                                      2014 IL App (1st) 143316
                                            No. 1-14-3316
                                    Opinion filed September 9, 2015


                                                                      THIRD Division
     ______________________________________________________________________________

                                                IN THE

                                 APPELLATE COURT OF ILLINOIS

                                          FIRST DISTRICT

     ______________________________________________________________________________

     In re DESHAWN G., a Minor,                ) Appeal from the Circuit Court
                                               ) of Cook County.
     (THE PEOPLE OF THE STATE OF ILLINOIS,     )
                                               )
           Petitioner-Appellee,                ) No. 14JD02
                                               )
     v.                                        )
                                               ) The Honorable
     DESHAWN G., a Minor,                      ) Stuart P. Katz,
                                               ) Judge, presiding.
           Respondent-Appellant.)              )
     ______________________________________________________________________________

                  JUSTICE FITZGERALD SMITH delivered the judgment of the court, with
     opinion.
                  Justices Howse and Cobbs concurred in the judgment and opinion.



                                                OPINION

¶1          This appeal arises from the trial court's October 2014 order following a jury trial

        adjudicating respondent-appellant Deshawn G. to be a violent juvenile offender and

        sentencing him to the Department of Juvenile Justice (DOJJ) until the age of 21, pursuant to

        the mandatory sentencing provision of the Juvenile Court Act of 1987 (the Act) (705 ILCS

        405/5-820 (West 2012)). That provision of the Act applies upon a minor's second finding of
     1-14-3316


        delinquency for an offense that, in an adult case, "would have been a Class 2 or greater

        felony[,] involving the use or threat of physical force or violence," or which involves a

        firearm. 705 ILCS 405/5-820 (West 2012).

¶2            Respondent was adjudicated delinquent based on a petition alleging three counts of

        aggravated unlawful use of a weapon (AUUW) based on his lack of a valid Firearm Owner's

        Identification (FOID) card; his age (under 21 years old); and his prior felony conviction.

        Based on the prior adjudication of delinquency for aggravated robbery (a Class 1 offense)

        and the Class 2 nature of the current offenses which were based upon a prior AUUW

        conviction, the State filed a notice of intent to prosecute respondent as a violent juvenile

        offender (VJO) under section 5-820 of the Act (705 ILCS 405/5-820 (West 2012)). After a

        jury trial, respondent was adjudicated delinquent of two counts of AUUW based on his lack

        of a valid FOID card and his youth. Respondent was later sentenced to a mandatory term of

        confinement until age 21. Respondent appeals, contending: (1) the subsections of the

        AUUW statute under which he was convicted are not severable from the section of the

        AUUW statute that was found unconstitutional in People v. Aguilar, 2013 IL 112116, and

        are, therefore, themselves unconstitutional; (2) the violent juvenile offender provision of the

        Juvenile Court Act under which respondent was sentenced is unconstitutional; (3) the

        admission of a certification alleging respondent's lack of a valid FOID card, prepared by a

        non-testifying witness, violated his right to confrontation; and (4) respondent's adjudications

        of delinquency for AUUW based on the lack of a valid FOID card and possessing a firearm

        while under age 21 violated the one-act, one-crime doctrine. For the following reasons, we




                                                    2
     1-14-3316


         vacate respondent's adjudication for AUUW based on the lack of a FOID card, and affirm in

         all other respects. 1

¶3                                                I. BACKGROUND

¶4               In January 2014, the State filed a petition for adjudication of wardship for respondent's

         possession of a firearm on New Year's Eve 2013. Through the petition, the State alleged

         three Class 2 felony counts of aggravated unlawful use of a weapon: count I for possessing a

         firearm without a firearm owner's identification card under section 24-1.6(a)(3)(C) of the

         Criminal Code of 2012 (the Code) (720 ILCS 5/24-1.6(a)(3)(C) (West Supp. 2013)); count II

         for possessing a firearm while under age 21 and not engaged in lawful activities under the

         Wildlife Code under section 24-1.6(a)(3)(I) of the Code (720 ILCS 5/24-1.6(a)(3)(I) (West

         Supp. 2013); and count 3 for possessing a firearm while having a prior adjudication of

         delinquency for a crime that would be a felony if committed by an adult under section 24-

         1.6(a)(3)(D) of the Code (720 ILCS 5/24-1.6(a)(3)(D) (West Sup. 2013)). Prior to trial, the

         State nolle prosquei'd the unlawful possession of a firearm and the AUUW based on the prior

         adjudication, and the cannabis possession charge was stricken.

¶5               Prior to trial, the State filed written notice that it intended to prosecute 16-year old

         respondent as a violent juvenile offender pursuant to section 5-820 of the Act (705 ILCS

         405/5-820 (West 2012)) because the instant offense was a Class 2 felony and he had a prior

         June 2012 adjudication of delinquency for the Class 1 felony of aggravated robbery.

         Respondent then filed motions to dismiss the VJO petition, alleging (1) his prior

         adjudications of delinquency were not equivalent to convictions so as to classify his current

         AUUW charges as Class 2 felonies, thus making him subject to the VJO statute; and (2) that

     1
       We initially filed this decision as an unpublished order. We file this opinion now after granting the State's
     subsequent motion to publish.

                                                                3
     1-14-3316


        prosecution under the VJO statute represents an improper double enhancement. Respondent

        also filed motions to strike the Class 2 designation of the AUUW counts, alleging that the

        prior AUUW adjudication upon which they are based was unconstitutional based on People

        v. Aguilar, 2013 IL 112116, and that it was unclear which counts formed the basis for the

        prior AUUW adjudication. Following a hearing, the trial court denied these motions.

¶6            Respondent also moved in limine to bar the State from introducing a certification from

        the Illinois State Police firearm services bureau database which indicated that respondent had

        never been issued a FOID card. The trial court denied the motion, ruling that the document

        was a "signed and sworn" self-authenticating certification.

¶7            The State proceeded to trial on counts I (possession of a firearm without a firearm

        owner's identification card under section 24-1.6(a)(3)(C) of the Code (720 ILCS 5/24-

        1.6(a)(3)(C) (West Supp. 2013)) and count II (possession of a firearm while under age 21 and

        not engaged in lawful activities under the Wildlife Code under section 24-1.6(a)(3)(I) of the

        Code (720 ILCS 5/24-1.6(a)(3)(I) (West Supp. 2013)).

¶8            Respondent had a jury trial. At trial, Chicago Police officer Reginald Weatherly

        testified that on December 31, 2013, he was in uniform traveling in an unmarked police

        vehicle with three other police officers. The officers were conducting a safety mission in the

        vicinity of 45th Street and Ellis Avenue in Chicago. He described a safety mission is "where

        we have the majority of our team or all the officers in the districts ride on New Year's Eve

        because we have a higher volume of calls for shots fired, so we'll ride four men to a car."

¶9            It was a snowy night, and the streets were covered in snow. Around 9:50 p.m., the

        officers saw a "group of guys" walking along the sidewalk and in the street. The area was lit

        by regular streetlights. Recognizing some of the individuals, including respondent, Officer


                                                     4
       1-14-3316


          Weatherly pulled up near the group and told them to slow down. Some stopped, but one

          person, whom Officer Weatherly identified in court as respondent, continued walking.

          Officer Weatherly addressed respondent by his street nickname, saying, "What's up Slushy?"

          Respondent was the only person in the group not wearing a coat. Officer Weatherly asked

          respondent, "You're not speaking today, Slushy?" Respondent looked at the officer and

          continued walking. Officer Weatherly then cracked his car door in order to get out of the car,

          and respondent fled.

¶ 10            As respondent ran, Officer Weatherly noticed that respondent was holding his side by

          his hip and pocket. Based on prior experience, then, Officer Weatherly believed respondent

          had a gun. Officer Weatherly attempted to restrain some of the other individuals in the group

          who were running into the street. As he was doing so, he looked at respondent and saw him

          fall. Officer Weatherly saw his partner, Officer Marcus Duncan, running toward respondent.

          A short while later, Officer Duncan returned carrying a handgun. Soon after, backup officers

          arrived, who eventually detained respondent.         Officer Weatherly traveled to where

          respondent was being detained and indentified respondent as the person who ran from him

          earlier. Officer Weatherly testified that Officers Duncan, Hunt, and St. Andrew identified

          respondent, as well. On cross-examination, Officer Weatherly agreed that he never saw

          respondent with the handgun. Officer Weatherly testified that respondent did not produce a

          FOID card.

¶ 11            Officer Duncan testified to much of the same activity as did Officer Weatherly. In

          addition to corroborating testimony, Officer Duncan testified that when Officer Weatherly

          called out to respondent, respondent picked up his pace, first walking faster and then running.

          At that point, Officer Duncan exited the squad car and watched respondent. There was


                                                      5
       1-14-3316


          nothing between himself and respondent that would have blocked his vision. The street

          lighting was such that Officer Duncan had no difficulty seeing respondent's face. While

          Officer Duncan watched, respondent lost his footing and fell to the ground. When he stood

          up, Officer Duncan saw respondent look left and right, and then bend down, extending his

          right arm into the snow. Officer Duncan began chasing after respondent. When Officer

          Duncan reached the spot where he had seen respondent reach into the snow, he saw a "nine

          millimeter handgun sticking out of the snow with the butt facing up." The only other

          impression in the snow was a handprint. Officer Duncan retrieved the weapon, noting that it

          was fully loaded. Officer Duncan later identified respondent as the individual he had seen

          reach into the snow.

¶ 12            The State introduced respondent's birth certificate, showing he was born in 1997, and

          therefore was 16 years old at the time of the crime.         The State also introduced, over

          respondent's objection, a document from the Illinois State Police certifying that respondent

          had never been issued a Firearm Owners Identification Card.

¶ 13               Respondent rested without testifying and without putting on any evidence.

¶ 14            The jury found respondent guilty of both counts of AUUW, one based on possessing a

          firearm without a valid FOID card and the other for possessing a firearm while under the age

          of 21. At a later dispositional hearing, the State introduced certified copies of respondent's

          prior felony convictions for AUUW (2013); and aggravated robbery, robbery, aggravated

          battery, and theft from person (2012). The State asked the trial court to sentence respondent

          as a violent juvenile offender with a sentence to "at least 21 years of age." Defense counsel

          renewed respondent's challenges to the VJO statute, but acknowledged that the trial court had

          previously ruled on the motions in which he objected to the VJO statute. The trial court


                                                       6
       1-14-3316


          sentenced respondent under the VJO statute to a mandatory term of confinement until the age

          of 21, noting that respondent would receive day-for-day good conduct credit.

¶ 15            Respondent appeals his adjudication and sentence.

¶ 16                                          II. ANALYSIS

¶ 17                                i. Respondent's Severability Claim

¶ 18            On appeal, respondent first contends that his adjudications for aggravated use of a

          weapon under section 24-1.6(a)(3)(C) and (a)(3)(I) are unconstitutional.         Specifically,

          respondent contends that because section (a)(3)(A) of the AUUW statute was struck down in

          Aguilar as unconstitutional, and sections (a)(3)(C) and (a)(3)(I) of the AUUW statute under

          which he was adjudicated are not severable from the portion that was struck down, sections

          (a)(3)(C) and (a)(3)(I) of the AUUW statute are also unconstitutional. Therefore, argues

          respondent, his two AUUW adjudications should be reversed. Specifically, he argues: "In

          People v. Aguilar, subsection (a)(3)(A) of the AUUW statute was declared unconstitutional

          on its face. [Citation.] That provision spoke to the essential conduct protected by the Second

          Amendment—bearing a loaded firearm outside the home for self-defense. Because the

          Aguilar provision concerned the very act at the heart of the AUUW statute, and because that

          act cannot be criminalized, the provisions defining other versions AUUW, including

          subsections (a)(3)(C) and (a)(3)(I), are not severable from the provision struck down by

          Aguilar. This court should reverse [respondent's] adjudications as the two provisions of the

          AUUW statute are unconstitutional." For the following reasons, we disagree.

¶ 19            On July 9, 2013, the Illinois General Assembly enacted the Firearm Concealed Carry

          Act, which, in part, "amended the AUUW statute to allow for a limited right to carry certain




                                                      7
       1-14-3316


          firearms in public. See Pub. Act. 98-0063 (eff. July 9, 2013) ***." Aguilar, 2013 IL 112116,

          ¶ 22 n.4.

¶ 20            In Aguilar, our supreme court considered the constitutionality of section (a)(3)(A) of

          the preamendment version of the AUUW statute. The court held that the Class 4 form of

          AUUW as set forth in section 24-1.6(a)(1), (a)(3)(A), (d) (720 ILCS 5/24-1.6(a)(1),

          (a)(3)(A), (d) (West 2008))—the preamendment version of the statute which "categorically

          prohibit[ed] the possession and use of an operable firearm for self-defense outside the

          home"—violated the second amendment. Aguilar, 2013 IL 112116, ¶¶ 21-22.

¶ 21            In the case at bar, respondent committed the AUUW on December 31, 2013. This was

          nearly six months after July 9, 2013, the day the amended statute took effect. The Aguilar

          court made it exceedingly clear that its decision only affected the preamended AUUW

          statute. See Aguilar, 2013 IL 112116, ¶ 22 fn4 ("Neither the Firearm Concealed Carry Act

          nor the amended AUUW statute is at issue in this case."). Respondent's argument, therefore,

          fails insofar as it is based entirely on Aguilar and its progeny, as Aguilar does not apply to

          the crime at hand.

¶ 22            Moreover, even if Aguilar did apply to respondent's crime and we were to consider this

          issue on the merits, since the filing of the briefs herein, our supreme court has issued two

          opinions resolving this issue. People v. Mosley, 2015 IL 115872; In re Jordan G., 2015 IL

          116834. In those opinions, the court found subsections (a)(3)(C) and (a)(3)(I) do not violate

          the second amendment, and held that subsections (a)(3)(C) and (a)(3)(I) are severable from

          the provision found to be unconstitutional in Aguilar. Mosley, 2015 IL 115872, ¶¶ 27-31; In

          re Jordan G., 2015 IL 116834, ¶¶ 16-19. Respondent acknowledges that this court is bound




                                                      8
       1-14-3316


          by Mosley and In re Jordan G., but argues that both opinions were decided incorrectly.

          Respondent is correct that we are bound by the Mosley and In re Jordan G. decisions.

¶ 23                     ii. The Constitutionality of the Violent Juvenile Offender Provision

¶ 24            Next, respondent contends the provision under which he was adjudicated, the violent

          juvenile offender provision of the Act, is unconstitutional because it removes the sentencing

          court's discretion in sentencing minors. Relying on Miller v. Alabama, 567 U.S. ___, 132 S.

          Ct. 2455 (2012), respondent asserts that the VJO provision has many constitutional

          infirmities.

¶ 25                          A. Respondent's Facial Challenge to the VJO Provision

¶ 26            In addressing a challenge to the constitutionality of a statute, we begin with the

          presumption that the statute is constitutional. See People v. Greco, 204 Ill. 2d 400, 406

          (2003); accord People v. Malchow, 193 Ill. 2d 413, 418 (2000). If reasonably possible, a

          court must construe the statute so as to uphold its constitutionality and validity. Greco, 204

          Ill. 2d at 406; People v. Cosby, 305 Ill. App. 3d 211, 224 (1999) (we must affirm statute's

          constitutionality and validity whenever possible).        The party challenging the statute's

          constitutionality has the burden of demonstrating its invalidity. Greco, 204 Ill. 2d at 406.

          "Successfully making a facial challenge to a statute's constitutionality is extremely difficult,

          requiring a showing that the statute would be invalid under any imaginable set of

          circumstances.     The invalidity of the statute in one particular set of circumstances is

          insufficient to prove its facial invalidity." (Emphasis in original.) In re M.T., 221 Ill. 2d 517,

          536-37 (2006).

¶ 27            The primary rule of statutory construction is to ascertain and give effect to the intent of

          the legislature.   People v. McChriston, 2014 IL 115310, ¶ 15.           "The best evidence of


                                                        9
       1-14-3316


          legislative intent is the language used in the statute itself, which must be given its plain and

          ordinary meaning." People v. Woods, 193 Ill. 2d 483, 487 (2000). "In construing a statute, a

          court may also consider the reason and necessity for the law, the evils to be remedied, and

          the objects and purposes to be obtained." Woods, 193 Ill. 2d at 487. In examining the

          constitutionality of a statute, our review is de novo. Woods, 193 Ill. 2d at 487.

¶ 28            While the purpose of the Act is the rehabilitation of the minor (705 ILCS 405/5-101(c)

          (West 2012)), the purpose and policy section of the Juvenile Court Act has been amended to

          promote a juvenile justice system capable of dealing with the problem of juvenile

          delinquency, a system that will protect the community, impose accountability for violations

          of law, and equip juvenile offenders with competencies to live responsibly and productively

          (705 ILCS 405/5-101 (West 2012)). Enumerated purposes of the Act now include to "protect

          citizens from juvenile crime," and to "hold each juvenile offender directly accountable for his

          or her acts." 705 ILCS 405/5-101(1)(a), (b) (West 2012). Our supreme court has recognized

          that these amendments "represent a *** shift from the singular goal of rehabilitation to

          include the overriding concerns of protecting the public and of holding juveniles accountable

          for violations of the law." In re J.W., 204 Ill. 2d 50, 69 (2003).

¶ 29            In his arguments, respondent relies almost exclusively on a developing line of United

          States Supreme Court cases including Miller v. Alabama, 567 U.S. ___, 132 S. Ct. 2455

          (2012); Graham v. Florida, 560 U.S. 48 (2010); and Roper v. Simmons, 543 U.S. 551 (2005),

          arguing these cases hold that fundamental differences between juvenile and adult minds

          make children under 18 less culpable than adults for the same offenses and, thus, asserting

          that additional constitutional protections for these juvenile offenders are required.       The

          Supreme Court held in Roper that the eighth amendment forbids the death penalty for


                                                       10
       1-14-3316


          juvenile offenders, finding that they "cannot with reliability be classified among the worst

          offenders." Roper, 543 U.S. at 569. Next, it found in Graham that the eighth amendment

          prohibits a sentence of life without the possibility of parole for juveniles who did not commit

          homicide. See Graham, 560 U.S. at 74-75. These holdings culminated in Miller, wherein

          the Supreme Court held that the eighth amendment prohibits a sentencing scheme that

          mandates life in prison without the possibility of parole for juvenile offenders, including

          those convicted of homicide, stating that a judge must first have the opportunity to examine

          the circumstances involved. Miller, 567 U.S. at ___, 132 S. Ct. at 2469.

¶ 30            The Violent Juvenile Offender provision provides, in pertinent part:

                         "(a) Definition. A minor having been previously adjudicated a delinquent

                   minor for an offense which, had he or she been prosecuted as an adult, would have

                   been a Class 2 or greater felony involving the use or threat of physical force or

                   violence against an individual or a Class 2 or greater felony for which an element of

                   the offense is possession or use of a firearm, and who is thereafter adjudicated a

                   delinquent minor for a second time for any of those offenses shall be adjudicated a

                   Violent Juvenile Offender if:

                                (1) The second adjudication is for an offense occurring after

                          adjudication on the first; and

                                 (2) the second offense occurred on or after January 1, 1995.

                         (b) Notice to minor. The State shall serve upon the minor written notice of

                   intention to prosecute under the provisions of this Section within 5 judicial days of

                   the filing of a delinquency petition, adjudication upon which would mandate the

                   minor's disposition as a Violent Juvenile Offender.


                                                           11
       1-14-3316


                                                              ***

                         (d) Trial. Trial on the petition shall be by jury unless the minor demands, in

                   open court and with advice of counsel, a trial by the court without a jury.

                                                              ***

                         (f) Disposition.     If the court finds that the prerequisites established in

                   subsection (a) of this Section have been proven, it shall adjudicate the minor a

                   Violent Juvenile Offender and commit the minor to the Department of Juvenile

                   Justice until his or her 21st birthday, without possibility of aftercare release, furlough,

                   or non-emergency authorized absence. However, the minor shall be entitled to earn

                   one day of good conduct credit for each day served as reductions against the period of

                   his or her confinement.      The good conduct credits shall be earned or revoked

                   according to the procedures applicable to the allowance and revocation of good

                   conduct credit for adult prisoners serving determinate sentences for felonies.

                         For purposes of determining good conduct credit, commitment as a Violent

                   Juvenile Offender shall be considered a determinate commitment, and the difference

                   between the date of the commitment and the minor's 21st birthday shall be considered

                   the determinate period of his or her confinement." 705 ILCS 405/5-820 (West 2012).

¶ 31           Respondent claims a number of deformities with the VJO provision. We take each one

          in turn herein.

¶ 32                              a. Equal Protection and Substantive Due Process

¶ 33            Relying on Miller, respondent contends the VJO provision violates due process

          because there is no rational basis related to the legitimate government interest expressed in

          the Act. Specifically, respondent argues that the "one-size-fits-all arbitrary sentence" scheme

                                                         12
       1-14-3316


          of the VJO violates his substantive due process rights as provided in the United States and

          Illinois Constitutions (U.S. Const., amend. XIV; Ill. Const. 1970, art. I, § 2). He argues: (1)

          requiring juveniles who have been designated as violent juvenile offenders to be committed

          to the DOJJ until their 21st birthday does not serve the goal of protecting citizens from

          juvenile crime; (2) the mandatory period of commitment until age 21 is contrary to the

          purpose of holding each juvenile accountable for his own acts where, for example here,

          respondent "was with a group of friends, and influenced by his gang membership,

          demonstrating that his circumstances—not personality—were at the root of his criminality;"

          (3) the VJO provision is in "direct opposition" to the Act's stated purpose of providing an

          individualized assessment of each individual because, once a juvenile is designated a violent

          juvenile offender, a sentencing court has no discretion in fashioning the juvenile's sentence;

          and (4) the VJO provision does not further the goal of providing due process where children

          are constitutionally different from adults for purposes of sentencing.

¶ 34            Respondent "acknowledges that the United States Supreme Court has not yet

          considered whether juveniles have a due process right to individualized consideration at

          sentencing," but argues that, "under the reasoning of Miller, Graham, and Roper, it seems

          evident that such consideration is necessary to ensure that juveniles receive due process."

¶ 35            Respondent also argues the VJO provision violates the equal protection clauses of the

          United States and Illinois Constitutions (U.S. Const., amend. XIV, § 1; Ill. Const. 1970, art. I,

          § 2) because it treats younger juveniles more harshly than older juveniles, which is "contrary

          to the idea of lessened culpability for the youngest juvenile offenders as discussed in Miller."

          When the courts treat both younger and older juvenile offenders as violent juvenile offenders,

          the process unconstitutionally results in younger juveniles designated as violent offenders


                                                       13
       1-14-3316


          always having longer incarceration times than older juveniles designated as violent offenders.

          Respondent posits this unequal treatment serves no legitimate government purpose and,

          therefore, violates equal protection guarantees.

¶ 36            The due process clause of the United States Constitution provides that no "State [shall]

          deprive any person of life, liberty, or property, without due process of law." U.S. Const.,

          amend. XIV, § 1. Similarly, the due process clause of the Illinois Constitution provides that

          "[n]o person shall be deprived of life, liberty or property without due process of law." Ill.

          Const. 1970, art. I, § 2. " 'Under substantive due process ***, a statute is unconstitutional if

          it impermissibly restricts a person's life, liberty or property interest.' " People v. Johnson,

          225 Ill. 2d 573, 584 (2007) (quoting People v. R.G., 131 Ill. 2d 328, 342 (1989)).

¶ 37            The equal protection analysis is the same under either the Illinois or United States

          Constitution. People v. Shephard, 152 Ill. 2d 489, 499 (1992); U.S. Const., amend. XIV, § 1;

          Ill. Const. 1970, art. I, § 2. The equal protection clause "guarantees that similarly situated

          individuals will be treated in a similar fashion, unless the government can demonstrate an

          appropriate reason to treat them differently." In re Jonathon C.B., 2011 IL 107750, ¶ 116.

          This guarantee allows the legislature to create distinctions between different groups of people

          as long as that distinction avoids "criteria wholly unrelated to the legislation's purpose." In re

          Jonathon C.B., 2011 Ill. 107750, ¶ 116. The parties here agree that respondent's equal

          protection claim is governed by the rational basis test. This test simply inquires whether the

          method or means employed by the statute to achieve the stated goal or purpose of the

          legislation are rationally related to that goal. In re Jonathon C.B., 2011 IL 107750, ¶ 116.

          The court will not make this rational basis inquiry, however, until the movant proves he is

          similarly situated to the comparison group. People v. Masterson, 2011 IL 110072, ¶ 25. If a


                                                       14
       1-14-3316


          movant cannot meet this preliminary threshold, the equal protection claim fails. People v.

          Whitfield, 228 Ill. 2d 502, 513 (2007).

¶ 38            This court has previously addressed and rejected both a due process and an equal

          protection challenge to the VJO provision of the Act. In In re M.G., 301 Ill. App. 3d 401

          (1998), the First District, Fifth Division of this court rejected a due process challenge to the

          VJO statute. In re M.G., 301 Ill. App. 3d at 407. We considered People ex rel. Carey v.

          Chrastka, 83 Ill. 2d 67 (1980), in which our supreme court rejected the challenging minors'

          arguments that the Habitual Juvenile Offender Act violated due process, and determined that

          the same reasoning should apply to the challenging minor's allegations regarding the VJO

          statute. In re M.G., 301 Ill. App. 3d at 407-08. We recognized that the legislature has the

          authority to establish minimum sentences for juveniles. In re M.G., 301 Ill. App. 3d at 407.

          We observed that it was " 'entirely reasonable and constitutionally permissible' " for the

          legislature to conclude that juveniles who have committed two serious violent offenses

          within a short period of time should be subject to mandatory confinement to the age of 21. In

          re M.G., 301 Ill. App. 3d at 407 (quoting Chrastka, 83 Ill. 2d at 80). We held:

                     "We find M.G.'s distinction between the two statutes [(the Violent Juvenile

                     Offender provision and the Habitual Juvenile Offender Act)] unpersuasive.

                     Chrastka establishes that neither of the constitutional provisions cited is violated

                     merely because the legislature mandates a disposition in certain situations. While

                     legislative action may limit the courts' discretion, it is not necessarily

                     unconstitutional.   The limitation of the courts' role can be remedied by the

                     legislature's treatment of the subject. Indeed, the issues of seriousness of the




                                                      15
       1-14-3316


                     offense and rehabilitation have apparently already been considered in the

                     disposition set by the legislature in the Violent Juvenile Offender Act.

                           *** [T]he legislature could legitimately conclude that an individual who

                     has committed two serious violent offenses has benefited little from the

                     rehabilitative measures of the juvenile court system and exhibits little prospect for

                     restoration to meaningful citizenship within that system.        The rehabilitative

                     purposes of the system are not forsaken but, after the commission of a second

                     serious offense, the interest of society's protection receives additional

                     consideration. We hold it constitutionally permissible for the legislature to

                     authorize the disposition specified in the Violent Juvenile Offender Act." In re

                     M.G., 301 Ill. App. 3d at 408.

¶ 39            We note here that, in his reply brief, respondent acknowledges In re M.G., but argues

          that we should not follow it because it relied upon "Chrastka's unsound logic" which should

          no longer be followed in light of Roper, Graham, and Miller. Respondent quotes at length a

          recent decision of the Third Division of this court, In re Shermaine S., 2015 IL App (1st)

          142421, which upheld the habitual juvenile offender provision of the Juvenile Court Act

          while at the same time expressing reservations about its constitutionality. In that decision,

          the court rejected a juvenile's reliance on Miller to challenge the continuing validity of

          Chrastka, finding Miller distinguishable because it involved defendants who committed

          crimes as juveniles but were charged and convicted in the adult court system.             In re

          Shermaine S., 2015 IL App (1st) 142421, ¶¶ 18-22. Additionally, the court expressly noted

          that, as an appellate court, it was "compelled" to follow the supreme court precedent

          established in Chrastka, 83 Ill. 2d at 81, which had previously upheld the constitutionality of


                                                      16
1-14-3316


   the habitual offender mandatory sentencing provision of the Act. In re Shermaine S., 2015

   IL App (1st) 142421, ¶ 1. It stated:

              "We note, however, that the mandatory sentencing provision of the Act, which

              removes all discretion of the trial court in sentencing certain repeat juvenile

              offenders, is ripe for reconsideration. Illinois has been a national leader in the

              field of juvenile justice since the Illinois legislature enacted 'An Act to regulate

              the treatment and control of dependent, neglected and delinquent children' (1899

              Ill. Laws 131)—or the Illinois Juvenile Court Act—on July 1, 1899. The first

              juvenile court in the country was located in Chicago across the street from Hull

              House, an effective and prominent social service agency founded by social

              reformer Jane Addams. It was Addams who rallied the movement for a separate

              juvenile justice system, which would remove children from being tried and

              imprisoned by the adult criminal system. And it was Addams who cautioned,

              'social advance depends as much on the process through which it is secured as

              upon the result itself.' Jane Addams, Peace and Bread in Time of War, 133

              (1922).

                    During the intervening decades, however, the pendulum has swung back

              and forth on the legal system's handling of juvenile offenders as adults. Recent

              research on the effect that the unique qualities and characteristics of youth may

              have on juveniles' judgment and actions warrants reconsideration of some

              provisions of the Act, particularly those that remove or reduce the trial judge's

              discretion in considering some of those qualities and characteristics in sentencing

              a juvenile. We must ask ourselves whether precluding a trial judge's discretion


                                               17
       1-14-3316


                     wrongly deprives juveniles of what Justice Kennedy's majority opinion in

                     Graham v. Florida, 560 U.S. at 79, 130 S. Ct. 2011, called 'the opportunity to

                     achieve maturity of judgment and self-recognition of human worth and potential.'

                            As our supreme court recently noted in People v. Patterson, 2014 IL

                     115102, [***], in discussing automatic transfers of juveniles to adult court,

                     '[w]hile modern research has recognized the effect that the unique qualities and

                     characteristics of youth may have on juveniles' judgment and actions [citation],

                     the automatic transfer provision does not. Indeed, the mandatory nature of that

                     statute denies this reality.' Patterson, 2014 IL 115102, ¶ 111 [***]. The court

                     'strongly urge[d] the General Assembly to review the automatic transfer provision

                     based on the current scientific and sociological evidence indicating a need for the

                     exercise of judicial discretion in determining the appropriate setting for the

                     proceeding in these juvenile cases.' Id. We suggest that similar reconsideration is

                     necessary in the context of the Act's habitual offender provision to ensure

                     preservation of the fundamental purpose of juvenile proceedings—the child's

                     rehabilitation, treatment, and welfare." In re Shermaine S., 2015 IL App (1st)

                     142421, ¶¶ 32-34.

¶ 40            Although we recognize that the Third Division of this court expressed discomfort with

          Chrastka, we also recognize, as it did, that it was bound by the supreme court opinion in

          Chrastka. We, too, are bound by that opinion, and we, too, decline respondent's invitation to

          disregard appellate decisions crafted in reliance on that opinion.

¶ 41            Respondent also urges us to decide that In re M.G., in which this court already

          determined the VJO provision was constitutional, is no longer valid due to the recent line of


                                                       18
1-14-3316


   Supreme Court cases including Roper, Graham, and Miller. We decline to do so, however,

   as our supreme court has recently instructed that those decisions are closely limited to the

   "most severe of all criminal penalties" such as life without parole. See People v. Patterson,

   2014 IL 115102, ¶ 110. In this case, 16-year-old respondent was sentenced to a mandatory

   term of confinement until the age of 21, with the possibility of day-for-day good conduct

   credit, a sentence which is a far cry from "the most severe of all penalties." In Patterson, our

   supreme court, in pertinent part, upheld the automatic transfer provision of the Act (705

   ILCS 405/5-130 (West 2008)) and defined the limitations of the Roper, Graham, and Miller

   line of cases. Patterson, 2014 IL 115102, ¶ 89. To that extent, we find the court's discussion

   of the matter worth inclusion here:

                    "Finally, defendant suggests that, at a minimum, the combination of the

              transfer statute and the applicable sentencing provisions is unconstitutional as

              applied to non-homicide offenders because they are 'categorically less deserving

              of the most serious forms of punishment than are murderers.' Graham, 560 U.S.

              at 69. Because defendant did not kill or intend to kill, he claims he has a 'twice

              diminished moral culpability' and does not deserve the most severe punishments.

              [Citation.] Defendant asserts that youthfulness must be considered whenever 'a

              harsh adult sentence' is given to a minor because juveniles' distinctive traits are

              not crime-specific, citing Miller, 567 U.S. at ___, 132 S. Ct. at 2465. In support,

              defendant also cites [People v.] Leon Miller, [202 Ill. 2d 328, 340-41 (2002)],

              where this court found the imposition of a mandatory life sentence on a 15-year-

              old convicted of two counts of first degree murder based on accountability after




                                               19
1-14-3316


            an automatic transfer to adult court unconstitutional because the youth's age and

            personal culpability were never considered.

                  Here, defendant was sentenced to 12 years in prison on each of three counts

            of aggravated criminal sexual assault. The sentences were required to be served

            consecutively (730 ILCS 5/5-8-4(a)(ii) (West 2008)), and defendant was

            statutorily mandated to serve at least 85% of his total prison term (730 ILCS 5/3-

            6-3(a)(2)(ii) (West 2008)), or 30 years, 7 months. Although lengthy, that term is

            not comparable to either the death penalty or ' "the second most severe penalty

            permitted by law,' " life in prison without parole (Graham, 560 U.S. at 69

            (quoting Harmelin v. Michigan, 501 U.S. 957, 1001 (1991) (Kennedy, J.,

            concurring in part and concurring in the judgment, joined by O'Connor and

            Souter, JJ.))). The Supreme Court has clearly distinguished the latter sentences

            from any others, noting both the uniqueness of the ' "severity and irrevocability' "

            of the death penalty and the 'characteristics with death sentences that are shared

            by no other sentences' besides life without parole. Graham, 560 U.S. at 69

            (quoting Gregg v. Georgia, 428 U.S. 153, 187 (1976) (joint opinion of Stewart,

            Powell, and Stevens, JJ.)). The Supreme Court has also instructed that '[a] State

            is not required to guarantee eventual freedom to a juvenile offender convicted of a

            nonhomicide crime,' but only to give those offenders 'some meaningful

            opportunity to obtain release based on demonstrated maturity and rehabilitation,'

            expressly leaving the specific mechanism and means to each state. Graham, 560

            U.S. at 75. Most recently, in Miller the Court reiterated the Graham rationale and

            emphasized the 'unprecedented' nature of the Court's expansion of its categorical


                                             20
1-14-3316


            ban to the imposition of life without parole for juveniles in nonhomicide cases.

            Miller, 567 U.S. at ___, 132 S. Ct. at 2466.

                  Similarly, this court has unanimously declined to expand the narrow rule in

            Graham to all juveniles sentenced to life without parole for homicides. Davis,

            2014 IL 115595, ¶¶ 48-49.        Although defendant relies on Leon Miller, that

            decision is inapposite. There, we described the minor defendant as 'the least

            culpable offender imaginable,' having been convicted of two murders solely on

            the theory of accountability. Nonetheless, he was subject to mandatory life in

            prison with no possibility of parole. Leon Miller, 202 Ill. 2d at 341. In our ruling,

            we focused on the particular harshness and obvious lack of proportionality of that

            sentence in light of the unique facts of the case. We expressly:

                   'agree[d] with defendant that a mandatory sentence of natural life in prison

                   with no possibility of parole grossly distorts the factual realities of the case

                   and does not accurately represent defendant's personal culpability such

                   that it shocks the moral sense of the community. This moral sense is

                   particularly true, as in the case before us, where a 15-year-old with one

                   minute to contemplate his decision to participate in the incident and stood

                   as a lookout during the shooting, but never handled a gun, is subject to life

                   imprisonment with no possibility of parole—the same sentence applicable

                   to the actual shooter.' Leon Miller, 202 Ill. 2d at 341.

            Nonetheless, we refrained from barring the imposition of a life sentence on any

            juvenile offender, denying any implication 'that a sentence of life imprisonment

            for a juvenile offender convicted under a theory of accountability is never


                                             21
       1-14-3316


                     appropriate.' As we explained, '[i]t is certainly possible to contemplate a situation

                     where a juvenile offender actively participated in the planning of a crime resulting

                     in the death of two or more individuals, such that a sentence of natural life

                     imprisonment without the possibility of parole is appropriate.' Leon Miller, 202

                     Ill. 2d at 341.

                            Accordingly, both this court and the United States Supreme Court have

                     closely limited the application of the rationale expressed in Roper, Graham, and

                     Miller, invoking it only in the context of the most severe of all criminal penalties.

                     A prison term totalling 36 years for a juvenile who personally committed three

                     counts of aggravated criminal sexual assault does not fall into that category. We

                     decline defendant's invitation to extend the Supreme Court's eighth amendment

                     rationale to the facts of this case." (Emphasis omitted.) Patterson, 2014 IL

                     115102, ¶¶ 107-10.

¶ 42            We note, as discussed by this court in In re Shermaine S. (In re Shermaine S., 2015 IL

          App (1st) 142421, ¶¶ 32-34), that our supreme court expressed reservations regarding the

          sentencing court's lack of discretion in crafting a sentence. It stated:

                            "We do, however, share the concern expressed in both the Supreme Court's

                     recent case law and the dissent in this case over the absence of any judicial

                     discretion in Illinois's automatic transfer provision. While modern research has

                     recognized the effect that the unique qualities and characteristics of youth may

                     have on juveniles' judgment and actions (see, e.g., Roper, 543 U.S. at 569-70;

                     infra ¶ 156), the automatic transfer provision does not. Indeed, the mandatory

                     nature of that statute denies this reality.      Accordingly, we strongly urge the


                                                        22
       1-14-3316


                     General Assembly to review the automatic transfer provision based on the current

                     scientific and sociological evidence indicating a need for the exercise of judicial

                     discretion in determining the appropriate setting for the proceedings in these

                     juvenile cases." Patterson, 2014 IL 115102, ¶ 111.

¶ 43            Similar reconsideration may be necessary in the context of the Act's violent juvenile

          offender provision. As the law stands today, however, we find In re M.G. is well-reasoned

          and unchanged by the Roper, Graham, Miller line of cases, and we see no reason to depart

          from its holding that the violent juvenile offender provision of the Act does is not violative of

          due process. In re M.G., 301 Ill. App. 3d at 407.

¶ 44            The equal protection claim reasoning from In re M.G. also applies to the case at bar.

          Specifically, this court found in In re M.G.:

                            "The Violent Juvenile Offender Act has the apparent purpose of protecting

                     society from an individual who has committed two serious violent offenses

                     involving the use or threat of physical force or violence against an individual or

                     possession or use of a firearm. To further its purpose, the legislature determined

                     that a violent juvenile offender should be confined until the age of 21. Like the

                     Habitual Juvenile Offender Act, the interest in protecting society is compelling in

                     cases involving such serious juvenile offenders, and we do not find the disparity

                     resulting from the mandatory disposition to invalidate the statute." In re M.G.,

                     301 Ill. App. 3d at 409.

¶ 45            In Chrastka, our supreme court expressly rejected the claim that a juvenile is denied

          equal protection solely because his confinement until age 21 might be longer than another

          individual's term for the same offense. Specifically, the court stated:


                                                          23
       1-14-3316


                       "[W]e believe that the interest in protecting society from the habitual juvenile

                       offender has, through experience, proved to be as compelling as the interest in

                       protecting society from the habitual adult offender, and the broad authority of

                       State legislatures to deal with adult recidivists is well recognized (Rummel v.

                       Estelle (1980), 445 U.S. 263 ***; Spencer v. Texas (1967), 385 U.S. 554, 559-560

                       ***). We do not believe that the fortuitous disparity of the terms of confinement

                       of habitual juvenile offenders which results from the variance in age of such

                       individuals serves to invalidate the means chosen to effectuate the purpose of the

                       Act. 'The Constitution permits qualitative differences in meting out punishment

                       and there is no requirement that two persons convicted of the same offense

                       receive identical sentences.' (Williams v. Illinois (1970), 399 U.S. 235, 241 ***).

                       And as stated in Skinner v. Oklahoma ex rel. Williamson (1942), 316 U.S. 535,

                       539-40 ***, 'Under our constitutional system the States in determining the reach

                       and scope of particular legislation need not provide "abstract symmetry." Patsone

                       v. Pennsylvania (1914), 232 U.S. 138, 144. They may mark and set apart the

                       classes and types of problems according to the needs and as dictated or suggested

                       by experience.' " Chrastka, 83 Ill. 2d at 81.

¶ 46               Similar to Chrastka, respondent here claims the VJO provision fails to account for an

          age difference among juveniles who are designated as violent juvenile offenders and argues

          that this "disparate treatment" is irrational and unconstitutional.       Our supreme court,

          however, rejected a nearly identical claim in Chrastka, and we do here, as well. Where there

          need not be "absolute symmetry" in sentencing, and where the legislature has clearly

          expressed that the purpose of the Act is the rehabilitation of the minor as well as


                                                        24
       1-14-3316


          "promot[ing] a juvenile justice system capable of dealing with the problem of juvenile

          delinquency, a system that will protect the community, impose accountability for violations

          of law and equip juvenile offenders with competencies to live responsibly and productively"

          (705 ILCS 405/5-101 (West 2012)); and where our supreme court has instructed that the

          Roper, Graham, and Miller decisions are closely limited to the "most severe of all criminal

          penalties" such as life without parole (Patterson, 2014 IL 115102, ¶ 110), we find no

          violation of equal protection here.

¶ 47                      b. Eighth Amendment and the Proportionate Penalties Clause

¶ 48            Next, relying on the Supreme Court's decision in Miller, respondent contends that the

          VJO provision is an unconstitutional violation of the eighth amendment of the United States

          Constitution (U.S. Const., amend. VIII) as well as the proportionate penalties clause of the

          Illinois Constitution (Ill. Const. 1970, art. I, § 11). The VJO provision requires that, once the

          predicate offense for VJO status has been proven, the court shall commit the minor to the

          DOJJ until his 21st birthday. 705 ILCS 405/5-820 (West 2012). Respondent argues that the

          mandatory nature of this sentencing structure violates both the eighth amendment and the

          proportionate penalties clause because it removes the trial court's discretion in sentencing

          minors who are subject to this provision.

¶ 49            Statutes carry a strong presumption of constitutionality. See Greco, 204 Ill. 2d at 406;

          accord Malchow, 193 Ill. 2d at 418. If reasonably possible, a court must construe the statute

          so as to uphold its constitutionality and validity. Greco, 204 Ill. 2d at 406; Cosby, 305 Ill.

          App. 3d at 224. The party challenging the statute's constitutionality has the burden of

          demonstrating its invalidity. Greco, 204 Ill. 2d at 406. "Successfully making a facial

          challenge to a statute's constitutionality is extremely difficult, requiring a showing that the


                                                       25
       1-14-3316


          statute would be invalid under any imaginable set of circumstances. The invalidity of the

          statute in one particular set of circumstances is insufficient to prove its facial invalidity."

          (Emphasis in original.) In re M.T., 221 Ill. 2d at 536-37.

¶ 50            The eighth amendment prohibits, in pertinent part, the imposition of "cruel and unusual

          punishments."    U.S. Const., amend VIII.        The eighth amendment applies to the States

          through the fourteenth amendment. Roper, 543 U.S. at 560. "The eighth amendment, as

          applied to the states through the fourteenth amendment, prohibits the imposition of cruel and

          unusual punishment for criminal offenses that are disproportionate in relation to the offense

          committed or the status of the offender." In re Shermaine S., 2015 IL App (1st) 142421, ¶

          17.   Article I, section 11 of the Illinois Constitution, commonly known as the proportionate

          penalties clause, provides in pertinent part that "[a]ll penalties shall be determined ***

          according to the seriousness of the offense." Ill. Const. 1970, art. I, § 11. "[T]he Illinois

          proportionate penalties clause is co-extensive with the eighth amendment's cruel and unusual

          punishment clause ***." Patterson, 2014 IL 115102, ¶ 106 (citing In re Rodney H., 223 Ill.

          2d 510, 518 (2006)).

¶ 51            The First Division of this court recently addressed and rejected this precise argument

          in In re Isaiah D., 2015 IL App (1st) 143507. In that case, the juvenile Isaiah had been

          adjudicated an habitual juvenile offender (HJO) and a violent juvenile offender, and

          sentenced pursuant to the mandatory sentencing provisions of the Act to the DOJJ until the

          age of 21. In re Isaiah D., 2015 IL App. (1st) 143507, ¶ 1; 705 ILCS 405/5-815, 5-820

          (West 2012). On appeal, the juvenile raised a number of issues, the pertinent one to this

          cause being a constitutional challenge to the VJO statute. In re Isaiah D., 2015 IL App. (1st)

          143507, ¶ 2. The juvenile argued that the mandatory sentencing provisions of both the VJO


                                                      26
       1-14-3316


          provision and the HJO provision under which he was sentenced were an unconstitutional

          violation of the eighth amendment of the United States Constitution, as well as the

          proportionate penalties clause of the Illinois Constitution because the mandatory nature of the

          provisions "removes the trial court's discretion in sentencing minors." In re Isaiah D., 2015

          IL App (1st) 143507, ¶ 51.

¶ 52            The court initially noted that our supreme court has held that neither the eighth

          amendment nor the proportionate penalties clause apply to juvenile proceedings initiated by a

          petition for adjudication of wardship because "a juvenile adjudication of wardship was not

          criminal in nature and did not impose 'punishment' within the meaning of the eighth

          amendment and proportionate penalties clause." In re Isaiah D., 2015 IL App (1st) 143507,

          ¶ 52 (citing In re Rodney H., 223 Ill. 2d at 520-21). The court noted, nonetheless, that even if

          those constitutional provisions did apply, established Illinois precedent still rejects the

          juvenile's arguments. In re Isaiah D., 2015 IL App (1st) 143507, ¶ 52.

¶ 53            Just as respondent in the case at bar relies on Miller for his eighth amendment

          challenge, so, too, did the juvenile respondent in In re Isaiah D. The court rejected this

          reliance, stating:

                      "[R]espondent relies on Miller v. Alabama, [citation], which held that imposition

                      of mandatory life sentences without the possibility of parole for persons under the

                      age of 18 at the time of their crimes violates the eighth amendment. [Citation.]

                      However, we have specifically rejected a juvenile's reliance on Miller to challenge

                      the continuing validity of Chrastka.     See Shermaine S., 2015 IL App (1st)

                      142421, ¶¶ 21-25; A.P., 2014 IL App (1st) 140327, ¶¶ 18-22. In particular, we

                      have found that Miller is distinguishable because it involved defendants who


                                                      27
       1-14-3316


                     committed crimes as juveniles but were charged and convicted in the adult court

                     systems. [Citation.] Moreover, we have noted that Miller 'did not hold that the

                     eighth amendment prohibited any mandatory penalties for juveniles, only

                     mandatory natural life sentences without the possibility of parole.' (Emphasis in

                     original.)   [Citation.]   Thus, we have concluded that Miller is 'factually

                     distinguishable and does not support deviating from precedent established in

                     Chrastka, which, as an appellate court, we are required to follow.' Shermaine S.,

                     2015 IL App (1st) 142421, ¶ 25. In this case, respondent urges that both A.P. and

                     Shermaine S. were wrongly decided, but raises no new argument to warrant

                     departing from those decisions. Thus, we again conclude that Chrastka remains

                     binding and reject respondent's eighth amendment challenge to the HJO and VJO

                     mandatory sentencing provisions." In re Isaiah D., 2015 IL App (1st) 143507, ¶

                     56.

¶ 54            The court then considered and rejected the juvenile's proportionate penalties argument,

          finding that, where our supreme court has stated that the " 'Illinois proportionate penalties

          clause is co-extensive with the eighth amendment's cruel and unusual punishment clause,' "

          (In re Isaiah D., 2015 IL App (1st) 143507, ¶ 58 (quoting Patterson, 2014 IL 115102, ¶ 106,

          citing In re Rodney H., 223 Ill. 2d at 518)), "our rejection of respondent's eighth amendment

          challenge pursuant to our supreme court's decision in Chrastka would likewise compel

          rejection of his proportionate penalties argument." In re Isaiah D., 2015 IL App (1st)

          143507, ¶ 58. The court stated:

                     "In fact, we recently applied that logic in rejecting a proportionate penalties

                     challenge: '[B]ecause in Chrastka, our supreme court held that sentencing a


                                                     28
       1-14-3316


                    habitual juvenile offender to a mandatory minimum sentence *** did not violate

                    the eighth amendment and the proportionate penalties clause provides coextensive

                    protections, we also reject [the juvenile's proportionate penalties] challenge to the

                    habitual juvenile offender provision under our state constitution." In re Isaiah D.,

                    2015 IL App (1st) 143507, ¶ 58 (quoting In re Shermaine S., 2015 IL App (1st)

                    142421, ¶ 31).

¶ 55            Finally, the Isaiah D. court very specifically extended the reasoning in A.P. and In re

          Shermaine S., by which those courts rejected constitutional challenges to the HJO mandatory

          sentencing provision, to the VJO mandatory sentencing provision:

                           "We recognize that, although our decisions in A.P. and Shermaine S. [on

                    which the court relied] concerned challenges only to the HJO mandatory

                    sentencing provision in section 5-815 of the Juvenile Court Act, respondent here

                    challenges both that provision and its VJO counterpart in section 5-820 of the

                    Juvenile Court Act. [Citation.] However, respondent's arguments are identical

                    with respect to both provisions, and he has offered no persuasive reason to

                    distinguish his case from the identical eighth amendment and proportionate

                    penalties challenges that our court has rejected with respect to the HJO statutory

                    provision mandating commitment until the age of 21. We see no reason why our

                    decisions rejecting the same challenges to the HJO provision do not apply with

                    equal force to the equivalent VJO provision. Accordingly, we conclude that

                    respondent's [eighth amendment and proportionate penalties] arguments with

                    respect to both the HJO and VJO mandatory sentencing provisions of the Juvenile

                    Court Act must fail." In re Isaiah D., 2015 IL App (1st) 143507, ¶ 61.


                                                     29
       1-14-3316


¶ 56            We find In re Isaiah D. well-reasoned and on-point. We agree that the reasoning from

          the precedent regarding challenges to the HJO mandatory sentencing provision is relevant to

          our analysis of the present constitutional challenges to the VJO mandatory sentencing

          provision. We see no reason to deviate from the determination in the In re Isaiah D. opinion

          that the VJO mandatory sentencing provision of the Act does not violate the eighth

          amendment of the United States Constitution nor the proportionate penalties clause of the

          Illinois Constitution. We therefore reject respondent's arguments in this regard.

¶ 57                                  B. As-Applied Constitutional Challenge

¶ 58            Respondent also makes an as-applied challenge to the VJO provision, arguing that his

          due process rights, guarantees of equal protection, and eighth amendment protections were

          violated where the trial court was unable, because it was constrained by the mandatory VJO

          sentencing requirements, to consider respondent's personal circumstances, including his good

          behavior while incarcerated, his youth, and his rehabilitative potential when crafting

          respondent's sentence. He specifically points out that the crime for which he was adjudicated

          delinquent in the case at bar was a "non-violent incident;" and that, while in juvenile

          incarceration pending trial, respondent "dedicated himself to reforming and conforming his

          conduct to society's expectations for a young man," has earned the respect of his peers and

          the jail staff, has "shirked gang activity," has earned good grades, and has participated in fine

          arts and behavioral management.       He believes the trial court should have been free to

          consider these points when crafting his sentence, rather than being bound by the mandatory

          sentencing requirements of the VJO provision.

¶ 59            In an as-applied challenge to a statute, "the party challenging the statute contends that

          the application of the statute in the particular context in which the challenger has acted, or in


                                                       30
       1-14-3316


          which he proposes to act, would be unconstitutional." People v. Brady, 369 Ill. App. 3d 836,

          847 (2007). "An 'as-applied' challenge requires a party to show that the statute violates the

          constitution as the statute applies to him." Brady, 369 Ill. App. 3d at 847. Our supreme court

          has stated:

                        " 'A court is not capable of making an "as applied" determination of

                        unconstitutionality when there has been no evidentiary hearing and no findings of

                        fact. [Citation.] Without an evidentiary record, any finding that a statute is

                        unconstitutional "as applied" is premature.     [Citations.]   Nor would it be

                        appropriate for this court, sua sponte, to consider whether [a] statute has been

                        constitutionally applied since we, as a reviewing court, are not arbiters of the

                        facts." People v. Mosley, 2015 IL 115872, ¶ 47 (quoting In re Parentage of John

                        M., 212 Ill. 2d 253, 268 (2004)).

¶ 60            The State argues, and we agree, that it would be improper for this court to render a

          decision on the merits of this argument in light of the lack of evidence before us, where this

          issue was not raised in the trial court and there was no evidentiary hearing or findings of fact

          as to this issue.     Respondent's constitutional claims, therefore, are limited to the VJO

          provision's facial validity. See, e.g., Mosley, 2015 IL 115872, ¶ 48 (citing Lebron v. Gottlieb

          Memorial Hospital, 237 Ill. 2d 217, 228 (2010) ("When there has been no evidentiary

          hearing and no findings of fact, the constitutional challenge must be facial" (citing In re

          Parentage of John M., 212 Ill. 2d at 268))).

¶ 61                    iii. The Confrontation Clause and the One-Act, One-Crime Doctrine

¶ 62            Next, respondent contends that the admission by the State at trial of a certification

          alleging respondent's lack of a valid FOID card in support of his adjudication of AUUW (No


                                                            31
       1-14-3316


          FOID) was testimonial and violated his right to confrontation under Crawford v. Washington,

          541 U.S. 36, 43 (2004).        Specifically, respondent argues that the admission of the

          certification, which was prepared by a non-testifying witness, violated his constitutional right

          of confrontation under the United States Constitution (U.S. Const., amends. VI, XIV) and the

          Illinois Constitution (Ill. Const. 1970, art. I, § 8). Respondent contends that, because of this

          alleged confrontation violation, we should reverse his adjudication for AUUW (No FOID).

¶ 63            In the alternative, respondent contends he was adjudicated delinquent for two counts of

          AUUW (one based on lack of a valid FOID card and the other based on his age) for but one

          single act. Because these adjudications are based upon the same physical act of possessing a

          single firearm, the less serious of the two adjudications should be vacated.

¶ 64            Our supreme court has instructed that "cases should be decided on nonconstitutional

          grounds whenever possible, reaching constitutional issues only as a last resort." In re E.H.,

          224 Ill. 2d 172, 178 (2006) (on review of case regarding a juvenile delinquency, our supreme

          court admonished reviewing court below not to reach confrontation issue where it was

          possible to decide the issue on nonconstitutional grounds). In the case at bar, the State urges

          us to determine that respondent was improperly adjudicated delinquent on two counts for a

          single act. It suggests that we avoid the constitutional issue, vacating the AUUW count

          based on lack of a valid FOID card, and thereby deciding the issue on nonconstitutional

          grounds. We first consider the one-act, one-crime issue.

¶ 65            Under the one-act, one-crime doctrine, multiple convictions may not be based on the

          same physical act. See People v. Miller, 238 Ill. 2d 161, 165 (2010); People v. King, 66 Ill.

          2d 551, 566 (1977). If the same physical act forms the basis for two separate offenses

          charged, a defendant could be prosecuted for each offense, but only one conviction and


                                                      32
       1-14-3316


          sentence may be imposed. People v. Segara, 126 Ill. 2d 70, 77 (1988). "[I]f a defendant is

          convicted of two offenses based upon the same single physical act, the conviction for the less

          serious offense must be vacated." People v. Johnson, 237 Ill. 2d 81, 97 (2010). The one-act,

          one[-]crime doctrine applies to juvenile adjudications of delinquency. In re Samantha V.,

          234 Ill. 2d 359, 375 (2009). "Whether a conviction should be vacated under the one-act, one-

          crime doctrine is a question of law which the court reviews de novo." In re Angel P., 2014

          IL App (1st) 121749, ¶ 63.

¶ 66            Here, although respondent concedes that he waived this issue by failing to object at

          trial, we review one-act, one-crime issues pursuant to principles of plain error. People v.

          Harvey, 211 Ill. 2d 368, 389 (2004) (a violation of the one-act, one-crime doctrine affects the

          integrity of the judicial process, thereby satisfying the second prong of the plain error

          analysis and justifying our consideration).

¶ 67            Turning then to the merits of this issue, we initially note that the State agrees with

          respondent that one adjudication of delinquency should be vacated. Here, the same physical

          act, that is, respondent's possession of the handgun on January 31, 2013, formed the basis for

          the two adjudications of delinquency. We therefore agree with the parties that, under the

          one-act, one-crime rule, respondent should be adjudicated delinquent under a single count of

          the AUUW statute. Specifically, respondent "should be sentenced on the most serious

          offense and the less serious offense should be vacated." Samantha V., 234 Ill. 2d at 379.

¶ 68            "In determining which offense is the most serious, we are instructed to consider the

          plain language of the statutes, as common sense dictates that the legislature would prescribe

          greater punishment for the offense it deems the more serious." Samantha V., 234 Ill. 2d at




                                                        33
       1-14-3316


          379. Here, however, both adjudications are Class 2 felonies, and both adjudications carry the

          same sentence because respondent was adjudicated a violent juvenile offender.

¶ 69            "If the punishments are identical, we are instructed to consider which offense has the

          more culpable mental state." Samantha V., 234 Ill. 2d at 379. In this case, however, the

          mental states are also identical. We find the Second Division of this court's resolution of a

          similar issue in People v. Akins, 2014 IL App (1st) 093418-B, instructive here. In that case,

          the defendant was convicted of four counts of AUUW, including counts for possession of a

          firearm on one's person or in one's vehicle without a valid FOID card, as well as possession

          of a firearm on the public way. Akins, 2014 IL App (1st) 093418-B, ¶ 3. The defendant

          appealed, arguing in pertinent part that his convictions for AUUW based on possession of a

          firearm on his person or in his vehicle without a valid FOID card and for possession of the

          same firearm on the public way violated the one-act, one-crime prohibition of multiple

          convictions for the same physical act. Akins, 2014 IL App (1st) 093418-B, ¶ 17. The court

          determined that there was, indeed, a one-act, one-crime problem, as the two counts were for

          the same physical act. Akins, 2014 IL App (1st) 093418-B, ¶ 19.        Like the case at bar,

          however, the punishments and the mental states for both counts were identical. Akins, 2014

          IL App (1st) 093418-B, ¶ 19. The court resolved the issue, noting:

                     "Both offenses are Class 4 felonies and have the same mental state. However,

                     count II, possession of a firearm on one's person or in a vehicle without a valid

                     FOID card, is arguably the less serious offense. Possessing a firearm on the

                     public way without a valid FOID card is potentially more dangerous because of

                     the likelihood of interaction with other people and the possibility of injuring

                     others.   Accordingly, we vacate defendant's conviction under count II.


                                                     34
       1-14-3316


                        Defendant's conviction under count IV remains."      Akins, 2014 IL App (1st)

                        093418-B, ¶ 19.

¶ 70            In similar fashion, and in recognition that our aim as an appellate court is to decide

          issues in a nonconstitutional manner whenever possible (In re E.H., 224 Ill. 2d at 178-81),

          we find in this particular circumstance that count II, possessing a firearm while under age 21

          is arguably the more serious offense, as respondent had only just turned 16 years of age at the

          time of the crime, is admittedly affiliated with a gang, and has a history of prior run-ins with

          the law and adjudications of delinquency based on gun crimes. Accordingly, we vacate

          respondent's adjudication under count I (No FOID). Respondent's adjudication under count

          II remains.

¶ 71                                         III. CONCLUSION

¶ 72            For all of the foregoing reasons, we vacate count I pursuant to the one-act, one-crime

          rule. We affirm the decision of the circuit court of Cook County in all other respects.

¶ 73            Affirmed in part; vacated in part.




                                                      35
