                                       2017 IL App (1st) 170152

                                                                            FOURTH DIVISION
                                                                            June 15, 2017

No. 1-17-0152

In re DAVE L., a minor,                                      )      Appeal from the
                                                             )      Circuit Court of
(The People of the State of Illinois                         )      Cook County.
                                                             )
       Petitioner-Appellee,                                  )
                                                             )      No. 16 JD 01958
v.                                                           )
                                                             )
Dave L.,                                                     )
                                                             )      Honorable
Respondent-Appellant).                                       )      Stuart Lubin,
                                                             )      Judge Presiding.

       JUSTICE McBRIDE delivered the judgment of the court, with opinion.
       Presiding Justice Ellis and Justice Howse concurred in the judgment and opinion.

                                             OPINION


¶1     Respondent Dave L., born July 20, 1999, was charged in a petition for adjudication of

wardship with two counts of aggravated unlawful use of a weapon (AUUW) based on his

possession of a handgun without a firearm owner’s identification (FOID) card and his age. Based

on respondent’s previous adjudications of delinquency for armed robbery and AUUW, and that

his current offense of AUUW was a Class 2 felony, the State filed notice of its intent to

prosecute respondent as a violent juvenile offender (VJO) pursuant to section 5-820 of the

Juvenile Court Act of 1987 (the Act) (705 ILCS 405/5-820 (West 2014)). After a jury trial in

Cook County circuit court, respondent was adjudicated delinquent and subsequently sentenced as

a VJO under the Act to a mandatory term of confinement until age 21.
No. 1-17-0152


¶2     Respondent appeals, arguing that: (1) he was not eligible for sentencing as a VJO under

the Act because his AUUW charge would not have been a Class 2 felony if he had been

prosecuted as an adult; and (2) the VJO statute violates the eighth amendment of the United

States Constitution and the proportionate penalties clause of the Illinois Constitution because it

removes the trial court’s discretion in sentencing.

¶3     Respondent does not challenge the sufficiency of the evidence, so we will discuss the

facts only to the extent necessary to understand the current appeal. The following evidence was

presented at respondent’s December 2016 jury trial.

¶4     Officer Jeffrey Salvetti testified that he was employed as Chicago police officer. On

August 30, 2016, he was working with his partners, officers Erik Seng and Ernesto Amparan, in

an unmarked police vehicle. At approximately 11:40 p.m., he was on patrol with his partners

near North Pulaski Road and West Grand Avenue. While on the 1500 block of North Pulaski

Road, the officer saw respondent approximately half a block from the vehicle. Officer Salvetti

identified respondent in court. He stated that the vehicle continued north toward respondent.

¶5     Officer Salvetti observed respondent “making hand gestures at passing vehicles.” The

officer stated that he saw respondent look toward the officers’ vehicle and then “immediately

reached down, grabbed the right side of his waistband and turned his back” to the officer.

Respondent grabbed the front side of the waistband with his right hand. As the officers’ vehicle

pulled up alongside respondent, he turned and began running southbound on Pulaski Road.

Officer Salvetti stated that respondent’s right hand remained on his waistband. Officer Salvetti

then exited the vehicle and began to pursue respondent.

¶6     Respondent continued south on Pulaski Road, then made a left eastbound onto West

LeMoyne Street, and then turned into a northbound alley east of Pulaski Road. The officer



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No. 1-17-0152


briefly lost sight of respondent when he turned the corner onto LeMoyne Street and when he

turned into the alley. When the officer turned into the alley, he was approximately one yard

length away from respondent. He observed respondent running northbound and saw respondent’s

“right hand was now extended away from his body, and [he] saw an object leaving

[respondent’s] hand.” Officer Salvetti testified that the object was a handgun. Officer Salvetti

continued to pursue respondent and caught him within 10 to 15 seconds.

¶7     Officer Salvetti’s partner, Officer Amparan, placed respondent into custody. Officer

Salvetti proceeded to the area where he observed respondent throwing the handgun. He climbed

a fence into the yard where he saw the handgun thrown and saw the handgun lying on a concrete

slab in the yard. He testified that it was a Herrington & Richardson LR 22 revolver. When he

recovered the handgun, he cleared the eight live rounds inside the gun. Officer Salvetti stated

that he recovered the handgun within 30 seconds after respondent threw it and no one else was

present at the time.

¶8     Officers Seng and Amparan also testified at the trial and corroborated Officer Salvetti’s

testimony.

¶9     Bob Radmacher testified that he was employed at the Illinois State Police firearm

services bureau and was the supervisor of the application processing unit. He stated that he

searched the FOID card database, and as of September 14, 2016, respondent had never applied

for or been issued a FOID card.

¶ 10   The State then rested. Respondent moved for a directed finding, which the trial court

denied. Respondent rested without presenting any additional evidence. Following deliberations,

the jury found respondent guilty of AUUW. Respondent filed a motion for a new trial, which the

court denied. The case proceeded to respondent’s dispositional hearing.



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¶ 11   At the dispositional hearing, the trial court heard evidence that respondent was 17 years

old, had been detained five times, and has had one juvenile arrest warrant. Respondent has been

committed to the Department of Juvenile Justice (DJJ) twice. The prosecutor disclosed that under

case number 13 JD 1077, respondent was found delinquent of AUUW and sentenced to

probation. In case number 14 JD 653, respondent was found delinquent of AUUW and sentenced

to the DJJ. Upon release, respondent was subsequently charged with theft in case number 15 JD

1333, which the State dismissed. Respondent was also charged with armed robbery and

intimidation of a witness in case number 15 JD 1387 and again sentenced to the DJJ. Based on

respondent’s background, the State asked the trial court to find respondent a VJO and commit

him to the DJJ until age 21.

¶ 12   The trial court then committed respondent to the DJJ until his twenty-first birthday. The

court observed:

                       “You know, I really don’t really like statutes that take away

                my discretion. But in this case with this particular person standing

                in front of me, I can’t really argue with it. There’s a finding of

                inability and best interest. Commit to the Department of Juvenile

                Justice, aggravated unlawful use of a weapon, having previously

                been convicted of the [offenses] the State has tendered in the

                certified copies.”

¶ 13   This appeal followed.

¶ 14   First, respondent argues that he was not eligible for sentencing as a VJO because his

AUUW conviction would not have been a Class 2 felony if he were tried as an adult since his

prior adjudications for AUUW would not have been admissible. According to respondent, his



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No. 1-17-0152


AUUW charge would have remained a Class 4 felony. Respondent admits that he did not

challenge the applicability of the VJO statute to his conviction in the trial court, but asks this

court to review the issue under the plain error doctrine.

¶ 15    To preserve an issue for review, respondent must object both at trial and in a written

posttrial motion. People v. Enoch, 122 Ill. 2d 176, 186 (1988). Failure to do so operates as a

forfeiture as to that issue on appeal. People v. Ward, 154 Ill. 2d 272, 293 (1992). Supreme Court

Rule 615(a) provides that “[a]ny error, defect, irregularity, or variance which does not affect

substantial rights shall be disregarded. Plain errors or defects affecting substantial rights may be

noticed although they were not brought to the attention of the trial court.” Ill. S. Ct. R. 615(a).

The plain error rule “allows a reviewing court to consider unpreserved error when (1) a clear or

obvious error occurred and the evidence is so closely balanced that the error alone threatened to

tip the scales of justice against the defendant, regardless of the seriousness of the error, or (2) a

clear or obvious error occurred and that error is so serious that it affected the fairness of the

defendant’s trial and challenged the integrity of the judicial process, regardless of the closeness

of the evidence.” People v. Piatkowski, 225 Ill. 2d 551, 565 (2007) (citing People v. Herron, 215

Ill. 2d 167, 186-87 (2005)). However, the plain error rule “is not ‘a general saving clause

preserving for review all errors affecting substantial rights whether or not they have been brought

to the attention of the trial court.’ ” Herron, 215 Ill. 2d at 177 (quoting People v. Precup, 73 Ill.

2d 7, 16 (1978)). Rather, the plain error rule is a narrow and limited exception to the general

rules of forfeiture. Id.

¶ 16    Respondent carries the burden of persuasion under both prongs of the plain error rule.

People v. Lewis, 234 Ill. 2d 32, 43 (2009). Respondent asserts that this first alleged error would




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No. 1-17-0152


qualify as a plain error under the second prong. However, “[t]he first step of plain-error review is

to determine whether any error occurred.” Lewis, 234 Ill. 2d at 43.

¶ 17   A minor is classified as a VJO under section 5-820 of the Act. Section 5-820(a) details

the requirements for a VJO classification as follows:

                “A minor having been previously adjudicated a delinquent minor

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

                would have been a Class 2 or greater felony involving the use or

                threat of physical force or violence against an individual or a Class

                2 or greater felony for which an element of the offense is

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

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

                be adjudicated a Violent Juvenile Offender if:

                       (1) The second adjudication is for an offense occurring

                   after adjudication on the first; and

                       (2) The second offense occurred on or after January 1,

                   1995.” 705 ILCS 405/5-820(a) (West 2014).

¶ 18   Respondent does not contest that he has the requisite prior Class 2 or greater felony, but

asserts that the AUUW charge in the instant case would not have been prosecuted as a Class 2 or

greater felony if he had been tried as an adult. Respondent focuses on section 24-1.6(d)(1) of the

AUUW statute, which provides:

                “Aggravated unlawful use of a weapon is a Class 4 felony; a

                second or subsequent offense is a Class 2 felony for which the

                person shall be sentenced to a term of imprisonment of not less



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No. 1-17-0152


                than 3 years and not more than 7 years.” 720 ILCS 5/24-1.6(d)(1)

                (West 2014).

¶ 19   Respondent relies on People v. Burns, 2015 IL 117387, and contends that the penalty

enhancement is not an element of the offense. According to respondent, the Burns court

explicitly rejected the principle that a subsequent AUUW could be considered a Class 2 felony.

¶ 20   In Burns, the supreme court clarified its prior holding in People v. Aguilar, 2013 IL

112116. Section 24-1.6(a)(1), (a)(3)(A) of the AUUW statute (720 ILCS 5/24-1.6(a)(1),

(a)(3)(A) (West 2008)), is facially unconstitutional because it violates the right to keep and bear

arms (Aguilar, 2013 IL 112116, ¶ 21) since, on its face, the “statutory provision constitutes a flat

ban on carrying ready-to-use guns outside the home.” Burns, 2015 IL 117387, ¶ 25. The Burns

court addressed its prior holding in Aguilar.

                       “Admittedly, in Aguilar, we specifically limited our

                holding of facial invalidity to a so-called ‘Class 4 form’ of the

                offense. See Aguilar, 2013 IL 112116, ¶ 21. However, we now

                acknowledge that our reference in Aguilar to a ‘Class 4 form’ of

                the offense was inappropriate. No such offense exists. There is no

                ‘Class 4 form’ or ‘Class 2 form’ of aggravated unlawful use of a

                weapon.” Id. ¶ 22.

¶ 21   The Burns court observed that under subsection (d), “the legislature increases the penalty

for any violation of the statute from a Class 4 felony to a Class 2 felony if the person found

guilty of committing the offense is a convicted felon. This sentencing provision does not create

separate and distinct offenses of aggravated unlawful use of a weapon. Nor does making the

sentence for a violation of the statute a Class 4 felony or a Class 2 felony transform the offense



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No. 1-17-0152


of AUUW into a different ‘form.’ ” Id. ¶ 24. The Burns language relied on by respondent

concludes that paragraph. “The penalty enhancements in subsection (d) are not elements of the

offense. They do not come into play until after the defendant is found guilty.” Id.

¶ 22    However, respondent fails to explain how this language affects his case. Respondent

makes a single conclusory statement that he was not adjudicated guilty of an offense that would

have been prosecuted as a Class 2 felony if he were charged as an adult. Supreme Court Rule

341(h)(7) requires that an appellant’s brief provide this court with an argument “which shall

contain the contentions of the appellant and reasons therefor” (Ill. S. Ct. R. 341(h)(7) (eff. Jan. 1,

2016)). This court is not a repository into which an appellant may foist the burden of argument

and research. People v. Jacobs, 405 Ill. App. 3d 210, 218 (2010). It is neither the function nor the

obligation of this court to act as an advocate or search the record for error. Id. Respondent’s

conclusory statement, without any supporting analysis, is insufficient to satisfy Rule 341(h)(7),

and his claim is, therefore, forfeited.

¶ 23    Still, we find respondent’s argument to be without merit. First, respondent’s reliance on

Burns is misplaced. As we discussed above, the holding in Burns clarified that section 24-

1.6(a)(1), (a)(3)(A), which provided that a person committed the offense of aggravated unlawful

use of a weapon when he or she knowingly carries on or about his or her person or in any

vehicle, any pistol, revolver, stun gun, taser or other firearm, when the firearm possessed is

uncased, loaded, and immediately accessible at the time of the offense (720 ILCS 5/24-1.6(a)(1),

(a)(3)(A) (West 2008)), was facially unconstitutional without limitation. Burns, 2015 IL 117387,

¶ 25. Here, the petition for adjudication of wardship charged respondent for violating section 24-

1.6(a)(1), (a)(3)(C) for failure to possess a valid FOID card and for violating section 24-

1.6(a)(1), (a)(3)(I) for possessing a firearm while under the age of 21 and not engaged in lawful



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No. 1-17-0152


hunting activities. The Illinois Supreme Court has explicitly found that subsections of the

AUUW are severable from the subsection unconstitutional under Aguilar. People v. Mosley,

2015 IL 115872, ¶ 31. The Mosley court went on to hold that AUUW based on failure to possess

a valid FOID card (720 ILCS 5/24-1.6(a)(1), (a)(3)(C) (West 2014)), and possession of a firearm

by an individual under age 21 (720 ILCS 5/24-1.6(a)(1), (a)(3)(I) (West 2014)) are constitutional

and remain valid and enforceable. Mosley, 2015 IL 115872, ¶¶ 36-37. Thus, Burns is applicable

only to the subsection of the AUUW statute found unconstitutional under Aguilar, subsection

(a)(3)(A). As with any other adult similarly charged, respondent was charged under

constitutional sections of the AUUW statute that remain viable; we reject Burns’s applicability in

this case.

¶ 24    Respondent’s argument that there is no inherent Class 2 felony charge for AUUW is also

incorrect as a matter of law. If he had been prosecuted as an adult, he would have been charged

with a Class 2 felony at the initiation of charges. Under section 111-3(c) of the Code of Criminal

Procedure of 1963 (725 ILCS 5/111-3(c) (West 2014)), the State would have been required to

give notice of its intention to enhance his sentence based on his prior AUUW convictions in the

charging instrument.

¶ 25    Section 111-3(c) provides:

                “When the State seeks an enhanced sentence because of a prior

                conviction, the charge shall also state the intention to seek an

                enhanced sentence and shall state such prior conviction so as to

                give notice to the defendant. However, the fact of such prior

                conviction and the State’s intention to seek an enhanced sentence

                are not elements of the offense and may not be disclosed to the



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No. 1-17-0152


                jury during trial unless otherwise permitted by issues properly

                raised during such trial. For the purposes of this Section, ‘enhanced

                sentence’ means a sentence which is increased by a prior

                conviction from one classification of offense to another higher

                level classification of offense set forth in Section 5-4.5-10 of the

                Unified Code of Corrections (730 ILCS 5/5-4.5-10); it does not

                include an increase in the sentence applied within the same level of

                classification of offense.” 725 ILCS 5/111-3(c) (West 2014).

¶ 26   “In construing the language of section 111-3(c), it is clear that the notice provision

applies only when the prior conviction that would enhance the sentence is not already an element

of the offense.” People v. Easley, 2014 IL 115581, ¶ 19. Thus, notice under section 111-3(c)

would have been required if respondent had been tried as an adult for AUUW where the State

sought to enhance his sentence to a Class 2 felony based on his prior AUUW convictions.

¶ 27   Additionally, we point out that the petition for adjudication of wardship filed against

respondent did include notice of “this being a Class 2 felony as the minor has previously been

adjudicated delinquent” for AUUW. Therefore, the charging instrument included notice that the

State was prosecuting a Class 2 offense and seeking an enhanced sentence in respondent’s case,

as it would have been required in criminal court. For these reasons, respondent’s argument fails.

¶ 28   Respondent further argues that, even if his current charge of AUUW would be considered

a Class 2 felony, his prior AUUW convictions would not have been admissible if he were

prosecuted as an adult. Section 5-150(1)(b) of the Act allows for evidence of prior adjudications

to be used “in criminal proceedings when the court is to determine the amount of bail, fitness of

the defendant or in sentencing under the Unified Code of Corrections.” 705 ILCS 405/5-



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150(1)(b) (West 2014). According to respondent, since the section 24-1.6(d)(1) sentencing

enhancement for AUUW falls under the Criminal Code of 2012 and not the Unified Code of

Corrections, his prior adjudications would not have been admissible. We are not persuaded.

¶ 29     While section 24-1.6(d)(1) designates the degree of felonies possible for AUUW

convictions, the authority to impose criminal sentences is governed by the Unified Code of

Corrections. See 730 ILCS 5/5-1-1 et seq. (West 2014). For example, section 5-4-1 governs the

conduct of a sentencing hearing. 730 ILCS 5/5-4-1 (West 2014). While section 24-1.6(d)(1)

stated that “a second or subsequent offense is a Class 2 felony for which the person shall be

sentenced to a term of imprisonment of not less than 3 years and not more than 7 years” (720

ILCS 5/24-1.6(d)(1) (West 2014)), this language mirrored the Class 2 felony sentencing range

under the Unified Code of Corrections. Under the Unified Code of Corrections, for a Class 2

felony, “[t]he sentence of imprisonment shall be a determinate sentence of not less than 3 years

and not more than 7 years.” 730 ILCS 5/5-4.5-35(a) (West 2014). At a sentencing hearing for an

adult prosecution, respondent’s juvenile adjudications for two prior AUUW convictions would

have properly been admitted under section 5-150(1)(b) of the Act to establish his eligibility for a

Class 2 felony sentence under section 5-4.5-35(a) of the Unified Code of Corrections.

¶ 30     Since we have found that respondent’s prior adjudications would have been admissible if

he had been tried as an adult and that he subsequently would have been convicted and sentenced

for a Class 2 felony, the trial court properly adjudicated respondent a VJO under section 5-820 of

the Act. Because we have found no error in the proceedings, respondent’s plain error argument

fails.

¶ 31     Further, respondent asserts that his trial counsel was ineffective under Strickland v.

Washington, 466 U.S. 668, 684-86 (1984), for failing to object to the trial court’s finding that



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respondent was a VJO. However, since we have concluded that respondent was properly subject

to the VJO statute, no claim of ineffective assistance of counsel can stand. Accordingly, this

claim is without merit.

¶ 32   Next, respondent contends that the VJO statute is facially unconstitutional because it

violates the eighth amendment (U.S. Const., amend. VIII) and the proportionate penalties clause

of the Illinois Constitution (Ill. Const. 1970, art. I, § 11). Respondent bases the weight of his

argument on the recent line of United States Supreme Court cases addressing the differences in

imposing criminal punishments on minors.

¶ 33   Respondent relies on Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455 (2012), Graham

v. Florida, 560 U.S. 48 (2010), and Roper v. Simmons, 543 U.S. 551 (2005), to contend that

these cases hold fundamental differences between juvenile and adult minds make children under

18 less culpable than adults for the same offenses and, thus, asserting that additional

constitutional protections for these juvenile offenders are required. The Supreme Court held in

Roper that the eighth amendment forbids the death penalty for juvenile offenders, finding that

they “cannot with reliability be classified among the worst offenders.” Roper, 543 U.S. at 569. In

Graham, the Supreme Court held that the eighth amendment prohibits a sentence of life without

the possibility of parole for juveniles who did not commit homicide. Graham, 560 U.S. at 74-75.

Finally, in Miller, the Supreme Court held that the eighth amendment prohibits a sentencing

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

including those convicted of homicide, finding that a judge must first have the opportunity to

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

¶ 34   According to respondent, the mandatory sentence of incarceration at the DJJ until his

twenty-first birthday violates the eighth amendment under Miller because it removed the trial



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No. 1-17-0152


court’s discretion to consider a juvenile offender’s youth and attendant characteristics before

imposing the penalty.

¶ 35   The VJO statute states, in relevant part:

                “If the court finds that the prerequisites established in subsection

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

                Violent Juvenile Offender and commit the minor to the

                Department of Juvenile Justice until his or her 21st birthday,

                without possibility of aftercare release, furlough, or non-

                emergency authorized absence.” (Emphasis added.) 705 ILCS

                405/5-820(f) (West 2014).

¶ 36   Initially, we observe that our supreme court has determined that the eighth amendment

and the proportionate penalties clause do not apply to juvenile proceedings initiated by a petition

for an adjudication of wardship. In re Rodney H., 223 Ill. 2d 510, 521 (2006); In re A.P., 2014 IL

App (1st) 140327, ¶ 13. The court reasoned that both the eighth amendment and the

proportionate penalties clause apply only to the criminal process, “that is, to direct actions by the

government to inflict punishment.” Rodney H., 223 Ill. 2d at 518. The court concluded that

proceedings under the Act are not criminal in nature and that an adjudication of wardship is not a

direct action by the State to inflict punishment within the meaning of the eighth amendment and

proportionate penalties clause. Id. However, even if the eighth amendment and proportionate

penalties clause applied to the Act, we conclude that the VJO statute is constitutional.

¶ 37   “The constitutionality of a statute is a question of law that we review de novo. All statutes

are presumed to be constitutional. The party challenging the constitutionality of a statute has the

burden of clearly establishing its invalidity. A court must construe a statute so as to uphold its



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constitutionality, if reasonably possible.” People v. Minnis, 2016 IL 119563, ¶ 21. “Successfully

making a facial challenge to a statute’s constitutionality is extremely difficult, requiring a

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

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

invalidity.” (Emphasis in original.) In re M.T., 221 Ill. 2d 517, 536-37 (2006).

¶ 38    The eighth amendment, as applied to the states through the fourteenth amendment,

prohibits the imposition of cruel and unusual punishment for criminal offenses that are

disproportionate in relation to the offense committed or the status of the offender. U.S. Const.,

amend. VIII. The eighth amendment’s ban on excessive sanctions flows from the basic principle

that criminal punishment should be graduated and proportioned to both the offender and the

offense. Miller, 567 U.S. at ____, 132 S. Ct. at 2463.

¶ 39    Respondent’s arguments have already been considered and rejected by several recent

decisions of this court. See In re Deshawn G., 2015 IL App (1st) 143316, In re Shermaine S.,

2015 IL App (1st) 142421, In re Isaiah D., 2015 IL App (1st) 143507, and In re A.P., 2014 IL

App (1st) 140327. We note that Deshawn G. and Isaiah D. reviewed the VJO statute under an

eighth amendment and proportionate penalties challenge while the remaining cases as well as

Isaiah D. considered the same challenge of a similar statute under the Act for habitual juvenile

offenders (HJO). “The Juvenile Court Act provisions regarding HJO and VJO status require, in

substantially identical language, that once the court has found that the predicate offenses for HJO

or VJO status have been proven, the court shall commit the minor to the [DJJ] until his 21st

birthday. 705 ILCS 405/5-815, 5-820 (West 2012).” Isaiah D., 2015 IL App (1st) 143507, ¶ 51.

Thus, the reasoning in cases reviewing the HJO statute is equally applicable to the instant

constitutional challenge to the VJO statute.



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No. 1-17-0152


¶ 40   The prior cases have consistently held that the Illinois Supreme Court’s decision in

People ex rel. Carey v. Chrastka, 83 Ill. 2d 67 (1980), controls our analysis.

                       “The Illinois Supreme Court has previously held that the

                habitual juvenile offender provision of the Act is constitutional.

                People ex rel. Carey v. Chrastka, 83 Ill. 2d 67, 78-80 (1980). More

                specifically, relying on the United States Supreme Court’s holding

                in Rummel v. Estelle, 445 U.S. 263 (1980), the Illinois Supreme

                Court in Chrastka found that ‘state legislatures have traditionally

                been allowed wide latitude in setting penalties for State crimes

                [citation], and we do not believe that the disposition authorized

                here rises to the level of cruel and unusual punishment by any

                stretch of the imagination.’ Chrastka, 83 Ill. 2d at 81-82; see also

                Rummel, 445 U.S. at 280-81, 284-85 (finding that the imposition of

                a life sentence with a possibility of parole under a recidivist statute

                upon a defendant convicted, successively, of fraudulent use of a

                credit card, passing a forged check, and obtaining money by false

                pretenses was not a cruel and unusual punishment).” A.P., 2014 IL

                App (1st) 140327, ¶ 18.

See also Shermaine S., 2015 IL App (1st) 142421, ¶ 19, Isaiah D., 2015 IL App (1st) 143507,

¶¶ 55-56, and Deshawn G., 2015 IL App (1st) 143316, ¶ 53.

¶ 41   Respondent recognizes the decision in Chrastka but asserts that the foundation for its

holding has been “swept away” and is no longer valid. However, this argument has also been

rejected by our recent decisions.



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No. 1-17-0152


                       “Respondent acknowledges our supreme court’s holding in

                Chrastka but argues that it is ‘ripe for being overturned’ in light of

                subsequent United States Supreme Court precedent. Particularly,

                respondent relies on Miller ***, which held that imposition of

                mandatory life sentences without the possibility of parole for

                persons under the age of 18 at the time of their crimes violates the

                eighth amendment. Id. at ____, 132 S. Ct. at 2460. However, we

                have specifically rejected a juvenile’s reliance on Miller to

                challenge the continuing validity of Chrastka. See Shermaine S.,

                2015 IL App (1st) 142421, ¶¶ 21-25; A.P., 2014 IL App (1st)

                140327, ¶¶ 18-22. In particular, we have found that Miller is

                distinguishable because it involved defendants who committed

                crimes as juveniles but were charged and convicted in the adult

                court systems. Id. ¶ 22. Moreover, we have noted that Miller ‘did

                not hold that the eighth amendment prohibited any mandatory

                penalties for juveniles, only mandatory natural life sentences

                without the possibility of parole.’ (Emphasis in original.) Id. Thus,

                we have concluded that Miller is ‘factually distinguishable and

                does not support deviating from precedent established in Chrastka,

                which, as an appellate court, we are required to follow.’ Shermaine

                S., 2015 IL App (1st) 142421, ¶ 25. In this case, respondent urges

                that both A.P. and Shermaine S. were wrongly decided, but raises

                no new argument to warrant departing from those decisions. Thus,



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                we again conclude that Chrastka remains binding and reject

                respondent’s eighth amendment challenge to the HJO and VJO

                mandatory sentencing provisions.” In re Isaiah D., 2015 IL App

                (1st) 143507, ¶ 56.

See also In re Deshawn G., 2015 IL App (1st) 143316, ¶ 53 (following In re Isaiah D.).

¶ 42    Thus, respondent’s challenge of the VJO statute as violative of the eighth amendment is

without merit. Respondent asserts that if this court determines that the eighth amendment is not

implicated by the VJO statute, then we should find that the VJO statute violates the proportionate

penalties clause of the Illinois Constitution. This argument has also been considered and rejected

in previous cases.

¶ 43    Article I, section 11, of the Illinois Constitution, commonly known as the proportionate

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

to the seriousness of the offense.” Ill. Const. 1970, art. I, § 11. “[T]he Illinois proportionate

penalties clause is co-extensive with the eighth amendment’s cruel and unusual punishment

clause ***.” People v. Patterson, 2014 IL 115102, ¶ 106 (citing In re Rodney H., 223 Ill. 2d at

518).

                “Under that proposition, our rejection of respondent’s eighth

                amendment challenge pursuant to our supreme court’s decision in

                Chrastka would likewise compel rejection of his proportionate

                penalties argument. In fact, we recently applied that logic in

                rejecting a proportionate penalties challenge: ‘[B]ecause in

                Chrastka, our supreme court held that sentencing a habitual

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



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                violate the eighth amendment and the proportionate penalties

                clause provides co-extensive protections, we also reject

                Shermaine’s challenge to the habitual juvenile offender provision

                under our state constitution.’ ” Isaiah D., 2015 IL App (1st)

                143507, ¶ 58 (quoting Shermaine S., 2015 IL App (1st) 142421,

                ¶ 31).

¶ 44   Respondent argues that this holding in Patterson is an “outlier” and that the holding in

People v. Miller, 202 Ill. 2d 328 (2002), finding that a mandatory sentence for a juvenile tried as

an adult violated the proportionate penalties clause, is instructive in this case. Again, the court in

Isaiah D. reviewed this same argument.

                         “Respondent urges that our supreme court’s statement that

                the proportionate penalties clause is ‘co-extensive’ with the eighth

                amendment (Patterson, 2014 IL 115102, ¶ 106) should be

                disregarded as an ‘outlier’ that cannot be reconciled with a long

                history of ‘cases recognizing the unique importance of

                rehabilitation, and the rehabilitation of youth in particular.’

                However, even before our supreme court decided Patterson, we

                had independently concluded that the mandatory sentencing

                provision of the HJO statute did not violate the proportionate

                penalties clause. See A.P., 2014 IL App (1st) 140327, ¶¶ 16-24. In

                A.P., we reasoned that ‘[t]he legislature is entitled to find that, in

                the case of a recidivist, violent offender such as respondent, there

                are no mitigating circumstances to allow for a lesser penalty.’ Id.



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                ¶ 23 (noting our supreme court’s statement in People v. Taylor,

                102 Ill. 2d 201, 206 (1984), that ‘[t]he rehabilitative objective of

                [the proportionate penalties clause] should not and does not

                prevent the legislature from fixing mandatory minimum penalties

                where it has been determined that no set of mitigating

                circumstances’ would justify a lesser sentence).

                       We note that respondent’s proportionate penalties challenge

                relies heavily on our supreme court’s decision in People v. Miller,

                202 Ill. 2d 328 (2002), which recognized the ‘long-standing

                distinction made in this state between adult and juvenile offenders’

                and that ‘young defendants have greater rehabilitative potential.’

                Id. at 341-42. Miller held that a mandatory life sentence was

                unconstitutional when applied to a 15-year-old offender convicted

                on two counts of first degree murder on an accountability theory,

                as it eliminated the sentencing court’s ability to consider factors

                such as the defendant’s age or degree of participation in the crime.

                Id. at 342. Nonetheless, in Shermaine S. we held that Miller is

                distinguishable from the HJO sentencing provision, and that

                ‘reliance on [Miller ] to support [a] claim of a violation of the

                proportionate penalties clause is misplaced.’ Shermaine S., 2015 IL

                App (1st) 142421, ¶ 30 (noting that the defendant in Miller was

                tried as an adult and was subject to a natural life sentence). As we

                concluded in Shermaine S., our supreme court’s decision in Miller



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                is distinguishable from respondent’s case and thus does not

                undermine the constitutionality of the HJO and VJO sentencing

                provisions.

                       We recognize that, although our decisions in A.P. and

                Shermaine S. concerned challenges only to the HJO mandatory

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

                respondent here challenges both that provision and its VJO

                counterpart in section 5-820 of the Juvenile Court Act. See 705

                ILCS 405/5-815, 5-820 (West 2012). However, respondent’s

                arguments are identical with respect to both provisions, and he has

                offered no persuasive reason to distinguish his case from the

                identical eighth amendment and proportionate penalties challenges

                that our court has rejected with respect to the HJO statutory

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

                reason why our decisions rejecting the same challenges to the HJO

                provision do not apply with equal force to the equivalent VJO

                provision. Accordingly, we conclude that respondent’s arguments

                with respect to both the HJO and VJO mandatory sentencing

                provisions of the Juvenile Court Act must fail.” Isaiah D., 2015 IL

                App (1st) 143507, ¶¶ 59-61.

See also Deshawn G., 2015 IL App (1st) 143316, ¶¶ 54-56 (relying on Isaiah D.’s reasoning to

conclude that the respondent’s proportionate penalties argument fails).




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¶ 45   We find Isaiah D., as well as Shermaine S., Deshawn G., and A.P., to be well reasoned

and adopt the holding that the VJO statute does not violate the proportionate penalties clause of

the Illinois Constitution. Accordingly, respondent’s argument must fail.

¶ 46   Based on the foregoing reasons, we affirm the decision of the circuit court of Cook

County.

¶ 47   Affirmed.




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