                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Moore, 2011 IL App (3d) 090993




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    DEONTE MOORE, Defendant-Appellant.



District & No.             Third District
                           Docket No. 3-09-0993


Filed                      September 2, 2011
Modified upon denial
of rehearing               October 6, 2011
Held                       The 13-year-old defendant’s conviction as an adult for armed robbery was
(Note: This syllabus       reversed and the trial court’s order transferring him to criminal court was
constitutes no part of     vacated where the trial court entered the transfer order without
the opinion of the court   considering the availability and advantages of treatment services in the
but has been prepared      juvenile system, whether defendant possessed a deadly weapon, and the
by the Reporter of         potential term of defendant’s sentence as an adult, and the cause was
Decisions for the          remanded to juvenile court for further proceedings.
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Peoria County, No. 09-CF-497; the
Review                     Hon. Chris L. Frederickson and the Hon. James E. Shadid, Judges,
                           presiding.



Judgment                   Reversed and vacated; cause remanded with directions.
Counsel on                 Thomas A. Karalis (argued), of State Appellate Defender’s Office, of
Appeal                     Ottawa, for appellant.

                           Kevin W. Lyons, State’s Attorney, of Peoria (Terry A. Mertel and Mark
                           A. Austill (argued), both of State’s Attorneys Appellate Prosecutor’s
                           Office, of counsel), for the People.


Panel                      JUSTICE LYTTON delivered the judgment of the court, with opinion.
                           Presiding Justice Carter and Justice Wright concurred in the judgment
                           and opinion.




                                             OPINION

¶1          Defendant, 13-year-old Deonte Moore, was convicted of armed robbery under the
        Criminal Code of 1961 (Criminal Code) (720 ILCS 5/18-2(a)(2) (West 2008)) and sentenced
        to 21 years in prison. On appeal, he claims that (1) the trial court erred in transferring him
        to criminal court to be tried as an adult, and (2) the application of the mandatory 15-year gun
        enhancement to his 6-year sentence violates the federal and state constitutions. We vacate
        the decision to transfer defendant and remand to juvenile court for further proceedings.
¶2          On April 14, 2009, defendant was charged by juvenile petition with armed robbery of a
        bank in Peoria. In the petition, the State alleged that defendant:
                “committed the offense of armed robbery in violation of 720 ILCS 5/18-2(A), in that
                said minor, while armed with a dangerous weapon, a firearm, knowingly took
                property, being United States currency.”
¶3          Three days later, the State filed a motion to transfer, seeking to remove the cause from
        juvenile court and try defendant as an adult. At the hearing, the State introduced a copy of
        defendant’s birth certificate, crime scene photographs, the handgun, and the bank security
        video. The trial court also took judicial notice of juvenile case No. 07-DJ-495 in which
        defendant choked his grandmother and was adjudicated a delinquent for domestic battery.
        The file indicated that defendant had been placed on probation for that offense and that he
        failed to keep his appointments with his probation officer.
¶4          The State presented testimony from the officers involved in the armed robbery incident.
        Their testimony revealed that defendant approached the bank alone and on foot. He pulled
        his sweatshirt hood over his head and placed a red bandana over his face. He then entered
        the bank while carrying a .22-caliber handgun, pointed the gun at a nearby teller and
        demanded money. The teller froze and was unable to respond to his orders. He asked her if
        she thought it was a joke and then approached another teller. With the gun raised to the


                                                 -2-
       teller’s face, defendant told her to put all the money in her drawer in a pillow case that he had
       placed on the counter. She put the money, along with several premarked bills and an
       exploding dye pack, into the bag. Defendant then thanked the teller and left the bank.
¶5          Officers testified that they pursued defendant, chasing him down several streets, until
       they found him hiding behind a couch in a residential garage. Defendant had red dye all over
       his sweatshirt. During his apprehension, defendant told the officers that the gun he used was
       a BB gun. He later told them that the handgun was real but that he did not think it was
       loaded.
¶6          Following his arrest, defendant admitted that he robbed the bank using a small black
       handgun. Detective Jim Turner testified that during his interview, defendant stated that he
       checked the magazine of the handgun and thought it was empty, but that there may have been
       a bullet in the chamber. Defendant told Turner that when the dye pack exploded, he thought
       he had shot himself. Defendant said that he robbed the bank because he had run away from
       home and needed money for food and clothes and a haircut. He then told the detective that
       he threw the gun in a window well as he was fleeing the scene.
¶7          Officer Douglas Hopwood testified that he and other officers recovered the handgun and
       the pillow case from the window well. The magazine of the gun was empty, and it was not
       loaded.
¶8          Defendant’s mother, Juanita Moore, testified that she had difficulty enforcing rules with
       her son. If he disagreed with her, he would just run away. Defendant ran away from home
       a few days before the robbery. She believed that defendant was living with someone named
       Tyrone and that it was Tyrone’s idea to rob the bank. She testified that defendant has been
       diagnosed with attention deficit hyperactivity disorder but did not take medication for his
       condition. She further testified that defendant had drug and alcohol issues and had started,
       but failed to complete, anger management classes. According to her testimony, defendant had
       never had a full psychological evaluation, nor had he attended special education classes or
       professional counseling sessions.
¶9          In defense counsel’s closing argument, he stated:
                “If this were to be transferred, my client is looking at a minimum of several years in
                the Department of Corrections, especially if the State would seek to enhance this. If
                this stays in juvenile court, there is [sic], as I previously stated, your Honor, several
                services and facilities for which my client could be punished and rehabilitated.”
¶ 10        The juvenile judge considered the factors under the discretionary transfer provision of
       the Juvenile Court Act of 1987 (Act) (705 ILCS 405/5-805(3)(b) (West 2008)) and orally
       pronounced his findings. Regarding the advantages and treatment options within each
       system, the court stated, “I have considered the advantages and treatment within the juvenile
       justice system. There are facilities available where minors can be treated.” The court then
       noted defendant’s failure to attend probation meetings. As a result, the court determined that
       defendant would be unwilling to cooperate on juvenile probation. The court found probable
       cause to believe that the allegations in the petition were true and that it was in the best
       interests of the public to proceed under the Criminal Code. The court then granted the State’s
       motion to transfer.

                                                  -3-
¶ 11       The State filed a superceding bill of indictment charging defendant as an adult. The
       indictment provided:
                “[Defendant], a person under 15 years of age while armed with a dangerous weapon,
                a firearm, did take property being United States currency from the person or presence
                of Kathleen Sayers by threatening the imminent use of force.”
¶ 12       Prior to trial, defense counsel moved to vacate the order transferring the cause to criminal
       court. At the hearing, the State noted that, if convicted, defendant could be sentenced to a
       range of 6 to 30 years in prison for a Class X felony. The trial court concluded that the
       transfer order was not an abuse of discretion and denied defendant’s motion.
¶ 13       Defendant waived his right to a jury trial, and the cause proceeded to a bench trial.
       According to the stipulated evidence recited by the State, a bank teller at South Side Trust
       & Savings Bank would testify that she was working on April 13, 2009. On that day, a young
       male wearing a black, hooded sweatshirt and black jeans with a red bandana covering his
       face entered the bank with a handgun and demanded money from the teller working next to
       her. When that teller froze, he moved over to her and demanded that she place all her money
       in a pillow case. She took the pillow case and filled it with money that had been prerecorded
       and a dye pack. The masked man then thanked her for her cooperation and quickly left the
       bank.
¶ 14       Several officers’ proposed testimony would include statements that defendant was found
       hiding behind a couch in a residential garage not far from the bank. His clothing was stained
       red. The officers recovered a .22-caliber semiautomatic handgun from the window well and
       removed an unloaded magazine from it. In his statement, defendant admitted that he
       committed the robbery using a handgun that he believed was not loaded. He told the officer
       that he did not intend to hurt anyone.
¶ 15       The trial court found defendant guilty of armed robbery as charged. The court also found
       that the aggravating factor of armed with a firearm was proven beyond a reasonable doubt.
¶ 16       At sentencing, the State advised the court that defendant’s use of a gun to commit the
       crime required the application of the 15-year enhancement provision; thus, defendant could
       not be sentenced to less than 21 years in prison. The State recommended that the minimum
       sentence be imposed. Defense counsel argued that the 15-year enhancement was
       unconstitutional due to defendant’s young age. The trial court sentenced defendant to the
       minimum term of 6 years plus the 15-year enhancement.
¶ 17       Defendant first argues that the trial court erred in granting the State’s motion to transfer
       him to criminal court because it failed to consider evidence in support of every factor under
       the discretionary transfer statute.
¶ 18       In Illinois, a 13-year-old minor may be prosecuted as an adult under the criminal laws of
       the State if a juvenile court determines, in its discretion, that there is probable cause to
       believe the allegations in a transfer motion are true and it is not in the best interests of the
       public to proceed under the Act. 705 ILCS 405/5-805(3)(a) (West 2008). In determining
       whether to transfer a juvenile, the court must consider, among other things,
                     “(i) the age of the minor;


                                                 -4-
                    (ii) the history of the minor, including:
                         (A) any previous delinquent or criminal history of the minor,
                         (B) any previous abuse or neglect history of the minor, and
                         (C) any mental health, physical, or educational history of the minor or
                    combination of these factors;
                    (iii) the circumstances of the offense, including:
                         (A) the seriousness of the offense,
                         (B) whether the minor is charged through accountability,
                         (C) whether there is evidence the offense was committed in an aggressive and
                    premeditated manner,
                         (D) whether there is evidence the offense caused serious bodily harm,
                         (E) whether there is evidence the minor possessed a deadly weapon;
                    (iv) the advantages of treatment within the juvenile justice system including
                whether there are facilities or programs, or both, particularly available in the juvenile
                system;
                    (v) whether the security of the public requires sentencing under Chapter V of the
                Unified Code of Corrections:
                         (A) the minor’s history of services, including the minor’s willingness to
                    participate meaningfully in available services;
                         (B) whether there is a reasonable likelihood that the minor can be
                    rehabilitated before the expiration of the juvenile court’s jurisdiction;
                         (C) the adequacy of the punishment or services.” 705 ILCS 405/5-805(3)(b)
                    (West 2008).
¶ 19       The purpose of a transfer proceeding is to balance the best interests of the juvenile
       offender, particularly as his interests relate to his potential for rehabilitation, against the
       public’s interest in being protected from crime. People v. Morgan, 197 Ill. 2d 404 (2001);
       People v. Clark, 119 Ill. 2d 1 (1987). The history of the transfer statute makes clear that a
       juvenile judge in a transfer proceeding must weigh relevant statutory and nonstatutory factors
       in striking the balance for society by transferring the alleged juvenile offender or in striking
       the balance for the minor by retaining jurisdiction. Clark, 119 Ill. 2d at 12.
¶ 20       To that extent, a juvenile judge must receive and consider evidence as to each statutory
       factor. Clark, 119 Ill. 2d at 18. A juvenile judge must evaluate information concerning the
       type of facilities available for the treatment or rehabilitation of the minor and must evaluate
       the likely effectiveness of those facilities in light of the history and present circumstances of
       the minor. Morgan, 197 Ill. 2d at 428-29. A juvenile judge should also consider critical
       nonstatutory elements such as the resulting sentence if the minor is convicted under the
       Criminal Code. Clark, 119 Ill. 2d at 14. A harsh penalty that is mandated upon conviction
       is a factor to be weighed in determining whether the best interest of the minor and “ ‘the
       security of the public’ ” may require that the minor continue in custody or under supervision
       for a period extending beyond his minority. Id. at 15. Adequate balancing under the statute


                                                  -5-
       requires consideration of which penalty would best serve both interests at stake. Id.
¶ 21       The decision to permit prosecution of a juvenile under the criminal law is a matter of
       judicial discretion, although that discretion is limited and controlled by the Act. See 705
       ILCS 405/1-1 et seq. (West 2008). To affirm an order transferring a minor to criminal court,
       this court must determine if there was sufficient evidence in the record as to each statutory
       factor to support the transfer order. Morgan, 197 Ill. 2d at 428. The mere recitation in the
       record that all statutory factors have been considered is not enough to affirm a discretionary
       transfer order. Clark, 119 Ill. 2d at 18.
¶ 22       Here, the trial court did not adequately address two statutory transfer factors and one
       nonstatutory factor. First, no evidence was presented at the transfer hearing regarding the
       availability and advantages of treatment services in the juvenile system. 705 ILCS 405/5-
       805(3)(b)(iv) (West 2008). The State presented defendant’s file in his prior juvenile case,
       which discussed the services defendant received while on probation in the domestic abuse
       case. However, a review of the broad services available to defendant for the instant offense
       was not presented to the trial court. The State failed to present any testimony as to the types
       of facilities available for defendant’s treatment or rehabilitation in juvenile detention as
       compared to the adult division of the Department of Corrections. Moreover, the juvenile
       judge did not consider any evidence regarding the adequacy of those services, or the
       punishment. The court relied on defendant’s noncompliance while on probation but failed
       to consider defendant’s potential for rehabilitation by participating in mandatory services in
       juvenile detention.
¶ 23       Second, the evidence presented at the transfer hearing failed to establish that defendant
       possessed a deadly weapon, a factor that must be considered under the juvenile transfer
       statute. 705 ILCS 405/5-805(3)(b)(iii)(E) (West 2008). The transfer statute does not define
       a “deadly weapon.” However, for purposes of armed robbery, the State may prove that a
       handgun is a dangerous (or deadly) weapon by presenting evidence that the gun was loaded
       and operable, or by demonstrating that it was used or capable of being used in a dangerous
       manner, such as a bludgeon or club. People v. Ross, 229 Ill. 2d 255, 276 (2008); People v.
       Skelton, 83 Ill. 2d 58 (1980). The trial court’s finding that a gun is a dangerous weapon
       should be based on the objective nature of the gun, rather than the subjective feelings of the
       victim. Ross, 229 Ill. 2d at 277.
¶ 24       In this case, the evidence did not show that defendant used a dangerous or deadly
       weapon. The State failed to present any evidence that the gun was loaded. Defendant told
       Detective Turner that he did not think the gun was loaded. The officers who recovered the
       weapon found that the magazine was empty and verified that the gun was inoperable.
       Moreover, the State failed to demonstrate that defendant used or attempted to use the gun as
       a bludgeon or other deadly instrument. See Ross, 229 Ill. 2d at 273-76. Thus, based on the
       stipulated evidence presented at the transfer hearing, the trial court erred in finding that
       defendant “possessed a deadly weapon.” See 705 ILCS 405/5-805(3)(b)(iii)(E) (West 2008).
¶ 25       In relying on Ross, we note that the discussion in that case is based on the 1998 version
       of the armed robbery statute. See 720 ILCS 18-2(a) (West 1998) (defendant commits armed
       robbery when he or she is “otherwise armed with a dangerous weapon”). In 2000, the


                                                -6-
       legislature amended the armed robbery statute. Under the current version, section 18-2(a)(1)
       requires proof that the accused was “armed with a dangerous weapon,” and section 18-
       2(a)(2) requires proof that the accused was “armed with a firearm.” See Pub. Act 91-404, § 5
       (eff. Jan.1, 2000) (amending 720 ILCS 5/18-2 (West 1998)). Thus, under section 18-2(a)(2)
       of the armed robbery statute, whether a firearm is loaded or unloaded is immaterial, and the
       Ross analysis no longer applies.
¶ 26        However, the juvenile transfer statute still requires the circuit court to evaluate “whether
       there is evidence the minor possessed a deadly weapon.” 705 ILCS 405/5-805(3)(b)(iii)(E)
       (West 2008). As a result, the Ross court’s discussion regarding the use of an unloaded gun
       is relevant to our analysis. Here, defendant’s possession of an unloaded handgun required the
       State to present evidence that the gun could have been used as a club or bludgeon, or was
       actually used in a deadly manner. See Ross, 229 Ill. 2d at 276. The State failed to meet that
       burden.
¶ 27        In addition to the statutory factors, the trial court failed to consider the critical
       nonstatutory element: the potential term of defendant’s sentence as an adult. Our supreme
       court has stated that the minimum sentence or term of years defendant would have to serve
       under the Criminal Code should be considered as a factor in addressing and weighing the
       competing interests. See Clark, 119 Ill. 2d at 14. In Clark, the court observed that the
       juvenile court’s discretion to waive jurisdiction must be exercised within the limits of due
       process and must comport with the applicable statutory guidelines. As a threshold matter, the
       transfer statute “ ‘assumes procedural regularity sufficient in the particular circumstances to
       satisfy the basic requirements of due process and fairness, as well as compliance with the
       statutory requirement of a full investigation.’ ” (Internal quotation marks omitted.) (Emphasis
       omitted.) Clark, 119 Ill. 2d at 12 (quoting Kent v. United States, 383 U.S. 541, 552-53
       (1966)).
¶ 28        Here, the only mention of an adult sentence was defense counsel’s brief reference in
       closing argument to the “possibility” of an enhanced sentence, without mention of a specific
       term. This reference was insufficient to satisfy the purpose of the transfer statute. The motion
       to transfer record contains no discussion of the minimum sentence or the term of years
       defendant would serve if he was transferred and tried in criminal court. The juvenile judge
       was not informed that defendant faced a term of 6 to 30 years in prison. The judge also was
       not informed that the 15-year gun enhancement was mandatory under the criminal law,
       resulting in a minimum of 21 years in the adult system. Basic notions of due process require
       more. See Kent, 383 U.S. at 552-53.
¶ 29        Since three transfer factors had no evidentiary support in the record and were not properly
       considered by the juvenile court, the court’s transfer order was an abuse of discretion.
¶ 30        In light of our disposition on the transfer issue, it is not necessary to reach defendant’s
       constitutional arguments.
¶ 31        We vacate the juvenile court’s decision and remand for further proceedings in juvenile
       court. On remand, the State will have the opportunity to amend the charge in the juvenile
       petition to correctly reflect the elements of the offense as provided in section 18-2(a)(2) of
       the armed robbery statute. See People v. Barnett, 2011 IL App (3d) 090721; 720 ILCS 5/18-


                                                 -7-
       2(a)(2) (West 2008).
¶ 32       The judgment of the circuit court of Peoria County is reversed. The order transferring
       defendant for trial as an adult under the Criminal Code is vacated, and the cause is remanded
       to juvenile court for further proceedings.

¶ 33      Reversed and vacated; cause remanded with directions.




                                                -8-
