emphasizes inures favor. The State it would be improper interject for this court to transfer factors into an EJJ inquiry. The State also that the trial court considered that which it was supposed designation to consider. EJJ is not void. As al- leged trial error for failure to conduct an independent inquiry into the factors, the State argues that the trial court considered every ap- propriate making factor before its determination.
“The sixth and fourteenth amendments of the United States guarantee right Constitution fundamental in a defendant effectively criminal case to be People assisted counsel.” Spann, 425, (2002), Const., 332 Ill. citing VI, U.S. amends. XTV competent, “Effective assistance counsel refers to not perfect, representation.” Odle, Spann, People v. Supreme Illinois Court has repeatedly counsel, “[t]o held that demonstrate ineffective assistance defendant (1) must attorney’s show that his performance objective fell below an (2) standard of reasonableness, attorney’s deficient performance prejudice resulted in defendant.” v. Villar real, Williams, 198 Ill. 2d citing People v. (1998); Washington, Strickland v. L. U.S. *16 (1984). “In to establish 2052, order 2064 674, 693, S. Ct. 104
Ed. 2d
that
claim,
must show
defendant
ineffective-assistance-of-counsel
an
that,
unprofes
the counsel’s
but for
probability
is a reasonable
‘there
different.”
have been
of
would
errors,
proceeding
result
sional
Strickland,
(2002), citing
722,
3d
725-26
Brooks,
App.
334 Ill.
v.
People
A reasonable
698,
Ct. at 2068.
L.
2d at
104 S.
694,
at
80
Ed.
466 U.S.
in the
confidence
sufficient to undermine
probability
ais
probability
rendered the
performance
outcome,
deficient
namely, that counsel’s
fundamentally unfair.
proceeding
trial unreliable or the
result of the
Strickland,
(2000),
466
361,
citing
Enis,
2d
People
194 Ill.
376-77
v.
Evans,
2068;
v.
698,
People
at
2d at
104 S. Ct.
694,
at
80 L. Ed.
U.S.
Brooks,
There is
83,
(1999);
Ill.
3d at 725-26.
Ill.
334
186
2d
93
the wide
within
performance
that counsel’s
falls
strong presumption
376-77,
Enis, 194 Ill. 2d at
assistance.
range
professional
of reasonable
694-95,
Ct. at
Strickland,
689,
L.
2d at
104 S.
Motions Arrest C.K. argues next that the trial First, court erred on two fronts. trial court erred when it denied C.K’s suppress motion to the state- ment. C.K. invoked right which counsel police investigators ignored. youth also that the officer and C.K’s mother took no actions to ensure that C.K. understood his rights. such, As presence their was immaterial and have contributed to the coerciveness of the environment. C.K. argues that his mother was in no position help him because she had been police days harassed leading up to C.K’s arrest. C.K. also argues that no one took explain the time to to him the meaning of the *17 rights he said he understood. This was combined with his lack of experience justice with the system, criminal the interroga- seven-hour tion, his hysteria, mother’s and the officers’ C.K. argues threats. that totality the of the circumstances makes the involuntary. statement
C.K. further argues that the arrest quashed should have been and resulting the suppressed. confession C.K. maintains the arrest was product Second, of an probable unlawful seizure. if there was cause it was illegally based on argues seized evidence. C.K. police lacked specific or credible evidence to arrest him. police While the had the name Chris,” they “Little lacked a physical description. Griffin had identified another boy as the shooter. When the officers went to C.K’s house, mother’s did they gather evidence, not additional specifically any evidence that C.K. traveled under the name “Little The Chris.” single piece of evidence at obtained C.K.’s mother’s house was photograph of C.K. The State failed to establish that officers knew person that the in the photograph grand shown to witnesses in jury argues was fact C.K. his give C.K. mother did not police permission general to do more than a premises search of her give permission and did not for anything to be removed from the house.
The responds properly State that the trial court motion denied the suppress to request where evidence established that C.K. did not attorney, an speak did not to police, provided refuse with the was warnings understood, Miranda that he indicated he and was ac- companied by got speak and the chance to alone with his mother at stages interrogation. argues most nothing State there is suggest record to that C.K. could not for himself if he articulate
151 ar- quash As to the motion to attorney present. felt wanted C.K. was not err because rest, argues the trial court did the State also community Little Chris. The State in the police to known C.K. as Little Chris. argues that identified witnesses with a presents the court suppress “A to statements motion 387, Flores, 315 Ill. 3d App. and fact.” v. question People mixed of law Kidd, 2d 25-26 “Where v. citing People 391 credibility of and the wit essentially uncontroverted the facts are Flores, Ill. issue, 315 appropriate.” review is nesses is not at de novo 391-92, Oaks, Ill. 2d 447-48 v. App. People reviewing a “[w]hen trial However, dispute, the facts are in where statements, give we deference suppress decision on a motion court’s findings only if findings and will reverse those to that court’s factual v. People evidence.” they against weight the manifest are DeSantis, (2003), citing v. Graham, People 3d App. Ill. (2000); Allen, App. 3d Ill. (1991) Gray, 212 Ill. (1993), citing People (when to remain right has invoked his to counsel and defendant who voluntarily rights, such the trial court’s is found to have waived silent manifestly it is errone finding on the issue will not be reversed unless ous). “Do I
During asked Detective Winstead interrogation, C.K. that, lawyer?” owing youth inexperience need a C.K. his right police, question effectively with the an assertion of his youth neither the officer nor his mother to counsel. C.K. fact, rights. took that he In actions ensure understood youth may have presence claims the of his mother and the officer helped to to the coercive the trial contribute environment. put court much their when C.K. was inter- emphasis presence too on rogated. [citation], a defendant “[u]nder is clear Miranda law *18 any protections his fifth amendment when he asserts ‘in man
invokes
right
right
ner’ his
counsel. Once the accused has invoked
an at
counsel,
right
this
he has consulted
cannot waive
unless
v. Tack
torney
People
a
the officers.”
or reinitiated
conversation with
Arizona,
ett,
406,
(1986),
v.
451
App.
quoting
3d
Edwards
417
(1981).
“Do I
378,
asking
As for
477,
U.S.
68 L. Ed. 2d
indication
of a
attorney
manifestation
desire for an
required
”
Tackett,
than was made
People
App.
406,
here.’
v.
Ill.
150
3d
418
(1986), quoting Krieger,
sion are well established. The test of voluntariness is whether the
“
respondent
‘made
freely,
the statement
voluntarily, and without
compulsion
sort,
or
of any
inducement
[respondent’s]
whether the
”
will was overcome at the time he or
G.O.,
she confessed.’
In re
191
37,
(2000),
Ill. 2d
54
quoting
Gilliam,
People v.
484,
500
(1996).
so,
If
the confession cannot be deemed the product of a rational
intellect and a free will. Factors to be considered in determining
whether a
voluntary
confession was
include the defendant’s age, intel
ligence, background, experience,
education,
mental capacity,
physi
and
cal condition at the time
questioning;
the legality and duration of
detention;
questioning;
duration of the
any
physical or
mental
police, including
abuse
the existence of threats or
promises. Additionally,
given
consideration must be
to whether or not
the defendant was informed of
rights.
his constitutional
People v.
(1997).
Fuller,
651,
292
App.
Ill.
3d
665
juvenile’s
When a
confession
issue,
is at
additional factors come
play, including
into
day
the time of
presence
and the
parent
of a
or other adult
juvenile’s
interested in the
(1992).
Brown,
People
welfare.
v.
Although presence youth of a per officer does not se make juvenile’s voluntary, significant confession it G.O., factor. In re 55; H., 2d Ill. In re Lashun 284 Ill. App. 3d Ad considered, ditional factors must be day such as the time of and the presence of a parent juvenile’s or other adult concerned about People Lee, (2002), citing welfare. 3d Kolakowski, 319 Ill. App. J.J.C., In re Ill. significant The trial court found the fact parent This, that both a a youth present. officer coupled were with the fact C.K. and his repeatedly mother indicated to the police they rights. understood the Miranda al- C.K.’s mother was
153 during time once the more than her son privately confer with lowed to properly court evalu- the trial interrogated. believe being We he was denied and emphasis undue giving without relevant factors ated the motion to suppress. the from the denial error resulted claimed trial
The second did not the police quash his arrest. C.K. C.K.’s motion to exists for “Probable cause justify to his arrest. probable cause have the known to circumstances totality of the facts and arrest the when believe that reasonably person would prudent is that a officers such D.W., a In re 341 or has crime.” committing is committed suspect the Ill. 2d (2003), Montgomery, v. 112 517, citing People Ill. 3d 523 (1986). concept nontechnical 517, cause to arrest a 525 “Probable confronting according totality of the circumstances determined Sims, 483, Ill. 2d People arrest.” v. 167 officers at the time of the the (1991). Edwards, 108, (1995), 144 Ill. 2d 128 citing People v. 500 correctly probable the trial court found determining “In whether accused, limited to the reviewing court is not cause to arrest hearing, pretrial suppression at the circuit court’s presented evidence the defendant’s that was offered at may but also consider evidence Patterson, Ill. 2d Sims, 500, citing v. 154 People trial.” Melock, 423, (1992), (1992), v. 149 Ill. 2d 433 and People (1984). Cabellero, practi and 102 Ill. 2d Commonsense People v. viewing totality properly cal are considered considerations surrounding determination. probable the circumstances cause (1995). Robinson, People v. 167 Ill. 2d of the trial suggests Our of the record that the decision review shooting identified the Eyewitnesses court was the correct one. to belonging Cosgrove. vehicle Jessica Another witness involved clothing measurements and similar those described shooter with anonymous tip led the officers to descriptions These and an Quinn. provided These Cosgrove Jessica and Melissa witnesses on police Little Once locked in the name with the nickname Chris. gang street knew Chris, experience the officers with with C.K.’s Little asked, police and C.K. are one and the same. When Little Chris “A long-term familiarity with C.K. Quinn confirmed that had she on an cause be based police knowledge probable officer’s are and, supplied tip if the in such essential tip informant’s facts D.W., cause, tip must be reliable.” finding probable Patterson, 523, citing People v. Ill. App. year, Quinn police C.K. for at least a and the Because knew therein, gang the members wé conclude
knew of C.K’s street
prob
there was
probable
justify
there
cause to
the arrest. Because
C.K.,
fruit of
photograph
the seizure of a
is not
able cause to arrest
further.
poisonous
tree.
need not discuss the matter
We
Sentence
“ ‘Reviewing courts
the power
authority
have
under
615(b)(4)
615(b)(4)]
Supreme Court
[134
Rule
Ill. 2d R.
to reduce a
”
imposed by
sentence
People
Jones,
trial court.’
168 Ill. 2d
quoting
O’Neal,
297-98
give
We recognize and
appropriate deference to the trial
it
court where
due,
*20
is
portion
but must
sentence,
conclude that the adult
of C.K.’s
imposed
part
as
of the EJJ proceedings,
However,
is an error.
because
we
find no error with
portion
sentence,
the
of the
we reduce
C.K.’s sentence of incarceration
twenty-first
to his
birthday. We reach
deliberate,
this conclusion after
“considerate caution and circumspec
People Turner,
tion.”
156 Ill. 2d
(1993),
citing People v.
“
Taylor,
33 Ill. 2d
‘[T]he mere fact that the trial
court
a superior
has
opportunity to make
concerning
a determination
final disposition and punishment of a defendant does not
imply that
”
particular sentence imposed
always just
Jones,
is
equitable.’
2d
quoting O’Neal,
Ill.
at
CONCLUSION light foregoing, In C.K’s conviction and sentence as modi- is fied affirmed.
Affirmed as modified.
HARTIGAN, J., concurs. CAMPBELL, PRESIDING JUSTICE concurring specially part dissenting in part: majority opinion The correctly concludes that defendant’s murder affirmed, holding conviction must be but the that an EJJ transfer was contrary unavailable in this case is to our case law and the plain language of the EJJ statute. The EJJ statute allows State to file an EJJ petition any “at time prior to commencement of minor’s 810(1) (West 1998). trial.” 705 ILCS majority opinion’s The 405/5 — contrary petition conclusion that any not be filed at time prior doctrine, to trial rests on the “law of the case” which states “ ‘a rule controlling particular established as in a case will case, long continue to be law of the as as the facts remain the ” App. same.’ 348 Ill. quoting People Rodriguez, Patterson, citing People v. majority case, applies holds that doctrine in this but that, “[u]pon the EJJ statute provides successful completion juvenile sentence the court shall vacate the adult criminal sentence.” 1998). 810(7) (West added.) defendant ILCS (Emphasis 405/5 — resulting in the arise an adult sentence new may serve future if facts is not sentence, though the court completion of in an unsuccessful unless the minor the adult sentence execution of required to order (West 1998). 810(6) ILCS commits new offense. 705 later 405/5 — Thus, inapplicable. of the case doctrine the law and transfer designation must move for EJJ A rule that the State economy, support finds no simultaneously judicial but promote would “ [i]t would be majority in obiter dicta in the law. The states State, having the after applied to C.K. to allow unconstitutional fac [discretionary adult] transfer higher having eight burden attempt under lesser rejected, to make a second considered and tors However, provi no majority 141. cites burden.” 348 Ill. Constitutions, law so hold or Illinois or case of the United States sion Thus, case, presumption not abandon the ing. in this this court should constitutionality afforded Illinois statutes. *21 Lenahan, LENAHAN, Special KAREN Adm’r of the Estate of Shawn al., Deceased, Plaintiff-Appellant, v. OF CHICAGO et UNIVERSITY Defendants-Appellees. Division) (5th 1—02—2513, cons.
First District Nos. 1—02—2867 Rehearing May 2004. Opinion filed March denied 2004.