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                               Illinois Official Reports                         Reporter of Decisions
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                                      Appellate Court                            Date: 2016.12.08
                                                                                 10:08:50 -06'00'




                         People v. Patterson, 2016 IL App (1st) 101573-B



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



District & No.            First District, Second Division
                          Docket No. 1-10-1573


Filed                     June 21, 2016
Rehearing denied          October 27, 2016
Modified opinion filed    November 1, 2016



Decision Under            Appeal from the Circuit Court of Cook County, No. 09-CR-1455; the
Review                    Hon. Ellen Mandeltort, Judge, presiding.



Judgment                  Convictions affirmed; sentence vacated; cause remanded.



Counsel on                Michael J. Pelletier, Patricia Mysza, and Christopher Kopacz, all of
Appeal                    State Appellate Defender’s Office, of Chicago, for appellant.

                          Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                          Brian K. Hodes, and Miles J. Keleher, Assistant State’s Attorneys, of
                          counsel), for the People.



Panel                     JUSTICE NEVILLE delivered the judgment of the court, with
                          opinion.
                          Justices Pierce and Simon concurred in the judgment and opinion.
                                              OPINION

¶1       A jury found Ronald Patterson guilty of aggravated criminal sexual assault, an offense
     committed when he was 15 years old. The trial court sentenced Patterson, under statutes for the
     sentencing of adult offenders, to 36 years in prison. Our supreme court has affirmed the
     conviction and remanded the case to this court for consideration of sentencing issues. We now
     vacate the sentence and remand the case to juvenile court for further proceedings.

¶2                                         BACKGROUND
¶3       Police arrested Patterson on December 14, 2008, in his home at a facility run by
     Streamwood Behavioral Health Systems (SBHS). A grand jury charged Patterson with three
     counts of aggravated criminal sexual assault. The Juvenile Court Act of 1987 required the
     transfer of the case to criminal court for the trial of Patterson as an adult. 705 ILCS
     405/5-130(1) (West 2008). A jury found Patterson guilty as charged.
¶4       The presentence investigation report said that Patterson tested positive for cocaine at birth.
     A relative of Patterson’s mother adopted him at 18 months of age, and he grew up with his
     adoptive parents until they found they could not protect his siblings from his increasingly
     violent behavior. He had extensive psychiatric treatment from the time he turned 11. The
     Department of Children and Family Services took custody of Patterson, at his adoptive
     parents’ request, in 2006, when he was 13. He took Thorazine, Benadryl, Prozac, Trileptal, and
     Abilify, amongst other medications, to try to control his aggressive behavior and his moods.
     An IQ test in 2006 resulted in a full-scale score of 72.
¶5       School records and records from SBHS showed that Patterson acted somewhat violently on
     numerous occasions. He threw hot water on a teacher in 2004, tried to bite SBHS staff
     members when they restrained him in 2006, threatened to stab a staff member in 2006, and
     stabbed a staff member with a pencil in 2008. The behaviors led to some loss of privileges at
     SBHS and other discipline. Records also showed that at times SBHS rewarded Patterson for
     extended periods of good behavior.
¶6       The presentence investigator said in his report that Patterson had no prior police contacts.
     According to a printout from the police department, Patterson had one prior arrest, for
     throwing hot water on a teacher when he was 11, and the arrest resulted in a station adjustment.
¶7       The trial court found several factors in aggravation, and none in mitigation, so the court
     sentenced Patterson to 12 years in prison on each count, with the sentences to run
     consecutively, for a total sentence of 36 years. Patterson appealed.
¶8       The appellate court reversed the convictions and remanded for retrial. People v. Patterson,
     2012 IL App (1st) 101573. The supreme court reversed the appellate court’s judgment and
     rejected all of Patterson’s arguments for a new trial. People v. Patterson, 2014 IL 115102. The
     supreme court remanded the case to this court for consideration of the sentencing issues
     Patterson raised in his appeal, which this court found no need to consider on the initial appeal
     due to the decision to remand for a new trial. Patterson, 2014 IL 115102, ¶ 127.
¶9       After the supreme court filed its opinion, but before the parties finished briefing the appeal
     on remand, the general assembly amended the Juvenile Court Act, changing the provision that
     required the juvenile court to transfer the case to criminal court for the State to prosecute
     Patterson as an adult. Patterson now asks us to remand the case to the juvenile court for

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       resentencing, in accord with the amended statute.

¶ 10                                             ANALYSIS
¶ 11        In 2008, when Patterson committed the offense, section 5-130 of the Juvenile Court Act
       provided:
                “The definition of delinquent minor under Section 5-120 of this Article shall not apply
                to any minor who at the time of an offense was at least 15 years of age and who is
                charged with *** aggravated criminal sexual assault ***.
                    These charges and all other charges arising out of the same incident shall be
                prosecuted under the criminal laws of this State.” 705 ILCS 405/5-130(1)(a) (West
                2008).
¶ 12        Thus, section 5-130 of the Juvenile Court Act required prosecution of Patterson under
       Illinois’s criminal laws. The general assembly adopted Public Act 99-258 in 2015, changing
       the Juvenile Court Act to make the minimum age for mandatory transfer 16, not 15. The Public
       Act includes no explicit provision establishing the effective date for the change to section
       5-130. Pub. Act 99-258 (eff. Jan. 1, 2016) (amending 705 ILCS 405/5-130(1)(a) (West 2014)).
¶ 13        Public Act 99-258 also amended section 5-805 of the Juvenile Court Act, concerning the
       discretionary transfer of jurisdiction from juvenile court to criminal court. As amended, the
       section provides that if the State files a motion for a transfer to criminal court of a case against
       a minor at least 13 years old, and the juvenile court finds that the prosecution of the minor
       under criminal law would best serve the interests of the public, the court may transfer the case
       to the criminal courts. 705 ILCS 405/5-805(3)(a) (West 2014). The Effective Date of Laws Act
       established January 1, 2016, as the effective date of Public Act 99-258, because Public Act
       99-258 does not expressly state its effective date. Pub. Act 99-258 (eff. Jan. 1, 2016); 5 ILCS
       75/1 (West 2014).
¶ 14        Public Act 99-258 includes a provision expressly limiting the retroactive application of the
       amendment to section 5-805. The Public Act states, “The changes made to this Section [5-805]
       by this amendatory Act *** apply to a minor who has been taken into custody on or after the
       effective date of this amendatory Act ***.” Pub. Act 99-258 (eff. Jan. 1, 2016) (amending 705
       ILCS 405/5-130(1)(a) (West 2014)). Public Act 99-258 does not include any express statement
       concerning the retroactive application of the amendment to section 5-130. Our supreme court,
       in Caveney v. Bower, 207 Ill. 2d 82 (2003), found that, by adopting section 4 of the Statute on
       Statutes (5 ILCS 70/4 (West 2014)), “the legislature has clearly indicated the ‘temporal reach’
       of every amended statute.” (Emphasis in original.) Caveney, 207 Ill. 2d at 92. “[S]ection 4
       represents a clear legislative directive as to the temporal reach of statutory amendments and
       repeals: those that are procedural in nature may be applied retroactively, while those that are
       substantive may not.” Caveney, 207 Ill. 2d at 92.
¶ 15        Because the legislature included no express provision concerning retroactive application of
       the amendment to section 5-130, under Caveney, we must determine whether the amendment
       makes a substantive or procedural change to the Juvenile Court Act. See People v. Bethel, 2012
       IL App (5th) 100330, ¶ 15. The State claims that the amendment operates substantively to
       reduce sentences. But the State has successfully argued, in this case as well as others, that
       despite their effect on sentences, the parts of the Juvenile Court Act governing the transfer of
       cases to the criminal courts count as procedural provisions. Patterson, 2014 IL 115102,


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       ¶¶ 104-05; In re M.C., 319 Ill. App. 3d 713, 719 (2001); People v. Pena, 321 Ill. App. 3d 538,
       543-44 (2001). The procedural provisions that operated to increase sentences did not become
       substantive when an amendment made them work to reduce sentences.
¶ 16        The State argues that the legislature implicitly intended prospective application for the
       amendment, as the amended statute has an effective date in 2016, well after the legislature
       passed the amendment in 2015. But the Statute on Statutes controls exactly this situation,
       where the legislature makes no explicit statement regarding retroactive application of an
       amendment. See People v. Glisson, 202 Ill. 2d 499, 506-07 (2002).
¶ 17        The State claims that the decision in People v. Brown, 225 Ill. 2d 188 (2007), requires a
       finding that the amendment here operates only prospectively. But the statute at issue in Brown,
       unlike section 5-130 here, included an express provision concerning its effective date. Because
       the legislature expressly delayed implementation of the statute, the Brown court found that the
       legislature intended the statute not to apply retroactively. Brown, 225 Ill. 2d at 201. Here, the
       legislature set no explicit effective date, so the Effective Date of Laws Act set its effective date,
       and the Statute on Statutes governed its retroactivity. Under the Statute on Statutes, the
       procedural amendment applies retroactively to all cases pending on direct appeal. Caveney,
       207 Ill. 2d at 92; Glisson, 202 Ill. 2d at 506-07; People v. Hauschild, 226 Ill. 2d 63, 77-78
       (2007).
¶ 18        Finally, the State cites the Synopsis for House Bill 3718, which became Public Act 99-258,
       where the Synopsis states that the bill “[p]rovides that the amendatory changes to the transfer
       of jurisdiction provisions are prospective.” I Final Legislative Synopsis and Digest of the 99th
       Ill. Gen. Assem. (No. 16), at 2351. That part of the synopsis accurately describes the effect of
       the amendment to section 5-805(7), which makes the amendment to section 5-805 operate
       prospectively. The synopsis does not alter the absence of any similar provision concerning the
       amendment to section 5-130, which governs the transfer of Patterson’s case to criminal court.
       Because the case comes before us on direct appeal, the procedural amendment to section
       5-130, concerning mandatory transfers to criminal court, governs this case. See Glisson, 202
       Ill. 2d at 506-07.
¶ 19        The amended provisions for discretionary transfer to criminal court would apply here only
       if the State took Patterson into custody after January 1, 2016, the effective date of Public Act
       99-258. Pub. Act 99-258 (eff. Jan. 1, 2016) (amending 705 ILCS 405/5-130(1)(a) (West
       2014)). The version of section 5-805 in effect in 2008, which governs the prosecution of
       Patterson, provided:
                “If the State’s Attorney files a petition, at any time prior to commencement of the
                minor’s trial, to permit prosecution under the criminal laws and the petition alleges the
                commission by a minor 15 years of age or older of: (i) a Class X felony other than
                armed violence *** and, if the juvenile judge assigned to hear and determine motions
                to transfer a case for prosecution in the criminal court 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 minor is not a fit and proper subject to be dealt with
                under the Juvenile Justice Reform Provisions of 1998 *** and that, except as provided
                in paragraph (b), the case should be transferred to the criminal court.” 705 ILCS
                405/5-805(2)(a) (West 2008).
¶ 20        The State did not file the motion required by section 5-805(2)(a) prior to trial. However,
       under the circumstances of this case, because the law in effect at the time of the arrest and trial

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       did not require the filing of a motion to transfer, instead providing for automatic transfer of the
       case to criminal court, we find that we should permit the State on remand to exercise its
       discretion and file the requisite motion if it chooses to request a hearing under the provisions of
       section 5-805(2)(b). 705 ILCS 405/5-805(2)(b) (West 2008). In effect, we treat the case like
       People v. Clark, 119 Ill. 2d 1 (1987). In Clark, the juvenile court transferred a case against a
       minor to the criminal court, and our supreme court found that the transfer hearing did not
       accord with the requirements of the Juvenile Court Act. The Clark court remanded the case to
       the juvenile court for a new transfer hearing. Clark, 119 Ill. 2d at 16-20.
¶ 21       Now that the amendment makes the automatic transfer provision from 2008 inapplicable to
       Patterson’s case, the Juvenile Court Act requires a hearing before the transfer to the criminal
       court of a case of Class X felony charges against a 15-year-old minor. 705 ILCS 405/5-805
       (West 2008). Patterson had no such hearing. We vacate Patterson’s sentence and remand the
       case to the juvenile court to permit the State to file a motion for transfer of the case to criminal
       court for sentencing. If the State files such a motion, the juvenile court should hold a transfer
       hearing in accord with the procedures and standards established in the 2008 version of the
       Juvenile Court Act of 1987. 705 ILCS 405/5-805(2)(b) (West 2008). Regardless of whether the
       juvenile court or the criminal court sentences Patterson, the sentencing court should take into
       account the reasoning of Roper v. Simmons, 543 U.S. 551 (2005), Graham v. Florida, 560 U.S.
       48 (2010), and Miller v. Alabama, 567 U.S. ___, 132 S. Ct. 2455 (2012), concerning
       punishment of juveniles.

¶ 22                                        Petition for Rehearing
¶ 23       The State filed a petition for rehearing, raising two new arguments for affirming the trial
       court’s judgment. First, the State contends that we lacked jurisdiction to enter the order we
       entered because we failed to obey the supreme court’s mandate. We address the new argument
       on its merits because it pertains to our jurisdiction. See In re M.W., 232 Ill. 2d 408, 414 (2009).
¶ 24       Generally, when a higher court issues a mandate, the lower court must enter a judgment
       that complies exactly with the higher court’s order. See People ex rel. Daley v. Schreier, 92 Ill.
       2d 271, 276-77 (1982). However, the general rule does not apply when the legislature amends
       a statute, in a manner that affects the case, between the date of the mandate and the date of the
       lower court’s reconsideration of the case. Banco Nacional de Cuba v. Farr, 383 F.2d 166 (2d
       Cir. 1967).
¶ 25       In Banco Nacional, the United States Court of Appeals for the Second Circuit needed to
       decide whether the United States Supreme Court’s mandate precluded the court of appeals
       from applying a newly amended statute. The Banco Nacional court said:
                    “The Supreme Court mandate rule is nothing more than one specific application of
               a general doctrine appellate courts apply to their orders to lower courts, a doctrine
               commonly referred to as the law of the case ***. *** [A] lower court is not bound to
               follow the mandate of an appellate court if the mandate is, in the interim, affected by an
               authority superior to the court issuing the mandate, such as by a higher appellate court,
               either state or federal ***. *** The same principle should apply here; any limiting
               language in the Supreme Court mandate should not preclude judicial application of the
               Amendment in this case for the rule of law expressed by the mandate has been affected
               by a subsequently enacted federal statute.” Banco Nacional, 383 F.2d at 178.
       See Jordan v. Jordan, 643 P.2d 1008, 1012-13 (Ariz. 1982).

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¶ 26       Following Banco Nacional, we find that this court needed to determine whether the
       amendment to section 5-130 applied to this case.
¶ 27       Next, the State argues that we should adopt the reasoning of People v. Hunter, 2016 IL App
       (1st) 141904, issued after we filed our initial order on remand in this case. The Hunter court
       said that courts should not apply procedural statutes retroactively if the retroactive application
       would affect a party’s vested rights. Hunter, 2016 IL App (1st) 141904, ¶ 72; see People v.
       One 1998 GMC, 2011 IL 110236, ¶ 69. Although the State in its initial brief on remand raised
       no argument concerning vested rights, we choose to address the new argument on its merits
       because of the conflict between our ruling and the ruling in Hunter.
¶ 28       Hunter involved a juvenile automatically transferred to criminal court for trial, who argued
       on direct review of his conviction that the amendment to section 5-130 should apply to the
       charges against him. The Hunter court held that the State had a vested right to have Hunter
       sentenced as an adult, because “[a]pplying the amended language retroactively to this case
       would either require the State to file new petitions seeking criminal prosecution and sentencing
       on remand, or would result in significant legal consequences for its failure to have done so
       previously.” Hunter, 2016 IL App (1st) 141904, ¶ 73.
¶ 29       Another panel of the appellate court, in People v. Ortiz, 2016 IL App (1st) 133294,
       addressed the conflict between our opinion and Hunter. The Ortiz court explained that under
       the reasoning of Caveney, 207 Ill. 2d at 92-95, and Glisson, 202 Ill. 2d at 505-07, courts need
       not conduct a retroactive impact analysis to determine the temporal reach of a statutory
       amendment, when the legislature has not specified the amendment’s effective date. Ortiz, 2016
       IL App (1st) 133294, ¶¶ 29-33. We agree with the Ortiz court, which more fully explained the
       holdings in Caveney and Glisson.
¶ 30       Moreover, even if our supreme court were to require retroactive impact analysis for
       statutory amendments, we find no authority other than Hunter for the proposition that the State
       has a vested right to have the criminal courts, rather than the juvenile courts, sentence juvenile
       defendants. Generally, parties have “ ‘no vested right in any particular remedy or method of
       procedure.’ ” People v. Ruiz, 107 Ill. 2d 19, 23 (1985) (quoting Ogdon v. Gianakos, 415 Ill.
       591, 597 (1953)); see Williams v. Irving, 98 Ill. App. 3d 323, 329 (1981) (no vested interest in
       method for calculating good time for sentence). We do not see why requiring the State to apply
       to the court for a transfer for sentencing, if it seeks to have a juvenile sentenced by the criminal
       courts, imposes too great a burden on the State, in view of the interest of all citizens in the
       imposition on juveniles of just sentences that take into account the “distinctive attributes of
       youth” (Miller, 567 U.S. at ___, 132 S. Ct. at 2468). Our remand to the juvenile court does not
       affect any party’s vested rights. Under the reasoning of Caveney, Glisson and Ortiz, we deny
       the State’s petition for rehearing.

¶ 31                                          CONCLUSION
¶ 32       The procedural amendment to section 5-130 of the Juvenile Court Act applies to cases on
       direct appeal, including the prosecution of Patterson. Under the amended Act, the juvenile
       court should have held a hearing under section 5-805 of the Act before transferring the
       prosecution of the case against Patterson to the criminal court. We vacate the sentence imposed
       on Patterson and remand to the juvenile court, where the State may exercise its discretion to
       decide whether to file a petition to transfer the case to criminal court for sentencing.


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¶ 33   Convictions affirmed; sentence vacated; cause remanded.




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