                           ILLINOIS OFFICIAL REPORTS
                                         Supreme Court




                                    In re M.I., 2013 IL 113776




Caption in Supreme         In re M.I., a Minor (The People of the State of Illinois, Appellee, v. M.I.,
Court:                     Appellant).



Docket No.                 113776


Filed                      May 23, 2013


Held                       Where a motion was made to designate a juvenile proceeding as an
(Note: This syllabus       extended jurisdiction juvenile prosecution, the statute calling for a
constitutes no part of     hearing on the motion within 60 days was directory rather than
the opinion of the court   mandatory, and failure to hold the hearing within that time did not
but has been prepared      invalidate an adult sentence subsequently imposed after the granting of
by the Reporter of         the motion—Apprendi challenge to extended jurisdiction juvenile statute
Decisions for the          rejected.
convenience of the
reader.)


Decision Under             Appeal from the Appellate Court for the First District; heard in that court
Review                     on appeal from the Circuit Court of Cook County, the Hon. Terrence V.
                           Sharkey, Judge, presiding.



Judgment                   Affirmed.
Counsel on                 Michael J. Pelletier, State Appellate Defender, Alan D. Goldberg, Deputy
Appeal                     Defender, and Emily E. Filpi, Assistant Appellate Defender, of the Office
                           of the State Appellate Defender, of Chicago, for appellant.

                           Lisa Madigan, Attorney General, of Springfield, and Anita Alvarez,
                           State’s Attorney, of Chicago (Alan J. Spellberg, Michelle Katz and
                           Annette Collins, Assistant State’s Attorneys, of counsel), for the People.

                           Lindsay E. Morgan, of DLA Piper LLP (US), of Chicago, for amicus
                           curiae The Children and Family Justice Center.


Justices                   JUSTICE GARMAN delivered the judgment of the court, with opinion.
                           Chief Justice Kilbride and Justices Freeman, Thomas, Karmeier, Burke,
                           and Theis concurred in the judgment and opinion.



                                               OPINION

¶1        Respondent, M.I., a minor, was adjudicated delinquent after the circuit court of Cook
      County found him guilty of three counts of aggravated discharge of a weapon and two counts
      of aggravated unlawful use of a weapon. Prior to trial, the State filed a motion to designate
      the proceedings as an extended jurisdiction juvenile (EJJ) prosecution pursuant to the
      Juvenile Court Act of 1987 (705 ILCS 405/5-810 (West 2008)). The trial court granted the
      motion and designated the case an EJJ prosecution. Following the respondent’s adjudication
      as delinquent, the trial court sentenced the respondent to an indeterminate time in the
      juvenile division of the Illinois Department of Corrections (IDOC), which shall end no later
      than respondent’s twenty-first birthday. The trial court also sentenced respondent to an adult
      sentence of 23 years in prison, which was to be imposed only if respondent failed to
      successfully complete his juvenile sentence. The appellate court affirmed. 2011 IL App (1st)
      100865. This court allowed respondent’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff.
      Feb. 26, 2010). Respondent raises three arguments: (1) the statutory requirement to hold a
      hearing within 601 days of the filing of an EJJ motion is mandatory, and the failure to hold
      such a hearing renders respondent’s adult sentence void; (2) the EJJ statute is
      unconstitutionally vague because it does not specify what conduct results in the revocation
      of the stay on the adult sentence; and (3) the EJJ statute violates the holding in Apprendi v.
      New Jersey, 530 U.S. 466 (2000), that the United States Constitution guarantees that all

              1
                The EJJ statute sets the initial time limit for holding a hearing at 30 days, but the time can
      be extended to 60 days on a showing of good cause for the extension. For simplicity’s sake, we will
      refer to the time limit as 60 days.

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     sentencing enhancements be proven beyond a reasonable doubt. For the following reasons,
     we affirm the judgment of the appellate court, which affirmed the circuit court’s judgment.

¶2                                      BACKGROUND
¶3       A petition for adjudication of wardship was filed by the State against respondent on April
     24, 2009. The petition charged respondent, 16 years old, with three counts of aggravated
     discharge of a firearm (720 ILCS 5/24-1.2(a)(2), (3) (West 2008)), one count of reckless
     discharge of a firearm (720 ILCS 5/24-1.5 (West 2008)), three counts of aggravated unlawful
     use of a weapon (720 ILCS 5/24-1.6(a)(1) (West 2008)) and one count of unlawful
     possession of firearms (720 ILCS 5/24-3.1(a)(1) (West 2008)). On May 5, 2009, the State
     filed a motion to designate the proceeding as an EJJ prosecution pursuant to section 5-810
     of the Juvenile Court Act of 1987. The motion alleged that respondent was charged with
     offenses that would constitute felonies, whether committed by a juvenile or an adult, and that
     “[t]here [was] probable cause to believe that the minor committed the offenses” contained
     in the motion. The motion indicated the State would appear in court on May 7, 2009, to
     request a hearing on the motion.
¶4       Respondent’s case was continued several times before the EJJ hearing was actually held.
     On May 7, 2009, the cause was continued to May 21, 2009, for status, on the agreement of
     both parties. On May 21, 2009, the State asked for 30 days to be ready for the hearing and
     the cause was continued to June 22, 2009, for hearing on the State’s EJJ motion, without
     objection from defense counsel. On June 22, 2009, respondent’s new counsel filed his
     appearance and the public defender’s office withdrew from the case. The State answered “not
     ready” for the hearing because it was still waiting for some of respondent’s school records.
     Defense counsel did not object and suggested July 6 as the new date; the case was continued
     for status to July 6, 2009. On July 6, 2009, the cause was continued for the EJJ hearing to
     August 12, 2009, without objection.
¶5       The hearing on the State’s motion for EJJ designation was held on August 12, 2009, 98
     days after the filing of the motion. At the hearing, the State proffered evidence supporting
     “probable cause” for the charges against respondent. The proffer included a recitation of
     what officers and witnesses would testify to if called to the stand concerning the basis for the
     charges. The defense also made a proffer as to what the officers and its witness would testify
     to that tended to favor the defense. The court then heard arguments from the parties on
     whether the State had established probable cause. The court found probable cause had been
     established. The hearing moved to the next phase for the court to determine whether there
     was clear and convincing evidence that the case should not be designated an EJJ prosecution.
     Here, the court was presented with evidence concerning: (1) the seriousness of the offense;
     (2) respondent’s history of delinquency; (3) respondent’s age; (4) the culpability of
     respondent in committing the offense; (5) whether the offense was committed in an
     aggressive or premeditated manner; and (6) whether respondent used or possessed a deadly
     weapon when committing the offense. 705 ILCS 405/5-810(1)(b) (West 2008). The State
     presented the testimony of respondent’s juvenile probation officer. Following the State’s
     examination of the officer and defense counsel’s cross-examination and the parties’


                                               -3-
     arguments, the hearing concluded.
¶6       On September 1, 2009, the trial court found that, based on respondent’s being 16 years
     old at the time of the offense and probable cause being established for the serious charges
     against respondent, a rebuttable presumption had been created that the case should be
     designated an EJJ prosecution. Thus, absent clear and convincing evidence that a stayed adult
     sentence along with a juvenile sentence would not be appropriate, the case would receive an
     EJJ prosecution designation. Following a recitation of the evidence presented at the EJJ
     hearing, the court found no clear and convincing evidence that a stayed adult sentence would
     be inappropriate. The court also noted that respondent had a previous conviction for
     aggravated unlawful use of a weapon in October 2008. Respondent was placed on probation
     for this conviction. The court granted the State’s motion to designate the case an EJJ
     prosecution.
¶7       On October 15, 2009, respondent waived his right to a jury trial.2 Respondent again
     waived his right on November 20, 2009. At respondent’s December 2009 bench trial, the
     evidence revealed that Chicago police responded to a large fight involving 30 to 40
     individuals in April 2009. The officers were in plain clothes, but their police badges were
     displayed on the outside of their clothing. Upon arrival at the scene, Officer Kevin Kelly
     yelled, “police, stop, stop, stop.” Officer Kevin Kelly and Sergeant Thomas Mason testified
     that, moments after police arrived on scene, respondent fired multiple gunshots in their
     direction. The trial court found respondent guilty beyond a reasonable doubt of three counts
     of aggravated discharge of a firearm, two counts of aggravated unlawful use of a weapon,
     and reckless discharge of a firearm. Respondent’s sentencing hearing was held on February
     25, 2010. The trial court, in denying respondent’s motion for a new trial, vacated
     respondent’s conviction for reckless discharge of a firearm, finding that the shooting could
     not be both reckless and intentional. The court then merged the third count of the aggravated
     discharge charge into the first count. The court also merged the two counts of aggravated
     unlawful use of a weapon into the first aggravated discharge of a firearm conviction. The
     court stated it was sentencing respondent based on the two counts of aggravated discharge
     of a firearm. The court sentenced respondent “for an indeterminate period” to the juvenile
     IDOC to end no later than his twenty-first birthday. The court also imposed a 23-year adult
     sentence, which was stayed pending the successful completion of the juvenile sentence.
¶8       The appellate court affirmed respondent’s conviction and sentence. 2011 IL App (1st)
     100865. The court ruled that the evidence presented at trial was sufficient to find respondent
     guilty of aggravated discharge of a firearm. The court further found that the EJJ statutory
     provision setting forth a 60-day time frame for conducting a hearing on the State’s motion
     to designate the case an EJJ prosecution was directory, not mandatory, and thus the failure
     to hold the hearing within 60 days in respondent’s case did not vitiate the subsequent EJJ
     proceedings or stayed adult sentence. 2011 IL App (1st) 100865, ¶ 52. The appellate court
     also found that respondent did not have standing to challenge the revocation of the stay on


             2
              A different judge handled the jury waiver, bench trial, and sentencing than the judge who
     handled the EJJ motion.

                                                -4-
       his adult sentence on vagueness grounds, since no petition to revoke had been filed and the
       stay itself had not yet been revoked. 2011 IL App (1st) 100865, ¶ 61.
¶9         In March 2012 the State filed a petition to revoke respondent’s stayed adult sentence
       pursuant to section 5-810(6) of the EJJ statute, alleging that respondent had committed a new
       offense, delivery of a controlled substance. 720 ILCS 570/401(c)(1) (West 2010).
       Respondent was convicted at jury trial of the drug offense in December 2012. The State’s
       petition to revoke respondent’s stay on the adult sentence has been stayed pending our
       decision in this case.

¶ 10                                         ANALYSIS
¶ 11       On appeal to this court, respondent raises three issues: (1) whether the requirement in the
       EJJ statute that the trial court hold a hearing on the State’s motion to designate the case an
       EJJ prosecution within 60 days of the motion’s filing is mandatory or directory; (2) whether
       the EJJ statute is unconstitutionally vague in how it defines the conduct that will invoke the
       imposition of the adult sentence and whether the statute fails to provide adequate guidance
       to authorities called upon to enforce its provisions; and (3) whether the EJJ statute violates
       Apprendi because it subjects a juvenile defendant to increased punishment without requiring
       a jury to find proof beyond a reasonable doubt as to the facts qualifying a juvenile defendant
       for EJJ prosecution.

¶ 12                            I. The 60-Day Hearing Requirement
¶ 13       Respondent contends that the provision in the EJJ statute that, upon the State’s filing of
       a motion to designate the juvenile case an EJJ prosecution, requires that a hearing to be held
       within 60 days of the motion’s filing is mandatory. Respondent further argues that because
       the 60-day requirement is mandatory, an adult sentence imposed pursuant to an EJJ hearing
       held outside the 60-day limit is void. The State counters that the 60-day hearing requirement
       is merely directory, and that a properly imposed adult sentence, even if rendered pursuant to
       an EJJ hearing held outside the 60-day limit, is not void.
¶ 14       The statutory provision at issue states:
                   “(2) Procedures for extended jurisdiction juvenile prosecutions. The State’s
               Attorney may file a written motion for a proceeding to be designated as an extended
               juvenile jurisdiction prior to commencement of trial. Notice of the motion shall be
               in compliance with Section 5-530. When the State’s Attorney files a written motion
               that a proceeding be designated an extended jurisdiction juvenile prosecution, the
               court shall commence a hearing within 30 days of the filing of the motion for
               designation, unless good cause is shown by the prosecution or the minor as to why
               the hearing could not be held within this time period. If the court finds good cause
               has been demonstrated, then the hearing shall be held within 60 days of the filing of
               the motion. The hearings shall be open to the public unless the judge finds that the
               hearing should be closed for the protection of any party, victim or witness. If the
               Juvenile Judge assigned to hear and determine a motion to designate an extended
               jurisdiction juvenile prosecution determines that there is probable cause to believe

                                                -5-
                that the allegations in the petition and motion are true, the court shall grant the
                motion for designation. Information used by the court in its findings or stated in or
                offered in connection with this Section may be by way of proffer based on reliable
                information offered by the State or the minor. All evidence shall be admissible if it
                is relevant and reliable regardless of whether it would be admissible under the rules
                of evidence.” 705 ILCS 405/5-810(2) (West 2008).
¶ 15        “Whether a statutory command is mandatory or directory is a question of statutory
       construction, which we review de novo.” People v. Robinson, 217 Ill. 2d 43, 54 (2005).
       When construing a statute, our primary objective is to ascertain and give effect to legislative
       intent, the surest and most reliable indicator of which is the statutory language itself, given
       its plain and ordinary meaning. People v. Giraud, 2012 IL 113116, ¶ 6. “ ‘In determining the
       plain meaning of statutory terms, we consider the statute in its entirety, keeping in mind the
       subject it addresses and the apparent intent of the legislature in enacting it.’ ” Id. (quoting
       People v. Perry, 224 Ill. 2d 312, 323 (2007)).
¶ 16        The parties agree that the question facing the court is whether the statutory provision is
       mandatory or directory, not mandatory or permissive. See People v. Delvillar, 235 Ill. 2d
       507, 514 (2009) (“Resolution of this issue requires an explanation of two distinct questions
       that are, as this court has acknowledged, easily confused because they both contain the term
       ‘mandatory.’ ”). Under the mandatory or directory question, “statutes are mandatory if the
       intent of the legislature dictates a particular consequence for failure to comply with the
       provision.” Id. However, in the absence of such legislative intent “the statute is directory and
       no particular consequence flows from noncompliance.” Id. at 515. There are consequences
       to a directory reading, but a directory reading “acknowledges only that no specific
       consequence is triggered by the failure to comply with the statute.” (Emphasis added.) Id. In
       other words, the mandatory/directory question “ ‘simply denotes whether the failure to
       comply with a particular procedural step will or will not have the effect of invalidating the
       governmental action to which the procedural requirement relates.’ ” Robinson, 217 Ill. 2d at
       51-52 (quoting Morris v. County of Marin, 559 P.2d 606, 610-11 (Cal. 1977)).
¶ 17        “With respect to the mandatory/directory dichotomy, we presume that language issuing
       a procedural command to a government official indicates an intent that the statute is
       directory.” Delvillar, 235 Ill. 2d at 517. This presumption is overcome, and the provision will
       be read as mandatory, under either of two conditions: (1) when there is negative language
       prohibiting further action in the case of noncompliance or (2) when the right the provision
       is designed to protect would generally be injured under a directory reading. Id.
¶ 18        Neither condition applies in this case. First, concerning negative language, section 5-
       810(2) lacks any negative language prohibiting further action if the hearing is not held within
       60 days of the motion’s filing. There are no specific consequences prescribed in the provision
       at issue, or for that matter any other subsection of section 5-810, for the court’s failure to
       hold a hearing on the State’s EJJ prosecution motion within 60 days of the motion’s filing.
       Respondent conceded as much at oral argument. After the sentence providing that the hearing
       must be held within 30 days of the motion’s filing, or within 60 days if the court finds the
       State or the minor has shown good cause for why it could not be held within 30 days, the
       statute states that the hearing should be open to the public. The rest of the provision details

                                                 -6-
       the evidentiary and proof standards the court is to use in determining whether the case should
       be designated an EJJ prosecution. Thus, the EJJ statute itself does not contain specific
       consequences for noncompliance with its 60-day limit.
¶ 19        Although the provision states that “the court shall commence a hearing within 30 days
       of the filing of the motion for designation” (emphasis added) (705 ILCS 405/5-810(2) (West
       2008)) “in no case regarding the mandatory/directory dichotomy has ‘shall’ controlled the
       outcome.” Robinson, 217 Ill. 2d at 53. Whenever the mandatory/directory dichotomy is at
       issue, as in this case, the word “shall” is not determinative. Robinson, 217 Ill. 2d at 54. In
       Robinson, we were asked to interpret a provision in the Post-Conviction Hearing Act that
       addressed the procedures governing the circuit court when it determines that a postconviction
       petition is frivolous or patently without merit. 725 ILCS 5/122-2.1(a)(2) (West 2000). The
       statutory provision in question provided that the circuit court “ ‘shall dismiss the petition in
       a written order ***. Such order of dismissal is final and shall be served upon the petitioner
       by certified mail within 10 days of its entry.’ ” (Emphasis added.) Robinson, 217 Ill. 2d at
       50 (quoting 725 ILCS 5/122-2.1(a)(2) (West 2000)). The circuit clerk failed to serve the
       defendant with the order of dismissal until 12 days after the court entered the order, thus not
       complying with the statutory language requiring service within 10 days of the judgment. Id.
       at 47. We found that the negative language exception did not apply, however, despite the
       legislature’s use of the word “shall,” as “the statute does not include negative words
       indicating that no dismissal shall occur or become effective unless the petitioner is timely
       served.” Id. at 58. We found that, if the legislature had intended a different arrangement, it
       “could easily have written, for example, that no summary dismissal shall be entered unless
       the clerk timely serves notice of the court’s intent to dismiss, or that no dismissal shall
       become a final order unless there is timely service.” Id.
¶ 20        Similar to Robinson, the use of the word “shall” in section 5-810(2) does not indicate
       legislative intent to use negative language to make the provision mandatory. No specific
       consequences are detailed in the provision for failure to comply with the 60-day requirement.
       If the legislature had intended a different arrangement it could have written, for example, that
       any adult sentence imposed pursuant to an EJJ sentence is void if the hearing on the motion
       is held more than 60 days after the filing of the State’s motion. See Robinson, 217 Ill. 2d at
       58. We agree with the conclusion reached by the appellate court in this case, that “[t]he
       statute does not prohibit the trial court from conducting a hearing on the State’s motion if the
       30- or 60-day time frame has passed nor does it provide for a result, such as, a dismissal of
       the State’s motion, if a hearing occurs after the designated time frame.” 2011 IL App (1st)
       100865, ¶ 51. The “negative language” exception does not apply to this case.
¶ 21        Respondent points to the use of “shall” and “may” in proximity to each other in section
       5-810(6) to show that the legislature intended for “shall” to have a mandatory reading in the
       EJJ statute. Specifically, respondent cites to section 5-810(6)’s provision that, when the court
       finds a juvenile defendant has committed a new offense, the court “shall order execution”
       of the adult sentence, whereas if the juvenile defendant violates a condition of the EJJ
       sentence, the court “may order execution of the adult sentence.” We disagree with
       respondent’s interpretation. Respondent is confusing the mandatory/permissive dichotomy
       and the mandatory/directory dichotomy. In the case of section 5-810(6), “shall” is mandatory

                                                 -7-
       in the sense that executing the adult sentence when the minor has committed a new offense
       is an obligation that a government entity is required to perform, while “may” is permissive,
       in that the court has a discretionary power concerning a juvenile defendant’s violation of a
       condition of sentence where the court may or may not execute the adult sentence. See
       Delvillar, 235 Ill. 2d at 514. Similarly, the use of “shall” in section 5-810(2) is mandatory
       in terms of the mandatory/permissive dichotomy, in that the court has an obligation to hold
       a hearing on the State’s EJJ motion. However, the mandatory/permissive and
       mandatory/directory dichotomy are two separate questions. Delvillar, 235 Ill. 2d at 514.
       Under the mandatory/permissive dichotomy, “shall” usually does indicate the legislature
       intended to impose a mandatory obligation, however under the mandatory/directory
       dichotomy, “shall” does not control the outcome. Robinson, 217 Ill. 2d at 53-54. The use of
       “shall” and “may” in section 5-810(6) does not dictate a finding that the legislature intended
       a mandatory reading for the use of “shall” in section 5-810(2) under the mandatory/directory
       dichotomy.
¶ 22        We further find the Minnesota Appellate Court decision of In re Welfare of C.L.S., 558
       N.W.2d 12 (Minn. Ct. App. 1997), overruled on other grounds by In re Welfare of D.M.D.,
       607 N.W.2d 432 (Minn. 2000), cited by respondent, to be distinguishable. The Minnesota
       EJJ statute stated that the trial court must hold an EJJ designation hearing within 30 days
       after the relief is requested, unless good cause is shown, and, if good cause is shown by the
       prosecution, the court may extend the hearing up to an additional 60 days. C.L.S., 558
       N.W.2d at 13. However, the statute stated that “the hearing ‘shall be held’ within 90 days
       after the request is filed.” Id. The Minnesota court held that “shall be held” meant that the
       time limit was mandatory. Id. To support its mandatory reading, the court cited the
       following: (1) the statute’s use of “shall”; (2) the fact that “time is of the essence in juvenile
       matters”; and (3) the failure of the statutory limit to contemplate for an enlargement of time
       beyond the 90-day period. Id. at 14. However, the court rejected the juvenile defendant’s
       request for dismissal of the EJJ designation with prejudice, noting that the Minnesota EJJ
       statute provides for juvenile court jurisdiction over a juvenile defendant until he or she turns
       21, and concluded that “[i]f a new petition is filed in this case before appellant reaches age
       21, the juvenile court has continuing jurisdiction in the absence of a showing that delay has
       been purposefully caused to gain unfair advantage.” Id. The court held
                “Because jurisdiction of the juvenile court for an EJJ certification in this case has not
                yet expired under current statutory law and the legislature has seen fit to state a
                mandatory time rule but to withhold statement of a sanction for untimely
                proceedings, we reverse and vacate the trial court’s EJJ designation without
                prejudice.” Id.
¶ 23        We find C.L.S. to be distinguishable and unpersuasive in our analysis of the instant case.
       First, the court in C.L.S. appeared to place great importance on the use of “shall” in the
       statute. Id. at 13 (“It is evident, as appellant argues, that the statutory time limit in Minn. Stat.
       § 260.126, subd. 2, is stated in mandatory terms. The hearing ‘shall be held’ within the
       prescribed 90 day period.”). In our own case law, however, whenever the
       mandatory/directory dichotomy is at issue, the word “shall” is not determinative. Robinson,
       217 Ill. 2d at 54. Further, the Minnesota statute at issue in C.L.S. appears to be fundamentally

                                                   -8-
       different from our own in that the juvenile court retains continuing EJJ jurisdiction over a
       juvenile defendant until that defendant turns 21, thus apparently allowing for the filing of an
       EJJ petition at any time before the juvenile turns 21. C.L.S., 558 N.W.2d at 14. The court
       found the State could file a new petition before, during, or after the trial, as the Minnesota
       statute did not contain any prohibitory language on filing new petitions following dismissal
       for failure to abide by the 90-day limitation. Id. Our EJJ statute, by contrast, clearly limits
       the State to filing the EJJ petition before the trial. We find the Minnesota statute and the
       reasoning employed by the Minnesota court to be distinguishable from our own statute and
       case law in the instant matter.
¶ 24       We next ask whether the right that the statute intends to protect would be generally
       injured by a directory reading of the statute. Delvillar, 235 Ill. 2d at 518. However, before
       determining if the right to be protected would be generally injured by a directory reading of
       the statute, we must first determine what right the statute intends to protect. At oral
       argument, respondent contended that the right intended to be protected by the 60-day time
       frame was the respondent’s right to have time to prepare and receive advice on legal strategy.
       The State, at oral argument, argued that the right to be protected was that the juvenile not be
       held in unnecessarily lengthy detention beyond a reasonable period of time and that the
       hearing take place in a reasonable amount of time before the trial. We agree with the
       appellate court that “[t]he right to be protected here is the right of a minor respondent to
       receive a hearing before being subject to an EJJ proceeding and a stayed adult sentence.”
       2011 IL App (1st) 100865, ¶ 52. The 60-day limit ensures that the hearing will be held in
       some reasonable time after the motion’s filing and before the trial.
¶ 25       Respondent argues that his right to a fair hearing would be generally injured by a
       directory reading. Respondent argues that allowing a hearing to be held “indefinitely” outside
       the time limit puts the juvenile defendant in a state of uncertainty and affects his counsel’s
       advice and preparation before trial. However, this uncertainty would exist even under a
       mandatory reading, because the EJJ statute allows the State to “file[ ] a petition, at any time
       prior to commencement of the minor’s trial, to designate the proceeding” an EJJ prosecution.
       705 ILCS 405/5-810(1)(a) (West 2008). Conceivably, the State could file an EJJ motion
       weeks before a trial was set to begin. This “uncertainty” would be left unaffected by a
       mandatory reading.
¶ 26       Respondent further argues that the State could use a directory reading as a litigation tactic
       to induce guilty pleas and also that a directory reading may lead to unnecessary delays. A
       proposed mandatory reading, however, could also lead to litigation tactics by the parties. A
       mandatory reading may force the State to “refile” an EJJ motion if a hearing could not be
       held within 60 days, and could end up allowing for dilatory tactics by a juvenile defendant
       who could intentionally delay the proceedings to put the hearing outside the 60-day limit.
       Further, a juvenile defendant could be harmed under a mandatory reading because concern
       over the 60-day limit could prevent the court from granting a continuance requested by the
       juvenile. Next, as to “unnecessary delay,” we agree with the State that, under a directory
       reading, the trial court can maintain sufficient control over the proceedings to prevent the
       parties from occasioning purposeful delay through unwarranted continuances. A mandatory
       reading would remove discretion and control from the trial court, and (1) force the parties

                                                 -9-
       to conduct a hearing for which they might not be fully prepared and (2) the court might not
       have in front of it all the best evidence to make a decision on the EJJ designation. A directory
       reading, in this case, preserves for the juvenile court the discretion and control of its docket
       in the handling of juvenile matters.
¶ 27       Respondent’s right to receive a hearing before being subject to an EJJ proceeding and a
       stayed adult sentence was not injured. The statute provides that the juvenile defendant is
       entitled to notice of the EJJ motion filing and a hearing on the motion. 705 ILCS 405/5-
       810(2) (West 2008). Respondent received both in this case. Respondent has not shown how
       having the hearing occur outside the 60-day limit, but before trial, prejudiced him in any way.
       Respondent was properly notified of the motion’s filing and his counsel received adequate
       time to prepare and argue against the motion.
¶ 28       We presume that language issuing a procedural command to a government official
       indicates an intent that the statute is directory. Delvillar, 235 Ill. 2d at 517. Because the EJJ
       statute does not contain negative language prohibiting further action in the case of
       noncompliance and the right the provision is designed to protect is not injured by a directory
       reading, we hold that section 5-810(2)’s requirement that a hearing on the State’s EJJ
       designation motion be held within 60 days is directory. See id.

¶ 29                                        II. Vagueness
¶ 30       Respondent contends that the EJJ statute is unconstitutionally vague because it does not
       provide fair warning to the juvenile defendant of the conduct that will invoke the imposition
       of the stayed adult sentence. Respondent also argues that the statute fails to provide adequate
       guidance to authorities called upon to enforce its provisions. The State responds that the EJJ
       statute is neither facially vague nor is it vague as applied to respondent. The State further
       argues that respondent lacks standing to challenge the constitutionality of the EJJ statute on
       vagueness grounds.
¶ 31       Before addressing respondent’s vagueness arguments on the merits, we must first
       determine whether respondent has standing to bring this constitutional challenge. Here, the
       State argues that, because the EJJ sentence has yet to actually be executed, respondent has
       yet to suffer any injury and he has yet to have, and may never have, his adult sentence
       enforced. Respondent counters that since the petition to revoke the stay of adult sentence has
       been filed, he is in immediate danger of sustaining a direct injury as a result of the statute’s
       enforcement, and thus has standing.
¶ 32       “The purpose of the doctrine of standing is to ensure that courts are deciding actual,
       specific controversies, and not abstract questions or moot issues.” In re Marriage of
       Rodriguez, 131 Ill. 2d 273, 279-80 (1989). In order to have standing to bring a constitutional
       challenge, a person must show himself to be within the class aggrieved by the alleged
       unconstitutionality. People v. Morgan, 203 Ill. 2d 470, 482 (2003), overruled on other
       grounds by People v. Sharpe, 216 Ill. 2d 481 (2005). “The general rule is that courts will not
       consider the validity of a statutory provision unless the person challenging the provision is
       directly affected by it or the unconstitutional feature is so pervasive as to render the entire
       statute invalid.” Morgan, 203 Ill. 2d at 482; People v. Palkes, 52 Ill. 2d 472, 480 (1972).

                                                 -10-
       “Generally, if there is no constitutional defect in the application of the statute to a litigant,
       that person does not have standing to argue that it would be unconstitutional if applied to
       third parties in hypothetical situations.” People v. Funches, 212 Ill. 2d 334, 346 (2004). In
       the absence of facts demonstrating an unconstitutional application of the statute, a person
       “may not challenge the statute on the ground that it might conceivably be applied
       unconstitutionally in some hypothetical case.” People v. Wisslead, 108 Ill. 2d 389, 397
       (1985). Rather, a person must be directly or materially affected by the attacked provision and
       must be in immediate danger of sustaining a direct injury as a result of enforcement of the
       challenged statute. People v. Rogers, 133 Ill. 2d 1, 8-9 (1989). “Standing is an element of
       justiciability, and it must be defined on a case-by-case basis.” People v. Greco, 204 Ill. 2d
       400, 409 (2003).
¶ 33        In the instant case, the State has filed a petition to revoke the stay of the adult sentence.
       Thus, we need not decide whether the filing of a petition to revoke is necessary in every case
       for a juvenile to have standing to challenge the constitutionality of section 5-810(6) of the
       EJJ statute. Further, we need not address the State’s contention that standing cannot arise
       until such a petition is actually granted because the respondent in the present case would lack
       standing even if the petition to revoke had been granted.
¶ 34        “A party may not raise a constitutional challenge to a provision of a statute that does not
       affect him or her.” In re Veronica C., 239 Ill. 2d 134, 147 (2010); People v. Malchow, 193
       Ill. 2d 413, 425 (2000); Rogers, 133 Ill. 2d at 15. However, that person may raise a
       constitutional objection to the other part where its invalidity will render the entire statute
       void. People v. Mayberry, 63 Ill. 2d 1, 6 (1976). The State notes in its brief that “the petition
       to revoke was based solely on respondent’s commission of a new felony offense” and that
       “[t]he State has never alleged that respondent violated any of the ‘conditions’ of his juvenile
       term.” Therefore, if the basis for the respondent’s challenge to the statute’s constitutionality
       does not pertain to the basis for the revocation of the adult sentence contained in the actual
       petition, respondent will not have standing.
¶ 35        In Veronica C., the juvenile defendant attacked the constitutionality, on separation of
       powers grounds, of the statute that prevented the juvenile defendant from being placed on
       supervision by the court without the consent of the State. This court found the juvenile
       defendant had no standing to make the constitutional claim, however, because her counsel’s
       failure to raise the possibility of supervision prior to the court’s finding of guilt meant that
       the juvenile defendant would not be entitled to supervision under the statute, regardless of
       whether the State’s Attorney objected at sentencing. We found that “[t]he State’s objection
       thereto during the phases that followed was irrelevant and thus did not adversely affect
       respondent.” Veronica C., 239 Ill. 2d at 147. We concluded that “respondent lacks standing
       to challenge the constitutionality of the statutory provision in question because she was not
       adversely affected by its operation.” Id. at 150.
¶ 36        We find the present case analogous to the situation presented in Veronica C. Even if the
       filing of the petition to revoke the stay on the adult sentence conferred standing on
       respondent to challenge the constitutional validity of the revocation provision of the EJJ
       statute, respondent’s constitutional objection must still pertain to the part of the statute that
       affects him. See id. at 147. The EJJ statute allows for two ways in which the stay of the adult

                                                 -11-
       sentence may be revoked: when the convicted minor “violate[s] the conditions of his or her
       sentence, or is alleged to have committed a new offense.” (Emphasis added.) 705 ILCS
       405/5-810(6) (West 2010). These are two separate provisions, albeit within the same
       statutory subsection. In fact, the subsection even provides that the court is to treat these two
       provisions differently in terms of executing the adult sentence. If the minor is found, by a
       preponderance of the evidence, to have committed a new offense, the court shall order
       execution of the previously imposed adult sentence, but if the minor is found to have
       committed a “violation” of his or her sentence “other than by a new offense, the court may
       order execution of the previously imposed adult criminal sentence or may continue him or
       her on the existing juvenile sentence with or without modifying or enlarging the conditions.”
       (Emphases added.) 705 ILCS 405/5-810(6) (West 2010). These are clearly two separate
       provisions. Respondent would be affected by the provision concerning a “new offense.”
       Respondent argues only that the term “conditions” is vague and makes no argument that the
       phrase “new offense” carries any vagueness. The basis for the constitutional challenge must
       pertain to the alleged basis for revoking respondent’s stayed adult sentence. We make no
       determination today whether a petition to revoke the stay must be granted or even filed to
       trigger standing, because respondent has made no showing that the alleged constitutional
       infirmity, the vagueness of the term “conditions,” pertains to the part of the statute that
       affects him. See Rogers, 133 Ill. 2d at 15. Therefore, we find that he has no standing to make
       such a constitutional challenge.

¶ 37                                     III. Apprendi Violation
¶ 38       Respondent next argues that the EJJ statute is unconstitutional because it violates his
       right to due process as articulated in Apprendi v. New Jersey, 530 U.S. 466 (2000), in that
       the facts that qualify the juvenile for EJJ prosecution are not required to be submitted to a
       jury for determination or proved beyond a reasonable doubt. The State counters that
       Apprendi does not apply to EJJ prosecutions, as the statute is dispositional, not adjudicatory,
       and that, even if Apprendi did apply, there is no Apprendi violation because the adult
       sentence imposed is determined only based on factors proven to a jury beyond a reasonable
       doubt.
¶ 39       Before addressing the merits of respondent’s Apprendi claim, we must first address the
       State’s forfeiture argument. The State argues that respondent has forfeited the Apprendi issue
       because he did not raise it in the trial court, appellate court, or in his petition for leave to
       appeal to this court. The first time respondent raised Apprendi was in his opening brief in this
       court. Indeed, failure to raise an issue in a petition for leave to appeal results in the forfeiture
       of that issue before this court. People v. McCarty, 223 Ill. 2d 109, 122 (2006). “However, as
       this court has noted in the past, a challenge to the constitutionality of a statute may be raised
       at any time.” Id. at 123. Therefore, we will address respondent’s Apprendi claim on the
       merits. Whether the EJJ statute violates Apprendi presents a question of law, which we will
       review de novo. People v. Hopkins, 201 Ill. 2d 26, 36 (2002).
¶ 40       In Apprendi, the United States Supreme Court “held a criminal defendant has the right
       to insist that any fact, other than the fact of a prior conviction, that increases his punishment


                                                  -12-
       beyond the statutory maximum ‘must be submitted to a jury, and proved beyond a reasonable
       doubt.’ ” Lucien v. Briley, 213 Ill. 2d 340, 344 (2004) (quoting Apprendi, 530 U.S. at 490).
       The Court addressed this issue again in Ring v. Arizona, 536 U.S. 584 (2002), where it
       “noted that the aggravating factors that allow imposition of the death penalty operate as ‘the
       functional equivalent of an element of a greater offense.’ ” People v. Adkins, 239 Ill. 2d 1,
       45 (2010) (quoting Ring, 536 U.S. at 609). The Court further developed its Apprendi doctrine
       in Blakely v. Washington, 542 U.S. 296 (2004). In Blakely, the defendant pleaded guilty to
       kidnapping. The facts admitted in the defendant’s plea, standing alone, supported a
       maximum sentence of 53 months, but, pursuant to state law, the trial court imposed a 90-
       month sentence after making a “judicial determination” that the defendant had acted with
       “deliberate cruelty.” Id. at 298. The State argued that there was no Apprendi violation
       because the relevant statutory maximum for a Class B felony like kidnapping was 10 years,
       far in excess of the 90-month sentence imposed by the trial court. The Court rejected this
       argument, holding:
               “ ‘[T]he statutory maximum’ for Apprendi purposes is the maximum sentence a
               judge may impose solely on the basis of the facts reflected in the jury verdict or
               admitted by the defendant. [Citations.] In other words, the relevant ‘statutory
               maximum’ is not the maximum sentence a judge may impose after finding additional
               facts, but the maximum he may impose without any additional findings. When a
               judge inflicts punishment that the jury’s verdict alone does not allow, the jury has not
               found all the facts ‘which the law makes essential to the punishment,’ [citation], and
               the judge exceeds his authority.” (Emphases in original.) Id. at 303-04.
¶ 41       The provision of the EJJ statute relating to respondent’s Apprendi argument states:
                   “(1)(a) If the State’s Attorney files a petition, at any time prior to commencement
               of the minor’s trial, to designate the proceeding as an extended jurisdiction juvenile
               prosecution and the petition alleges the commission by a minor 13 years of age or
               older of any offense which would be a felony if committed by an adult, and, if the
               juvenile judge assigned to hear and determine petitions to designate the proceeding
               as an extended jurisdiction juvenile prosecution determines that there is probable
               cause to believe that the allegations in the petition and motion are true, there is a
               rebuttable presumption that the proceeding shall be designated as an extended
               jurisdiction juvenile proceeding.
                   (b) The judge shall enter an order designating the proceeding as an extended
               jurisdiction juvenile proceeding unless the judge makes a finding based on clear and
               convincing evidence that sentencing under the Chapter V of the Unified Code of
               Corrections would not be appropriate for the minor based on an evaluation of the
               following factors:
                       (i) the age of the minor;
                       (ii) the history of the minor, including:
                            (A) any previous delinquent or criminal history of the minor,
                            (B) any previous abuse or neglect history of the minor, and
                            (C) any mental health, physical and/or educational history of the minor;

                                                -13-
                        (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.
                    In considering these factors, the court shall give greater weight to the seriousness
                of the alleged offense and the minor’s prior record of delinquency than to other
                factors listed in this subsection.” 705 ILCS 405/5-810(1) (West 2008).
¶ 42        In determining whether there is probable cause to believe the allegations in the State’s
       motion, the juvenile court judge may receive information by way of proffer. This information
       is to be based on reliable information provided by the State or the minor, and all evidence
       is admissible if it is relevant and reliable, regardless of whether it would be admissible under
       the rules of evidence. 705 ILCS 405/5-810(2) (West 2008). However, unlike in non-EJJ
       juvenile cases, “[a] minor who is [the] subject of an [EJJ] prosecution has the right to trial
       by jury” and “[a]ny trial under this Section shall be open to the public.” 705 ILCS 405/5-
       810(3) (West 2008). If the juvenile defendant pleads guilty, or is found guilty at trial by a
       judge or jury, the court imposes both a juvenile sentence pursuant to section 5-710 of the
       Juvenile Court Act and “an adult criminal sentence in accordance with the provisions of
       Chapter V of the Unified Code of Corrections, the execution of which shall be stayed on the
       condition that the offender not violate the provisions of the juvenile sentence.” 705 ILCS
       405/5-810(4) (West 2008).
¶ 43        Our appellate court has been uniform in holding that the EJJ statute does not violate
       Apprendi. In re Christopher K., 217 Ill. 2d 348, 363 (2005); see In re Omar M., 2012 IL App
       (1st) 100866, ¶¶ 48-65; In re Christopher K., 348 Ill. App. 3d 130, 143 (2004); In re J.W.,
       346 Ill. App. 3d 1, 10-12 (2004); In re Matthew M., 335 Ill. App. 3d 276, 289 (2002). The
       appellate cases found that Apprendi did not apply to the EJJ statute because the EJJ statute
       was not an adjudicatory statute, but rather a dispositional one, in that “it does not determine
       a respondent’s guilt or the specific sentence.” Omar M., 2012 IL App (1st) 100866, ¶ 59;
       J.W., 346 Ill. App. 3d at 11-12 (finding EJJ statute does not violate Apprendi because it did

                                                 -14-
       not modify or change the elements of the crime the juvenile defendant was charged with,
       convicted of, and sentenced under); Matthew M., 335 Ill. App. 3d at 289 (an EJJ prosecution
       is like a transfer to adult court under section 5-805(2) and requires the trial court to make a
       procedural determination as to whether a juvenile should receive an adult sentence; the only
       difference is under the EJJ prosecution the adult sentence is stayed pending successful
       completion of the juvenile sentence; and because a trial court’s designation of a case as an
       EJJ prosecution does not adjudicate guilt, due process would not require a jury to make such
       a procedural determination).
¶ 44        We agree with the reasoning put forth by our appellate court. The Apprendi decision
       requires that “any fact that increases the penalty for a crime beyond the prescribed statutory
       maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi,
       530 U.S. at 490. Nothing in the EJJ statute runs afoul of Apprendi. An EJJ designation
       merely assigns the case a status of being serious enough that an adult sentence can be
       imposed if the juvenile defendant pleads or is found guilty. There is nothing in the EJJ statute
       that allows a defendant to be sentenced above the statutory maximum based on factors not
       proven to a trier of fact beyond a reasonable doubt. The statute even provides that, unlike in
       other juvenile cases, a defendant is eligible to have his or her case determined by a jury. 705
       ILCS 405/5-810(3) (West 2008). The judge merely determines, in relation to the EJJ
       designation, whether the case qualifies for the EJJ. The adjudicatory determination of guilt
       is made by the trier of fact, who must determine whether the State has proven the required
       elements of the offense beyond a reasonable doubt. When the trial judge imposes the adult
       sentence following the determination of guilt, he only does so in accordance and pursuant
       to the Unified Code of Corrections. 705 ILCS 405/5-810(4) (West 2008). Whatever stayed
       adult sentence is imposed on the juvenile defendant is based on the criminal offense for
       which the juvenile was convicted by the finder of fact. The length of the sentence is only
       determined after the trial at the standard sentencing hearing and is based on the crime for
       which the juvenile defendant was convicted beyond a reasonable doubt by the trier of fact.
       The EJJ statute decides which forum will hear a juvenile defendant’s case, but it does not
       determine a juvenile defendant’s guilt or the specific sentence. Omar M., 2012 IL App (1st)
       100866, ¶ 58.
¶ 45        Respondent contends that cases such as Matthew M. and J.W. are outdated because they
       came out before the United States Supreme Court’s decision in Blakely. Respondent argues
       that Blakely shows the “true teaching of Apprendi and its progeny is that due process is
       violated when an accused receives a sentence in excess of that which he could have received
       based on the fact finder’s verdict alone” and that since respondent’s 23-year sentence was
       in excess of the juvenile sentence, the facts which increased his punishment were required
       to be submitted to a jury and proved beyond a reasonable doubt.
¶ 46        We disagree that the EJJ statute is unconstitutional under Blakely. We have already held
       that the EJJ statute is dispositional, not adjudicatory, in nature. However, even if we were
       to apply Blakely and Apprendi to the EJJ statute, there is still no violation. Respondent cites
       to the fact that the 23-year sentence was in excess of the authorized juvenile sentence.
       However, for the purposes of Apprendi, the statutory maximum is not the juvenile sentence
       under the Juvenile Court Act, but rather the maximum sentence allowed by the offense

                                                -15-
       committed. Omar M., 2012 IL App (1st) 100866, ¶ 63. Juveniles have neither a common law
       nor a constitutional right to adjudication under the Juvenile Court Act. People v. P.H., 145
       Ill. 2d 209, 223 (1991). The Juvenile Court Act “is a purely statutory creature whose
       parameters and application are defined solely by the legislature.” Id. Thus, a juvenile hearing
       is not a matter of right, and the maximum sentence that could be imposed, based on the facts
       adduced at respondent’s trial, was that authorized by the Unified Code of Corrections for the
       offense committed. See J.W., 346 Ill. App. 3d at 11. In this case, respondent waived his right
       to a jury trial and was tried by the court, and found guilty beyond a reasonable doubt of,
       among other offenses, two counts of aggravated discharge of a firearm in the direction of a
       person the respondent knew to be a police officer. 720 ILCS 5/24-1.2(a)(3) (West 2008). A
       violation of section 24-1.2(a)(3) is a Class X felony, for which the sentence is between 10
       and 45 years in the IDOC. 720 ILCS 5/24-1.2(b) (West 2008). The court found every element
       for the statutory sentence beyond a reasonable doubt and sentenced respondent to a total of
       23 years, within the statutory range of the criminal offense committed by respondent. See
       Omar M., 2012 IL App (1st) 100866, ¶ 64. Apprendi does not apply to the EJJ statute, and,
       even if it did, the statute would not be in violation of Apprendi’s holding.
¶ 47        Further, the United States Supreme Court has cautioned about extending Apprendi to
       areas that have been the historic domain of the states. Oregon v. Ice, 555 U.S. 160, 170-71
       (2009) (“States’ interest in the development of their penal systems, and their historic
       dominion in this area, also counsel against the extension of Apprendi that [defendant]
       requests. Beyond question, the authority of States over the administration of their criminal
       justice system lies at the core of their sovereign status. [Citation.] We have long recognized
       the role of the States as laboratories for devising solutions to difficult legal problems.”). In
       the area of juvenile law, “[t]he Supreme Court has traditionally given states wider latitude
       in adopting particular trial and sentencing procedures for juveniles—including whether to
       have a jury trial at all.” State v. Rudy B., 243 P.3d 726, 735 (N.M. 2010) (citing McKeiver
       v. Pennsylvania, 403 U.S. 528, 550 (1971) (plurality op.) (holding that the right to a jury trial
       does not apply to juvenile proceedings)). A number of our sister states have rejected the
       application of Apprendi to juvenile court and sentencing schemes. See Rudy B., 243 P.3d at
       740 (holding that applying Apprendi to New Mexico’s posttrial determination of whether a
       juvenile should receive an adult or juvenile sentence, based on factors found by the judge
       after a trial, “would interfere unnecessarily with New Mexico’s traditional discretion in
       administering a system of juvenile justice”); State v. Read, 938 A.2d 953, 960 (N.J. 2008)
       (holding that the mere fact that a judge’s determination of whether a juvenile’s case should
       be tried in juvenile or adult court “can impact the length of a potential sentence does not
       convert that decision into a part of the sentencing process which under Apprendi and Blakely
       requires jury fact-finding beyond a reasonable doubt. This conclusion is supported by the
       decisions of every federal and state court that has considered the issue. [Citations.]”). While
       certainly possible that a state’s juvenile court and sentencing system could violate Apprendi,
       the governing trend appears to recommend great caution when applying Apprendi in the
       juvenile court realm.
¶ 48        Therefore, we conclude that Apprendi does not apply to the EJJ statute, as it is
       dispositional, not adjudicatory, in nature. However, even if we were to apply Apprendi, the

                                                 -16-
       EJJ statute would not be unconstitutional, because the juvenile defendant’s actual adult
       sentence is determined based on the charged offenses being found by the trier of fact to have
       been proven beyond a reasonable doubt. Further, any extension of Apprendi to areas that
       have been the historic domain of the states, such as administration of juvenile justice, should
       be treated cautiously. The EJJ statute is not unconstitutional under Apprendi.

¶ 49                                      CONCLUSION
¶ 50       The requirement that the court hold a hearing on the State’s EJJ prosecution-designation
       petition within 60 days of the petition’s filing is directory. Therefore, the court’s failure to
       hold a hearing within the 60-day requirement does not void the stayed adult sentence.
       Further, respondent does not have standing to challenge the EJJ statute as unconstitutionally
       vague. Finally, the EJJ statute does not violate due process under the United States Supreme
       Court’s decision in Apprendi. For the foregoing reasons, the judgment of the appellate court
       is affirmed.

¶ 51      Affirmed.




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