                                  Illinois Official Reports

                                          Appellate Court



                             In re Antoine B., 2014 IL App (3d) 110467-B




Appellate Court              In re ANTOINE B., a Minor (The People of the State of Illinois,
Caption                      Petitioner-Appellee, v. Antoine B., Respondent-Appellant).



District & No.               Third District
                             Docket No. 3-11-0467



Filed                        February 4, 2014
Modified upon
denial of rehearing          March 13, 2014



Held                         Respondent’s juvenile adjudications for felony theft based on his prior
(Note: This syllabus         juvenile adjudication for theft were not void, but should be reduced to
constitutes no part of the   misdemeanor theft adjudications and his commitment to the
opinion of the court but     Department of Juvenile Justice was remanded for a new dispositional
has been prepared by the     hearing to determine the appropriate disposition based on the
Reporter of Decisions        commission of two charges of misdemeanor theft.
for the convenience of
the reader.)



Decision Under               Appeal from the Circuit Court of Peoria County, No. 11-JD-96; the
Review                       Hon. Chris L. Fredericksen, Judge, presiding.




Judgment                     Vacated in part and remanded with directions.
     Counsel on               Lawrence J. O’Neill, of State Appellate Defender’s Office, of Mount
     Appeal                   Vernon, for appellant.

                              Jerry Brady, State’s Attorney, of Peoria (Judith Z. Kelly, of State’s
                              Attorneys Appellate Prosecutor’s Office, of counsel), for the People.


     Panel                    JUSTICE CARTER delivered the judgment of the court, with opinion.
                              Justices Holdridge and Wright concurred in the judgment and opinion.


                                               OPINION

¶1         Respondent, Antoine B., was adjudicated delinquent for two counts of felony theft (720
       ILCS 5/16-1(a)(1)(A), (b)(2) (West 2010)) and committed to the Department of Juvenile
       Justice (DOJJ) for an indeterminate term not to exceed three years. Respondent appealed,
       arguing that the commitment to the DOJJ was excessive. We affirmed the trial court’s
       judgment. In re Antoine B., 2013 IL App (3d) 110467-U, ¶¶ 14, 17. Pursuant to a supervisory
       order from the supreme court, we subsequently withdrew our decision and directed the parties
       to file supplemental briefing on the issue of whether respondent’s felony adjudications were
       void under the supreme court’s decision in People v. Taylor, 221 Ill. 2d 157, 182 (2006), which
       held that a prior felony juvenile adjudication was not a prior felony conviction for purposes of
       the escape statute. In re Antoine B., No. 116538 (Ill. Oct. 2, 2013). Upon consideration of the
       supplemental briefing, we find that: (1) respondent’s current juvenile adjudications for felony
       theft are not void but should be reduced to misdemeanor theft adjudications; (2) the
       dispositional order committing respondent to the DOJJ is not an authorized disposition for
       misdemeanor offenses and is void; and (3) this case should be remanded so that the previous
       orders may be amended in the trial court to indicate that respondent was adjudicated delinquent
       for two counts of misdemeanor theft and so that the trial court may conduct a new dispositional
       hearing to determine the appropriate disposition for respondent based upon the two charges of
       misdemeanor theft. Therefore, we vacate the trial court’s commitment order and remand this
       case with directions for further proceedings.

¶2                                                 FACTS
¶3         In March 2011, a juvenile delinquency petition was filed charging the then-14-year-old
       respondent with two counts of Class 4 felony theft for stealing two bicycle lights. The charges
       were elevated to felonies because respondent had a prior juvenile delinquency adjudication for
       theft (see 720 ILCS 5/16-1(b)(2) (West 2010)). At a plea hearing, respondent admitted the
       allegations of the petition and was adjudicated delinquent. Following a dispositional hearing,
       respondent was committed to the DOJJ for an indeterminate term not to exceed three years. He
       filed a direct appeal, alleging that the commitment to the DOJJ was excessive. We affirmed the
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     trial court’s judgment. Antoine B., 2013 IL App (3d) 110467-U, ¶¶ 14, 17. Respondent
     subsequently filed a motion asking this court to withdraw its decision and to allow
     supplemental briefing. In that motion, respondent alleged for the first time that his felony theft
     adjudications were void pursuant to Taylor. We denied respondent’s motion. Respondent filed
     a petition for leave to appeal (PLA) to the supreme court. The supreme court denied
     respondent’s PLA but entered a supervisory order directing this court to allow the
     supplemental briefing on the Taylor issue. We withdrew our decision and directed the parties
     to file the supplemental briefing.

¶4                                              ANALYSIS
¶5       In his supplemental briefing, respondent argues that his juvenile delinquency adjudications
     for felony theft are void and that they should be vacated outright. Respondent asserts that the
     two theft charges in the instant case were elevated from misdemeanors to felonies based upon
     his prior juvenile adjudication for theft, which was used as an element of the current offenses,
     and that under Taylor and the rules of statutory construction, such an enhancement is
     impermissible because a prior adjudication for theft does not constitute a prior conviction for
     purposes of section 16-1(b)(2) of the theft statute (720 ILCS 5/16-1(b)(2) (West 2010)). The
     State agrees that a prior juvenile adjudication for theft does not constitute a prior conviction for
     purposes of section 16-1(b)(2) but argues, nevertheless, that respondent’s two theft
     adjudications are not void and should merely be reduced to misdemeanor theft adjudications,
     rather than vacated outright. The State asserts that the theft adjudications are not void because
     a prior theft conviction (the prior adjudication in this case) was not an element of the two theft
     offenses but, rather, was used only to elevate the two charges from misdemeanors to felonies.
¶6       Issues of statutory construction, such as the one in the present case, are subject to de novo
     review on appeal. People v. Baskerville, 2012 IL 111056, ¶ 18. The fundamental rule of
     statutory construction is to ascertain and give effect to the intent of the legislature. Id. The most
     reliable indicator of that intent is the plain and ordinary meaning of the language of the statute
     itself. Id. In determining the plain meaning of statutory terms, a court should consider the
     statute in its entirety and keep in mind the subject the statute addresses and the apparent intent
     of the legislature in enacting the statute. Id.; 5 ILCS 70/1.01 (West 2010). In addition, if the
     statute is a criminal or penal one, it must be strictly construed in favor of the defendant. People
     ex rel. Gibson v. Cannon, 65 Ill. 2d 366, 370-71 (1976). When the language of a statute is clear
     and unambiguous, the statute must be applied as written, without resorting to further aids of
     statutory construction. People v. Dabbs, 239 Ill. 2d 277, 287 (2010). A court may not depart
     from the plain language of the statute and read into it exceptions, limitations, or conditions that
     are not consistent with the express legislative intent. Baskerville, 2012 IL 111056, ¶ 18.
     However, if the language of a statute is ambiguous in that it is susceptible to more than one
     reasonable interpretation, a court may consider extrinsic aids to determine the meaning of the
     statutory language. See Williams v. Illinois State Scholarship Comm’n, 139 Ill. 2d 24, 51
     (1990).
¶7       The theft statute in effect at the time that the offenses in the instant case were committed
     provided, in relevant part, as follows:
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             “(b) Sentence.
                                                    ***
                   (2) A person who has been convicted of theft of property not from the person and
              not exceeding $500 in value who has been previously convicted of any type of theft ***
              is guilty of a Class 4 felony. When a person has any such prior conviction, the
              information or indictment charging that person shall state such prior conviction so as to
              give notice of the State’s intention to treat the charge as a felony. The fact of such prior
              conviction is not an element of the offense and may not be disclosed to the jury during
              trial unless otherwise permitted by issues properly raised during such trial.” 720 ILCS
              5/16-1(b)(2) (West 2010).
     The question in this case is whether, as a matter of statutory construction, respondent’s prior
     juvenile adjudication for theft constitutes a prior theft conviction for purposes of section
     16-1(b)(2) that would allow for the elevation of the current theft charges from misdemeanor to
     felony theft charges.
¶8       Our supreme court considered a similar issue in Taylor. See Taylor, 221 Ill. 2d at 159. In
     the Taylor case, a 16-year-old defendant was charged with attempted escape (720 ILCS
     5/31-6(a) (West 1998)) and certain other related offenses for escaping from his cell at a
     juvenile temporary detention center in Cook County. Taylor, 221 Ill. 2d at 159-60. The
     defendant’s case was transferred to adult court. Id. One of the elements of the attempted escape
     charge that the State had to prove was that at the time of the attempted escape, the defendant
     was a person who had been convicted of a felony. Id. at 160-61, 163. To prove that element, the
     State presented evidence that the defendant had been previously adjudicated delinquent for
     robbery and had been committed to the juvenile division of the Department of Corrections and
     was awaiting transfer to a facility when the escape occurred. Id. at 160. After the defendant was
     convicted of attempted escape and sentenced, he appealed. Id. The appellate court reversed
     defendant’s conviction, concluding that the defendant’s prior felony juvenile delinquency
     adjudication was not a prior felony conviction for purposes of the escape statute. Id. at 160-61.
     On appeal from the State, the supreme court found that because of the differences involved in a
     juvenile proceeding and an adult proceeding and because of the safeguards necessary before an
     adult may be convicted of a felony, a prior juvenile delinquency adjudication for a felony
     offense did not constitute a prior felony conviction for purposes of the escape statute. Id. at
     163-82.
¶9       In the present case, however, unlike in Taylor, a prior conviction is not an element of the
     two theft offenses of which respondent was adjudicated delinquent. See 720 ILCS 5/16-1(b)(2)
     (West 2010); Illinois Pattern Jury Instructions, Criminal, No. 13.05, Committee Note (4th ed.
     2000). In fact, the theft statute specifically indicates that the prior conviction is not an element
     of the offense. See 720 ILCS 5/16-1(b)(2) (West 2010). Thus, while we recognize the
     similarities between Taylor and the instant case, we do not believe that Taylor controls here or
     that it requires that respondent’s current adjudications be found void. Rather, we believe that
     the appropriate result is for the juvenile adjudications to be reduced from felony theft offenses
     to misdemeanor theft offenses. See People v. Kelly, 66 Ill. App. 2d 204, 208-12 (1965) (where
     the value of the stolen property in a theft case was not proven to be over $150 and the value was
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       not, at that time, an element of the offense but, rather, was only determinative of the proper
       range of punishment, the appropriate remedy was for the court to reduce the punishment
       involved to a level appropriate for a theft in which the value of the stolen property did not
       exceed $150). Therefore, we remand this case for the trial court to amend its prior orders to
       reflect that respondent has been adjudicated delinquent for two counts of misdemeanor theft in
       the instant case, rather than two counts of felony theft. The trial court is also required to vacate
       its dispositional order committing respondent to the DOJJ and to hold a new dispositional
       hearing to determine the appropriate disposition for respondent in this case based upon the two
       misdemeanor theft charges.

¶ 10                                         CONCLUSION
¶ 11       For the foregoing reasons, the judgment of the circuit court of Peoria County is vacated in
       part and the case is remanded with directions.

¶ 12      Vacated in part and remanded with directions.




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