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                                  Supreme Court                               Date: 2017.01.26
                                                                              11:10:44 -06'00'




                           People v. Jones, 2016 IL 119391




Caption in Supreme   THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
Court:               DERRICK JONES, Appellant.



Docket No.           119391



Filed                October 20, 2016



Decision Under       Appeal from the Appellate Court for the Third District; heard in that
Review               court on appeal from the Circuit Court of Will County, the Hon.
                     Daniel Rozak, Judge, presiding.



Judgment             Appellate court judgment affirmed.



Counsel on           Michael J. Pelletier, State Appellate Defender, Thomas A. Lilien,
Appeal               Deputy Defender, and Josette M. Skelnik, Assistant Appellate
                     Defender, of the Office of the State Appellate Defender, of Elgin, for
                     appellant.

                     Lisa Madigan, Attorney General, of Springfield, and James Glasgow,
                     State’s Attorney, of Joliet (Carolyn E. Shapiro, Solicitor General, and
                     Michael M. Glick and John R. Schleppenbach, Assistant Attorneys
                     General, of Chicago, of counsel), for the People.
     Justices                  JUSTICE FREEMAN delivered the judgment of the court, with
                               opinion.
                               Justices Thomas, Karmeier, and Theis concurred in the judgment and
                               opinion.
                               Justice Burke dissented, with opinion, joined by Chief Justice Garman
                               and Justice Kilbride.



                                                 OPINION

¶1         Defendant Derrick Jones was convicted of aggravated robbery in the circuit court of Will
       County and sentenced to an extended-term sentence of 24 years’ imprisonment based on a
       prior juvenile adjudication of delinquency referenced in his presentence investigative report.
       Defendant appealed his sentence, contending that the use of his prior juvenile adjudication to
       enhance his sentence violated the rulings in Apprendi v. New Jersey, 530 U.S. 466 (2000), and
       Shepard v. United States, 544 U.S. 13 (2005). The appellate court affirmed. 2015 IL App (3d)
       130053. We allowed defendant’s petition for leave to appeal pursuant to Illinois Supreme
       Court Rules 315 and 612 (Ill. S. Ct. R. 315 (eff. July 1, 2013); R. 612 (eff. Feb. 6, 2013)). For
       the following reasons, we affirm the judgment of the appellate court.

¶2                                           I. BACKGROUND
¶3          Defendant was charged by indictment with aggravated robbery, a Class 1 felony (720 ILCS
       5/18-5 (West 2010) (repealed by Pub. Act 97-1108 (eff. Jan. 1, 2013))), as a result of an
       incident that occurred on January 6, 2012. Before defendant’s jury trial began, the court asked
       the parties whether the sentencing range for the aggravated battery charge would be 4 to 30
       years. The State agreed, as did defendant’s counsel. Defendant’s counsel stated that the State
       had tendered to her a “certified court docket from the ’04 JD case” indicating that defendant, as
       a juvenile, had been adjudicated delinquent on multiple counts of residential burglary and that
       adjudication would make defendant eligible for an extended-term sentence in the present case,
       with a range of 4 to 30 years.1 However, defendant’s counsel also indicated that she spoke
       with defendant and defendant denied having an adjudication for residential burglary. The court
       admonished defendant that he faced a sentencing range of 4 to 30 years, and the case proceeded
       to trial.
¶4          At trial, the evidence presented was limited to the aggravated robbery charge. No evidence
       regarding defendant’s prior juvenile adjudication was introduced. The jury found defendant
       guilty of aggravated robbery, and the case proceeded to sentencing.
¶5          A presentencing investigative report (PSI) indicated that defendant, as a juvenile, had been
       adjudicated delinquent in 2005 of multiple offenses in case No. 04 JD 00276, including three
       counts of residential burglary. The PSI provided:
                 “On April 28, 2005, with the then minor, Derrick Jones, having been adjudicated
                 delinquent in the original Petition alleging Assault, and the 1st, 2nd and 3rd

           1
            The docket sheet for the 2004 juvenile proceeding was not made a part of the record.

                                                     -2-
               Supplemental Petitions alleging: Burglary, Criminal Trespass to Land, Knowingly
               Damage to Property and Residential Burglary, three (3) Counts. Derrick Jones was
               sentenced to 5 years and 8 months Probation, until his 21st Birthday in the
               aforementioned offenses, with the first nine (9) months of Probation to be under the
               directive of Intensive Probation Supervision ***.”
       After considering various factors in aggravation and mitigation, the court sentenced defendant
       to an extended-term sentence of 24 years’ imprisonment. Defendant’s motion to reconsider his
       sentence was subsequently denied.
¶6         On direct review, defendant did not challenge his conviction for aggravated robbery but
       did challenge his extended-term sentence. Defendant first argued that his extended-term
       sentence violated his sixth amendment right to a jury trial pursuant to the Supreme Court’s
       ruling in Apprendi, because the fact of his juvenile adjudication was neither proven to a jury
       beyond a reasonable doubt nor alleged in the indictment. The appellate court rejected his
       contention, finding that a prior adjudication of delinquency was sufficiently analogous to a
       prior criminal conviction to fall under the prior-conviction exception in Apprendi. 2015 IL
       App (3d) 130053, ¶ 38. The court reasoned that because due process does not require the right
       to a jury trial in juvenile proceedings, the absence of a right to a jury trial does not undermine
       the reliability of a juvenile proceeding. Id. ¶ 37. It further stated that a juvenile adjudication
       “reached only where all constitutionally required procedural safeguards are in place, is a no
       less reliable basis for the enhancement of a sentence than is a standard adult criminal
       conviction.” Id. ¶ 36. Defendant also argued in the alternative that the circuit court improperly
       relied upon the PSI in determining the fact of his prior juvenile adjudication in contravention of
       the Supreme Court’s ruling in Shepard, contending that a PSI is “particularly unreliable” in
       determining the fact of a prior adjudication of delinquency, as opposed to a prior criminal
       conviction. The appellate court also rejected this contention, finding that information in a PSI
       may be used as the basis for sentence enhancement without running afoul of Shepard and that
       the PSI unequivocally indicated defendant had been adjudicated delinquent pursuant to a
       petition alleging three counts of residential burglary, a Class 1 felony. Id. ¶ 47. The appellate
       court affirmed the judgment of the circuit court of Will County. Id. ¶ 50.
¶7         We granted defendant’s petition for leave to appeal (Ill. S. Ct. R. 315 (eff. July 1, 2013); R.
       612 (eff. Feb. 6, 2013)) and affirm the judgment of the appellate court.

¶8                                            II. ANALYSIS
¶9         On appeal, defendant contends that a prior juvenile delinquency adjudication is not the
       equivalent of a prior conviction for purposes of extended-term sentencing under Apprendi and
       that such a fact must be alleged in the indictment and proven beyond a reasonable doubt.
       Alternatively, defendant contends that even if a prior adjudication of delinquency can qualify
       as a prior conviction for purposes of extended-term sentencing, the information contained in
       his PSI failed to conclusively establish that he had been adjudicated delinquent of residential
       burglary. Defendant acknowledges that he failed to preserve these issues for review but argues
       that an Apprendi violation may be reviewed as plain error where, as here, the violation was
       prejudicial to him.
¶ 10       It is well settled that the plain error doctrine allows a reviewing court to consider
       unpreserved error when (1) a clear or obvious error occurred and the evidence is so closely


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       balanced that the error alone threatened to tip the scales of justice against the defendant or (2) a
       clear or obvious error occurred and the error is so serious that it affected the fairness of the
       defendant’s trial and the integrity of the judicial process, regardless of the closeness of the
       evidence. In re Jonathon C.B., 2011 IL 107750, ¶ 70; People v. Herron, 215 Ill. 2d 167,
       178-79 (2005). Our decision in Herron established two categories of plain error: prejudicial
       errors, which may have affected the outcome in a closely balanced case, and presumptively
       prejudicial errors, which must be remedied although they may not have affected the outcome.
       People v. Nitz, 219 Ill. 2d 400, 415 (2006). In both instances, the burden of persuasion remains
       with the defendant. Herron, 215 Ill. 2d at 187. We have held that potential Apprendi violations
       fall under the first category of prejudicial errors and have required defendants to prove that
       they were prejudiced by the error. Nitz, 219 Ill. 2d at 415. In addressing a plain error argument,
       we first consider whether error occurred. In re Jonathon C.B., 2011 IL 107750, ¶ 70. Review
       of this issue presents a question of law, which we review de novo. People v. Hopkins, 201 Ill.
       2d 26, 36 (2002).

¶ 11                             A. Apprendi’s Prior-Conviction Exception
¶ 12       We first consider defendant’s argument based on Apprendi. As noted above, the offense of
       aggravated robbery is a Class 1 felony. 720 ILCS 5/18-5(b) (West 2010) (repealed by Pub. Act
       97-1108 (eff. Jan. 1, 2013)). The standard sentencing range for a Class 1 felony is 4 to 15 years.
       730 ILCS 5/5-4.5-30(a) (West 2010). The extended-term sentencing range for a Class 1 felony
       is 15 to 30 years. Id. Section 5-5-3.2 of the Unified Code of Corrections (Code of Corrections)
       sets forth various factors that the court may consider as a reason to impose an extended-term
       sentence. 730 ILCS 5/5-5-3.2(b) (West 2010). Relevant here is the factor in subsection (b)(7)
       of section 5-5-3.2, which governs “[w]hen a defendant who was at least 17 years of age at the
       time of the commission of the offense is convicted of a felony and has been previously
       adjudicated a delinquent minor under the Juvenile Court Act of 1987 for an act that if
       committed by an adult would be a Class X or Class 1 felony when the conviction has occurred
       within 10 years after the previous adjudication, excluding time spent in custody.” 730 ILCS
       5/5-5-3.2(b)(7) (West 2010). The offense of residential burglary is a Class 1 felony. 720 ILCS
       5/19-3(b) (West 2010). Based on the information in the PSI that defendant had been
       adjudicated delinquent of the offense of residential burglary, section 5-5-3.2(b)(7) of the Code
       of Corrections authorized the circuit court to impose an extended-term sentence. Therefore, we
       consider whether the manner in which the court imposed the sentence violated the rule set forth
       in Apprendi.
¶ 13       In Apprendi, the Supreme Court held that “[o]ther than the fact of a prior conviction, 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. The
       Court found unconstitutional a New Jersey hate-crime statute that permitted an increase in the
       defendant’s maximum prison sentence based on the trial judge’s finding by a preponderance of
       the evidence that the defendant had acted with purpose to intimidate the victim based on
       particular characteristics of the victim. Id. at 491. The court emphasized, “there is a vast
       difference between accepting the validity of a prior judgment of conviction entered in a
       proceeding in which the defendant had the right to a jury trial and the right to require the
       prosecutor to prove guilt beyond a reasonable doubt, and allowing the judge to find the
       required fact under a lesser standard of proof.” Id. at 496.

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¶ 14        In February 2001, our legislature amended section 111-3(c-5) of the Code of Criminal
       Procedure of 1963 (Criminal Code) (Pub. Act 91-953 (eff. Feb. 23, 2001) (adding 725 ILCS
       5/111-3(c-5))) in response to the decision in Apprendi. This amendment brought the Criminal
       Code into conformity with Apprendi, expressly incorporating the prior-conviction exception as
       well as the due process protections afforded to defendants when an extended-term sentence is
       sought. Section 111-3(c-5) of the Criminal Code provides in relevant part: “Notwithstanding
       any other provision of law, in all cases in which the imposition of the death penalty is not a
       possibility, if an alleged fact (other than the fact of a prior conviction) is not an element of an
       offense but is sought to be used to increase the range of penalties for the offense beyond the
       statutory maximum that could otherwise be imposed for the offense, the alleged fact must be
       included in the charging instrument or otherwise provided to the defendant through a written
       notification before trial, submitted to a trier of fact as an aggravating factor, and proved beyond
       a reasonable doubt.” 725 ILCS 5/111-3(c-5) (West 2010).
¶ 15        The question here is whether defendant’s juvenile adjudication, which qualified defendant
       for an extended-term sentence, falls within Apprendi’s prior-conviction exception and, in turn,
       the exception in section 111-3(c-5) of the Criminal Code. This question is an issue of first
       impression before this court.
¶ 16        To fully understand Apprendi’s holding, we must examine some of the cases that preceded
       it, namely Almendarez-Torres v. United States, 523 U.S. 224 (1998), and Jones v. United
       States, 526 U.S. 227 (1999). In Almendarez-Torres, the Court first recognized the
       prior-conviction exception. There, the defendant was charged pursuant to a federal statute with
       the offense of illegal reentry to the United States by a deported alien. The offense authorized a
       prison term of up to two years. A subsection of the statute authorized a prison term of up to 20
       years if the defendant had been deported subsequent to a conviction for the commission of an
       aggravated felony. The question before the Court was whether the subsection of the statute
       defined a separate offense or simply authorized an enhanced penalty. Almendarez-Torres, 523
       U.S. at 226. If the prior aggravated felony conviction was a separate offense, the State was
       required to charge the conviction in the indictment (and prove it beyond a reasonable doubt to
       a jury). Id. If the prior conviction merely authorized an enhanced sentence, then the prior
       conviction was not an element of the offense and need not be charged. Id. The Court concluded
       that the subsection was a penalty provision that authorized a court to increase the sentence for
       a recidivist but did not define a separate offense. Id. It reasoned that the relevant statutory
       subject matter at issue was recidivism, which was “as typical a sentencing factor as one might
       imagine.” Id. at 230.
¶ 17        In Jones, the Court considered whether a federal carjacking statute defined three distinct
       offenses or a single offense with a choice of three maximum penalties, two of them dependent
       on sentencing factors “exempt from the requirements of charge and jury verdict.” Jones, 526
       U.S at 229. The statute’s first subsection authorized a maximum sentence of 15 years. The
       second and third subsections authorized maximum sentences of 25 years and life
       imprisonment, respectively, if the carjacking resulted in serious bodily injury or death. The
       Court noted that the second and third subsections provided for “steeply” higher penalties and
       also conditioned these penalties on further facts. It stated that “[i]t is at best questionable
       whether the specification of facts sufficient to increase a penalty range by two-thirds, let alone
       from 15 years to life, was meant to carry none of the process safeguards that elements of an
       offense bring with them for a defendant’s benefit.” Id. at 233. It concluded that the statute

                                                    -5-
       defined three separate offenses with distinct elements, each of which must be charged by
       indictment, proven beyond a reasonable doubt, and submitted to a jury for its verdict. Id. at
       252. In distinguishing its holding from Almendarez-Torres, the Court reiterated that it viewed
       recidivism differently from other factors that enlarge the possible penalty for an offense. The
       Court stated, “One basis for that possible constitutional distinctiveness is not hard to see:
       unlike virtually any other consideration used to enlarge the possible penalty for an offense, and
       certainly unlike the factor before us in this case, a prior conviction must itself have been
       established through procedures satisfying the fair notice, reasonable doubt, and jury trial
       guarantees.” Id. at 249.
¶ 18        Since Apprendi was decided, state and federal courts have not been uniform in concluding
       whether a juvenile adjudication is the equivalent of a prior conviction under Apprendi for
       sentencing purposes. The Ninth Circuit Court of Appeals was the first court to address the
       issue in United States v. Tighe, 266 F.3d 1187 (9th Cir. 2001). In a split decision, the court
       determined that the prior-conviction exception must be limited to prior convictions that were
       themselves obtained through proceedings that included the right to a jury trial and proof
       beyond a reasonable doubt. Id. at 1194. It concluded that juvenile adjudications that do not
       include the right to a jury trial and the reasonable doubt burden of proof do not fall within the
       prior-conviction exception. Id. The court relied on the language in Apprendi that referred to
       accepting the validity of a prior judgment of conviction that was entered in a proceeding in
       which the defendant had the right to a jury trial and the right to require proof of guilt beyond a
       reasonable doubt. Id. It also relied on the language in Jones that prior convictions are distinct
       because they were established through procedures satisfying the fair notice, reasonable doubt,
       and jury trial guarantees. Id. at 1193. The court characterized these constitutional procedural
       safeguards as the “fundamental triumvirate of procedural protections.” Id.
¶ 19        The dissent in Tighe found that the court had reached an “unsupportable conclusion” by
       taking the language in Jones and making a “quantum leap.” Id. at 1200 (Brunetti, J.,
       dissenting). The dissent believed that the language in Jones only stood for the basic proposition
       that Congress had the constitutional power to treat prior convictions as sentencing factors
       subject to a lesser standard of proof because the defendant presumably received all the process
       that was due when he was convicted of the prior crime. Id. It explained that, for adults, such
       process would include the right to a jury trial. For juveniles, however, such process would not
       include that right. Therefore, the dissent concluded that when a juvenile adjudication is the
       result of a proceeding in which a juvenile has received all the process constitutionally due at
       the juvenile stage, there is no constitutional problem in using that adjudication to support a
       later sentencing enhancement. Id.
¶ 20        Since Tighe, numerous courts have had the opportunity to address this issue. As a result,
       there has been more agreement with the Tighe dissent. Agreeing with the Tighe dissent and
       adopting what would become the majority view, in United States v. Smalley, 294 F.3d 1030
       (8th Cir. 2002), the Eighth Circuit Court of Appeals concluded that juvenile adjudications
       could be characterized as “prior convictions” for Apprendi purposes. Id. at 1033. The court
       explained that Apprendi did not preclude such a conclusion, specifically noting “[w]e think
       that while the [Apprendi] Court established what constitutes sufficient procedural safeguards
       (a right to jury trial and proof beyond a reasonable doubt), and what does not (judge-made
       findings under a lesser standard of proof), the Court did not take a position on possibilities that
       lie in between these two poles.” Id. at 1032. Like the Tighe dissent, the court also determined

                                                    -6-
       that the language in Jones that referred to the “ ‘fundamental triumvirate of procedural
       protections’ ” was not intended to define the term “ ‘prior conviction’ ” for constitutional
       purposes as a conviction that “ ‘ha[s] been established through procedures satisfying fair
       notice, reasonable doubt, and jury trial guarantees.’ ” Id. (quoting Tighe, 266 F.3d at 1193-94).
       The court reasoned that the issue “should not turn on the narrow parsing of words, but on an
       examination of whether juvenile adjudications, like adult convictions, are so reliable that due
       process of law is not offended by such an exemption.” Id. at 1033. Noting that the procedural
       protections afforded to juveniles include the right to notice, the right to counsel, the right to
       confront and cross-examine witnesses, the privilege against self-incrimination, and proof of
       guilt beyond a reasonable doubt, it concluded that these safeguards were “more than sufficient
       to ensure the reliability that Apprendi requires.” Id. Specifically addressing the lack of a right
       to a jury for juveniles, the court believed that the lack of such right did not undermine the
       reliability of adjudications in any significant way because the use of a jury in the juvenile
       context is not constitutionally required and, moreover, would not strengthen the fact-finding
       function. Id.
¶ 21       Joining the Eighth Circuit and embracing the majority view that a juvenile adjudication
       falls within the Apprendi prior-conviction exception are the Courts of Appeal for the First,
       Third, Fourth, Sixth, Seventh, and Eleventh Circuits. See United States v. Jones, 332 F.3d 688,
       696 (3d Cir. 2003) (because due process does not require providing juveniles with the right to a
       jury trial, it follows that when a juvenile is adjudicated guilty beyond a reasonable doubt in a
       bench trial that affords all the due process protections that are required, the adjudication can
       properly be characterized as a prior conviction for Apprendi purposes); United States v. Burge,
       407 F.3d 1183, 1191 (11th Cir. 2005) (a prior nonjury juvenile adjudication that was afforded
       all constitutionally required procedural safeguards can be characterized as a prior conviction
       for Apprendi purposes); United States v. Crowell, 493 F.3d 744, 750 (6th Cir. 2007) (the use of
       “procedurally sound” juvenile adjudications to enhance a sentence does not violate due
       process because juvenile adjudication proceedings provide sufficient procedural safeguards to
       satisfy the reliability requirement “that is at the heart of Apprendi”); United States v. Matthews,
       498 F.3d 25, 35 (1st Cir. 2007) (finding no distinction between juvenile adjudications and adult
       convictions for purposes of Apprendi’s prior-conviction exception since both reflect “the sort
       of proven prior conduct that courts historically have used in sentencing”); United States v.
       Wright, 594 F.3d 259, 264 (4th Cir. 2010) (because the defendant received all the process that
       was due at his nonjury juvenile delinquency proceeding, the use of his juvenile adjudication to
       enhance his sentence did not violate Apprendi); Welch v. United States, 604 F.3d 408, 429 (7th
       Cir. 2010) (a prior juvenile adjudication, where the defendant received all the protections to
       which he was constitutionally entitled, is a prior conviction under Apprendi).
¶ 22       State supreme courts that have also joined the majority view are Kansas, Indiana,
       Minnesota, Washington, and California. See State v. Hitt, 42 P.3d 732, 739-40 (Kan. 2002);
       Ryle v. State, 842 N.E.2d 320, 321-23 (Ind. 2005); State v. McFee, 721 N.W.2d 607, 616-19
       (Minn. 2006); State v. Weber, 149 P.3d 646, 653 (Wash. 2006) (en banc); People v. Nguyen,
       209 P.3d 946, 957-58 (Cal. 2009).
¶ 23       Taking a middle ground position is the Supreme Court of Oregon. In State v. Harris, 118
       P.3d 236, 245-46 (Or. 2005) (en banc), the court held that the use of prior juvenile
       adjudications as sentencing factors does not violate the jury trial right guaranteed by the sixth
       amendment. Id. However, the court qualified its holding by stating that the sixth amendment

                                                    -7-
       also requires that when such an adjudication is offered as an enhancement factor to increase a
       criminal sentence, its existence must either be proved to a trier of fact or be admitted by a
       defendant for sentencing purposes following an informed and knowing waiver. Id. at 246.
¶ 24       Agreeing with Tighe and joining the minority viewpoint is the Supreme Court of
       Louisiana. In State v. Brown, 879 So. 2d 1276 (La. 2004), the court held that because juveniles
       do not have a right to a jury trial in juvenile adjudicatory proceedings, juvenile adjudications
       cannot be used to enhance adult felony convictions. Id. at 1288. The court reasoned that
       although juvenile adjudications are sufficiently reliable without a jury trial to support
       dispositions within the juvenile system, those adjudications are not sufficiently reliable under
       Apprendi to support enhanced sentencing for adults. Id. The dissenting justice disagreed,
       concluding that “a fair reading of Apprendi” did not preclude the use of a juvenile adjudication
       to enhance an adult criminal sentence. Id. at 1290-91 (Traylor, J., dissenting). The dissent
       reasoned that when a juvenile adjudication comports with the requirements of fundamental
       fairness as set forth by the Supreme Court, it is constitutionally permissible to use that
       adjudication to enhance an adult criminal sentence. Id. at 1291.
¶ 25       Turning to this court’s case law, although this issue is one of first impression, we did
       acknowledge and briefly discuss the issue in People v. Taylor, 221 Ill. 2d 157 (2006). In
       Taylor, we considered whether a minor who had been adjudicated delinquent was considered a
       “person convicted of a felony” for purposes of the offense of escape as set forth in section
       31-6(a) of the Criminal Code of 1961 (720 ILCS 5/31-6(a) (West 1998)). Ultimately, we
       concluded that for purposes of the escape statute, a juvenile adjudication could not be
       considered tantamount to a felony conviction. Taylor, 221 Ill. 2d at 170. Relevant here is our
       statement that the issue addressed in Taylor was “to be distinguished from the somewhat
       analogous issue of whether a juvenile adjudication is considered a ‘prior conviction’ for
       sentencing enhancement purposes under Apprendi.” Id. at 173. We noted the split among the
       federal circuits in addressing this issue and stated “[w]e take no position here with respect to
       the division among the federal circuits.” Id. at 175. Although Taylor included a brief
       discussion of the issue we address in this appeal, it is clear that our holding in Taylor is distinct
       from the question now presented, and our conclusion in Taylor has no bearing on our analysis
       here.
¶ 26       Thus, we turn to the Supreme Court’s decision in McKeiver v. Pennsylvania, 403 U.S. 528
       (1971) (plurality opinion). In McKeiver, the Supreme Court held that there is no constitutional
       right to a jury trial in juvenile adjudicatory proceedings. Id. at 545. The Court reasoned that
       “[t]he imposition of the jury trial on the juvenile court system would not strengthen greatly, if
       at all, the factfinding function, and would, contrarily, provide an attrition of the juvenile
       court’s assumed ability to function in a unique manner.” Id. at 547.
¶ 27       In Illinois, article V of the Juvenile Court Act of 1987 (Juvenile Court Act) (705 ILCS
       405/5-101 et seq. (West 2010)) governs juvenile delinquency proceedings. It aims to balance a
       community’s interest in holding juveniles accountable for their unlawful conduct with
       attempting to rehabilitate those juveniles. In re Rodney H., 223 Ill. 2d 510, 520 (2006). The
       “important purposes” of article V are to protect citizens from juvenile crime, hold each
       juvenile offender directly accountable for his or her acts, provide an individualized assessment
       of each alleged and adjudicated delinquent juvenile in order to rehabilitate and to prevent
       further delinquent behavior, and provide due process as required by the Constitutions of the


                                                     -8-
       United States and the State of Illinois. 705 ILCS 405/5-101(1) (West 2010). Further, article V
       provides that “minors shall have all the procedural rights of adults in criminal proceedings,
       unless specifically precluded by laws that enhance the protection of such minors,” except that
       “[m]inors shall not have the right to a jury trial unless specifically provided by this Article.”
       705 ILCS 405/5-101(3) (West 2010). Article V only provides the right to a jury trial when a
       minor is tried (1) as a habitual juvenile offender (705 ILCS 405/5-815(d) (West 2010)), (2) as a
       violent juvenile offender (705 ILCS 405/5-820(d) (West 2010)), or (3) under the extended
       juvenile jurisdiction provision (705 ILCS 405/5-810 (West 2010)). Because defendant’s
       delinquency proceedings did not involve any of the above provisions, he did not have the right
       to a jury trial in those proceedings.
¶ 28        Here, we find the majority position persuasive and conclude that a prior juvenile
       adjudication of delinquency falls within Apprendi’s prior-conviction exception and the
       exception in section 111-3(c-5) of the Criminal Code. The Supreme Court made clear in
       McKeiver that due process does not require the right to a jury trial in juvenile proceedings,
       reasoning that a jury trial “would not strengthen greatly, if at all, the factfinding function.”
       McKeiver, 403 U.S. at 545-47. In Almendarez-Torres, the Court repeatedly emphasized the
       tradition of regarding recidivism as a sentencing factor, and in Jones, the Court explained that
       a prior conviction was different from other factors that increase the sentence for an offense
       because of the procedural safeguards inherent in the proceedings that resulted in that
       conviction. Almendarez-Torres, 523 U.S. at 230; Jones, 526 U.S. at 249. The Court solidified
       those holdings in Apprendi, further noting the “vast” difference between accepting the validity
       of a prior conviction and allowing a judge to find a required fact under a lesser standard of
       proof. Apprendi, 530 U.S. at 496.
¶ 29        A juvenile adjudication of delinquency is similar to a prior conviction in the sense that both
       are the result of a person’s prior unlawful behavior or recidivism. The proceedings that result
       in a juvenile adjudication contain the same constitutional procedural safeguards as those
       proceedings that result in a prior conviction, except the jury trial right (unless specified by
       article V of the Juvenile Court Act). However, because there is no constitutional right to a jury
       trial in juvenile proceedings, a juvenile adjudication and a prior conviction both result from
       proceedings in which the minor or the defendant received constitutionally sufficient
       procedural safeguards. A juvenile adjudication, therefore, is no less valid or reliable a form of
       recidivism than is a prior conviction. For purposes of extended-term sentencing, they are on
       equal footing. Though defendant did not have the right to a jury trial in his delinquency
       proceedings, he did have all the other procedural rights of adults in criminal proceedings, such
       as the right to notice, counsel, confrontation, cross-examination, and proof of guilt beyond a
       reasonable doubt. See 705 ILCS 405/5-101(3), 5-525, 5-530, 5-605, 5-610 (West 2010). The
       presence of such process in juvenile proceedings forecloses any conclusion that a juvenile
       adjudication is not the equivalent of a prior conviction under Apprendi. We note the following
       reasoning of the Fourth Circuit. In Wright, the court stated, “there is no reason to hold that an
       adjudication that is constitutionally sufficient to commit a juvenile to confinement, in some
       instances until age twenty-one, is somehow off limits for sentencing consideration if the same
       juvenile later [commits an offense as an adult].” Wright, 594 F.3d at 264. While the Juvenile
       Court Act promotes accountability as well as rehabilitation, section 5-5-3.2(b)(7) of the Code
       of Corrections anticipates that those juveniles who are not rehabilitated and commit crimes as
       adults may be punished in accordance with their entire criminal history. Considering a

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       defendant’s entire recidivist past is in no way incongruent with the aims of the Juvenile Court
       Act.
¶ 30        Moreover, we do not believe that the Supreme Court’s language in Apprendi and Jones that
       referred to the jury trial right was intended to include only those prior convictions that included
       that right. The Apprendi Court noted the jury trial right as one of the procedural safeguards that
       assured the validity of a prior conviction, but it did not specifically condition the
       prior-conviction exception upon that right. Apprendi, 530 U.S. at 496. Nor did it specifically
       identify a jury trial as a required procedural safeguard. We agree with the Eighth Circuit’s view
       that “while the [Apprendi] Court established what constitutes sufficient procedural safeguards
       (a right to jury trial and proof beyond a reasonable doubt), and what does not (judge-made
       findings under a lesser standard of proof), the Court did not take a position on possibilities that
       lie in between these two poles.” Smalley, 294 F.3d at 1032.
¶ 31        We are not persuaded by defendant’s contentions to the contrary. Defendant argues that
       because section 5-5-3.2(b)(7) of the Code of Corrections and section 111-3(c-5) of the
       Criminal Code do not expressly define a prior delinquency adjudication as a prior conviction,
       defendant’s prior adjudication does not fall within Apprendi’s prior-conviction exception. He
       maintains that although section 5-5-3.2(b)(7) of the Code of Corrections allows a court to use
       an adult offender’s prior delinquency adjudication for a Class X or Class 1 felony as a basis for
       imposing an extended-term sentence, the statute is silent as to the manner in which the prior
       adjudication must be pled or proven. Defendant relies on case law for support as well as the
       Sex Offender Registration Act (Registration Act) (730 ILCS 150/1 et seq. (West 2010)),
       wherein the legislature expressly equated a juvenile adjudication with a conviction. 730 ILCS
       150/2 (West 2010).
¶ 32        We find defendant’s reliance on case law and the Registration Act misplaced. He relies on
       People v. Villa, 2011 IL 110777, where we rejected the State’s argument that juvenile
       adjudications should be put on equal footing with criminal convictions for impeachment
       purposes, and In re W.W., 97 Ill. 2d 53 (1983), where we determined that a conviction was not
       the same as a juvenile adjudication for purposes of a statute authorizing State’s Attorney fees
       to defend an appeal. Villa, 2011 IL 110777, ¶ 40; In re W.W., 97 Ill. 2d at 57-58.2 However,
       both Villa and In re W.W. involved the interpretation of statutes, which has no bearing on the
       issue presented here. We reiterate that in Taylor we made clear that our interpretation of the
       phrase “person convicted of a felony” for purposes of the offense of escape was to be
       distinguished from the issue of whether a juvenile adjudication is considered a prior conviction
       for sentencing enhancement purposes under Apprendi. Likewise, regarding defendant’s
       reliance on the Registration Act, the fact that the legislature expressly equated a juvenile
       adjudication with a conviction in that statute also has no bearing on the issue presented here.
       Further, the purpose of the amendment to section 111-3(c-5) of the Criminal Code was to
       codify Apprendi’s holding to bring the Criminal Code into conformity with Apprendi. Thus,
       we reject defendant’s contention that because section 5-5-3.2(b)(7) of the Code of Corrections
       and section 111-3(c-5) of the Criminal Code do not expressly define a juvenile adjudication as


           2
            Defendant also relies on People v. Rankin, 297 Ill. App. 3d 818 (1998); however, he concedes that
       due to an amendment to the sentencing statute, it does not address the issue presented here. Therefore,
       we need not address it.

                                                     - 10 -
       a prior conviction, his prior adjudication does not fall within Apprendi’s prior-conviction
       exception.
¶ 33       We conclude that defendant’s prior juvenile adjudication, which qualified defendant for an
       extended-term sentence, is the equivalent of a prior conviction under Apprendi and falls within
       Apprendi’s prior-conviction exception as well as the exception in section 111-3(c-5) of the
       Criminal Code. The State was not required to allege the fact of his juvenile adjudication in the
       indictment or prove its existence beyond a reasonable doubt. Since we find that no error
       occurred here, defendant cannot establish plain error.

¶ 34                                         B. Defendant’s PSI
¶ 35       We next consider whether the information contained in defendant’s PSI established that he
       had been adjudicated delinquent of residential burglary. Defendant contends that the
       information contained in the PSI was “too ambiguous, and too tenuous, to conclusively
       establish” that he had been adjudicated delinquent of residential burglary. He argues that his
       PSI suffered from the same infirmities as the documents found unreliable in Shepard.
¶ 36       The issue in Shepard concerned what sources a court may constitutionally rely upon in its
       role as fact finder at sentencing. In Shepard, the United States Supreme Court held that a court
       sentencing a defendant under the Armed Career Criminal Act of 1984 (ACCA) (18 U.S.C.
       § 924(e) (2006)), which is thus required to determine whether a burglary is a “generic
       burglary” under the statute, is generally limited to examining the statutory definition, charging
       document, written plea agreement, transcript of plea colloquy, and any explicit factual finding
       by the trial judge to which the defendant assented. Shepard, 544 U.S. at 16. A sentencing judge
       may not look to police reports or complaint applications to make the determination. Id.
¶ 37       This court has previously held that a PSI is generally a reliable source for the purpose of
       inquiring into a defendant’s criminal history. People v. Williams, 149 Ill. 2d 467, 491 (1992).
       A PSI is compiled pursuant to statutory guidelines set forth in the Code of Corrections, which
       require the inclusion of certain information, including the defendant’s “history of
       delinquency.” 730 ILCS 5/5-3-2(a)(1) (West 2010). Additionally, the Juvenile Court Act
       permits juvenile court records to be accessed under certain circumstances, including when a
       minor becomes 18 years or older and is the subject of criminal proceedings. 705 ILCS
       405/1-8(A)(4)(d) (West 2014).
¶ 38       We initially note that the accuracy of the PSI with regard to defendant’s prior adjudication
       for residential burglary was not disputed at the sentencing hearing. Defense counsel only
       sought to amend the PSI to include defendant’s claim that he was a father, which the PSI did
       not reflect. An extensive discussion thus ensued as to whether defendant could have been the
       father of a recently born child based on the dates of his incarceration. However, there was no
       question or discussion as to defendant’s criminal history as set forth in the PSI, despite several
       references that defendant was eligible for an extended-term sentence based on his prior
       juvenile adjudication for residential burglary. Although defendant points out that prior to trial
       he denied having a prior adjudication for residential burglary, he clearly abandoned that claim
       at sentencing. Had defendant continued to believe he did not have a prior adjudication for
       residential burglary, he certainly knew how to inform defense counsel and the court as to the
       alleged inaccuracy of the PSI, as he did with his claim that he was a father.



                                                   - 11 -
¶ 39       Here, we find that defendant’s PSI established he had been adjudicated delinquent of
       residential burglary. As set forth above, the PSI provided that in 2005, defendant had been
       adjudicated delinquent of the offenses alleged in the numerous petitions, including a
       supplemental petition alleging three counts of residential burglary, and had been sentenced to
       probation until his twenty-first birthday for the aforementioned offenses. In addition to the
       above language, the PSI enumerated each of the offenses alleged in the petitions and listed a
       disposition next to each one. The disposition for each of the offenses, which included the three
       counts of residential burglary, was “Juvenile Probation.” As the appellate court aptly found,
       defendant’s PSI was “unequivocal” with respect to his prior juvenile adjudication. We disagree
       with defendant that the information contained in the PSI was ambiguous or tenuous.
¶ 40       Further, the use of defendant’s PSI does not run afoul of Shepard. The Court in Shepard
       was concerned with what types of documents a court can rely upon at sentencing to determine
       the facts about a conviction, rather than determining if the defendant had a prior conviction.
       Shepard, 544 U.S. at 25-26. Here, the circuit court only recognized that defendant had a prior
       adjudication for residential burglary; it did not engage in any judicial fact finding about that
       adjudication. Additionally, a PSI is of a markedly different character than a police report or
       complaint application, with which the Court in Shepard was concerned. As noted above, a PSI,
       with its statutorily mandated requirements, is generally viewed as a reliable source of a
       defendant’s criminal history. We conclude that defendant’s PSI conclusively established he
       had been adjudicated delinquent of residential burglary and find no error in the court’s reliance
       on the PSI. Accordingly, since there is no error, there can be no plain error and no basis to
       excuse defendant’s procedural default. See, e.g., People v. Ceja, 204 Ill. 2d 332, 356 (2003);
       People v. Sims, 192 Ill. 2d 592, 624 (2000).

¶ 41                                       III. CONCLUSION
¶ 42       We conclude that defendant’s prior juvenile adjudication is the equivalent of a prior
       conviction under Apprendi and falls within Apprendi’s prior-conviction exception, as well as
       the exception in section 111-3(c-5) of the Criminal Code, and that defendant’s PSI
       conclusively established the fact of his prior juvenile adjudication for residential burglary. For
       the foregoing reasons, we affirm the judgment of the appellate court.

¶ 43      Appellate court judgment affirmed.

¶ 44       JUSTICE BURKE, dissenting:
¶ 45       Defendant’s principal argument in this appeal is that his extended-term sentence was
       imposed in violation of section 111-3(c-5) of the Code of Criminal Procedure of 1963 (725
       ILCS 5/111-3(c-5) (West 2010)) because the sentence was based, in part, on a prior juvenile
       delinquency adjudication which was neither pled in the indictment nor proved to the jury
       beyond a reasonable doubt. I agree. For this reason I cannot join the majority opinion and,
       therefore, must respectfully dissent.

¶ 46                                                 I
¶ 47      There is no dispute that, under Illinois law, a trial court may use an adult offender’s prior
       juvenile delinquency adjudication as a factor to consider when deciding whether to impose an

                                                   - 12 -
       extended-term sentence, so long as the adjudication involved an act that, if committed by an
       adult, would be a Class X or Class 1 felony and the conviction occurred within 10 years after
       the adjudication. 730 ILCS 5/5-5-3.2(b)(7) (West 2010). What is at issue in this appeal is the
       manner in which the prior adjudication must be pled or proven before it may be used by the
       trial court in this way.
¶ 48        In Apprendi v. New Jersey, 530 U.S. 466 (2000), the United States Supreme Court held that
       the due process clause of the fourteenth amendment requires any fact that increases the penalty
       for a crime beyond the prescribed statutory maximum, other than the fact of a “prior
       conviction,” to be submitted to a jury and proved beyond a reasonable doubt. Id. at 476, 490.
       After Apprendi was decided, the General Assembly enacted section 111-3(c-5) of the Code of
       Criminal Procedure of 1963 (725 ILCS 5/111-3(c-5) (West 2010)) to bring our state law into
       conformity with Apprendi’s constitutional requirements.
¶ 49        Section 111-3(c-5) provides, in pertinent part:
                “[I]f an alleged fact (other than the fact of a prior conviction) is not an element of an
                offense but is sought to be used to increase the range of penalties for the offense beyond
                the statutory maximum that could otherwise be imposed for the offense, the alleged
                fact must be included in the charging instrument or otherwise provided to the defendant
                through a written notification before trial, submitted to a trier of fact as an aggravating
                factor, and proved beyond a reasonable doubt.”
¶ 50        Both Apprendi and section 111-3(c-5) explicitly exempt only “prior convictions” from
       those facts that must be pled in the charging instrument and proved beyond a reasonable doubt
       before they can be used as an aggravating factor to increase the penalty for an offense. Neither
       Apprendi nor section 111-3(c-5) makes any mention of prior juvenile delinquency
       adjudications.
¶ 51        Before this court, defendant contends that a juvenile delinquency adjudication is not a
       “conviction” within the meaning of section 111-3(c-5). Therefore, defendant maintains, a trial
       court may only base an extended-term sentence on a prior adjudication if that adjudication was
       included in the charging instrument and proved to the fact finder beyond a reasonable doubt. In
       this case, however, defendant’s prior adjudication was referenced only in a presentencing
       investigative report. Accordingly, defendant asserts that the trial court violated section
       111-3(c-5) and committed plain error when it imposed an extended-term sentence.
¶ 52        Defendant’s argument raises a question of statutory construction. When construing a
       statute, we first look to the language of the statute itself, which is the surest and most reliable
       indicator of the legislature’s intent. People v. Pullen, 192 Ill. 2d 36, 42 (2000). The language of
       the statute must be given its plain and ordinary meaning, and where the statutory language is
       clear and unambiguous, we may not resort to other aids of construction. People v. Taylor, 221
       Ill. 2d 157, 162 (2006); People v. Tucker, 167 Ill. 2d 431, 435 (1995). In addition, this court
       may not correct what we believe to be a legislative oversight by rewriting a statute in a manner
       inconsistent with its clear and unambiguous language under the guise of statutory
       interpretation. Taylor, 221 Ill. 2d at 162-63; Pullen, 192 Ill. 2d at 42.
¶ 53        In construing the term “conviction” in section 111-3(c-5), we do not write on a clean slate.
       Illinois courts have long held that, when used in a statutory enactment, the word “conviction”
       does not include juvenile adjudications. For example, in In re W.W., 97 Ill. 2d 53 (1983), this
       court held that section 8 of “An Act concerning fees and salaries, and to classify the several

                                                    - 13 -
       counties of this state with reference thereto” (Ill. Rev. Stat. 1979, ch. 53, ¶ 8), which provided
       that State’s Attorney fees are to be taxed as costs and collected from the “defendant” upon
       “conviction,” had no application to juvenile proceedings. In so holding, this court concluded
       that “a minor is neither ‘convicted’ nor considered a ‘defendant’ or an ‘accused.’ ” In re W.W.,
       97 Ill. 2d at 57.
¶ 54        Similarly, in People v. Rankin, 297 Ill. App. 3d 818 (1998), our appellate court found no
       authority for a trial court to impose an extended-term sentence based on the defendant’s
       juvenile adjudication under the then-existing version of the statute. The court reached this
       conclusion because juvenile proceedings are not criminal and a juvenile adjudication does not
       constitute a conviction. Id. at 824-25.
¶ 55        In People v. Taylor, 221 Ill. 2d 157 (2006), this court considered whether a minor who had
       been adjudicated delinquent for a felony offense could be considered a “person convicted of a
       felony” for purposes of our escape statute (720 ILCS 5/31-6(a) (West 1998)). In our discussion
       in Taylor, we distinguished the issue that was then before us from “the somewhat analogous
       issue of whether a juvenile adjudication is considered a ‘prior conviction’ for sentencing
       enhancement purposes under Apprendi v. New Jersey, 530 U.S. 466 *** (2000).” Taylor, 221
       Ill. 2d at 173. We said:
                    “We take no position here with respect to the division among the federal circuits.
                We only discuss the jurisprudence on the use of nonjury juvenile adjudications for
                Apprendi purposes because we find it helpful to our analysis to illustrate the important
                differences between the case before us and the federal cases cited above. In each of the
                federal cases, a statute specifically defined a ‘conviction’ as a prior juvenile
                adjudication for purposes of the offense at issue. Here, in contrast, the legislature has
                not defined the term ‘conviction’ in the escape statute to include juvenile adjudications.
                Moreover, the key issue in the present case involves proof of a prior conviction as an
                element of the offense where the applicable statute fails to define an ‘adjudication’ as a
                ‘conviction.’ Thus, the primary issue here turns on a question of statutory construction,
                while the principal issue in the federal cases turned on whether an adjudication could
                be classified as a prior conviction for Apprendi purposes, not on whether it could be
                classified as a ‘conviction’ for purposes of establishing an element of an offense. The
                distinction is critical, of course, because nothing in a penal statute may be construed
                against a defendant by intendment or implication ([People v. Laubscher, 183 Ill. 2d
                330, 337 (1998)]).” (Emphasis in original.) Id. at 175-76.
       Citing In re W.W. and Rankin, we then went on to state the governing rule:
                    “In the absence of a statute expressly defining a juvenile adjudication as a
                conviction, Illinois courts have consistently held that juvenile adjudications do not
                constitute convictions.” Id. at 176.
¶ 56        Finally, and more recently, in People v. Villa, 2011 IL 110777, this court held that a
       juvenile adjudication was inadmissible against a testifying defendant for impeachment
       purposes. This conclusion rested, in part, on the fact that a juvenile adjudication is not the same
       as a criminal conviction. Id. ¶ 40.
¶ 57        Section 111-3(c-5) exempts only “convictions” from those facts that must be pled in the
       indictment and proved beyond a reasonable doubt before they can be used as an aggravating



                                                   - 14 -
       factor to increase the penalty for an offense. Under long-standing case law, a juvenile
       delinquency adjudication is not a “conviction.”
¶ 58       Further, it is worth noting that the General Assembly may have had good reason for
       treating juvenile adjudications differently than adult convictions under section 111-3(c-5).
       Requiring a juvenile adjudication to be pled and proven to a jury before it may be considered
       for extended-term sentencing provides the sentencing judge with additional information
       regarding the nature of the prior offense, including, in particular, the extent of the juvenile’s
       culpability. See, e.g., Miller v. Alabama, 567 U.S. ___, 132 S. Ct. 2455 (2012) (noting the lack
       of maturity and diminished culpability of juveniles). In this way, the sentencing judge can
       make a more informed decision as to whether extended-term sentencing should be imposed on
       the adult offender.
¶ 59       Since section 111-3(c-5) does not equate juvenile adjudications with criminal convictions,
       the requirements of the statute had to be met before defendant’s juvenile adjudication could be
       considered by the trial court in imposing an extended-term sentence. This means that the fact
       of the defendant’s qualifying juvenile adjudication had to be included in the charging
       instrument or otherwise provided to the defendant through a written notification before trial,
       submitted to the trier of fact as an aggravating factor, and proved beyond a reasonable doubt.
       That did not occur here. In my view, the imposition of defendant’s extended-term sentence
       under these circumstances constituted plain error.

¶ 60                                                  II
¶ 61       Despite the foregoing, the majority holds that a juvenile adjudication is a “conviction”
       within the meaning of section 111-3(c-5). Supra ¶ 33. Notably, however, the majority reaches
       this conclusion without ever conducting any statutory analysis. Instead, the majority’s
       determination is based solely on their examination of cases from other jurisdictions, both
       federal and state, which have considered whether, under Apprendi, it would violate a
       defendant’s due process rights to treat a juvenile adjudication like a “prior conviction” and
       exempt the adjudication from Apprendi’s pleading and proof requirements.
¶ 62       After reviewing the split of authority on this issue, the majority agrees with the line of
       cases which holds that, even though a juvenile offender is not afforded the right to a jury trial,
       juvenile adjudications may be treated like “prior convictions” for Apprendi purposes because
       juvenile adjudications, like adult convictions, are sufficiently reliable so that due process is not
       offended by such an exemption. See, e.g., United States v. Smalley, 294 F.3d 1030, 1033 (8th
       Cir. 2002). Having adopted this view, the majority then reasons that, because it would not
       violate defendant’s due process rights to treat a juvenile adjudication like a “prior conviction,”
       then it must follow that juvenile adjudications are included within the “prior conviction”
       exception in section 111-3(c-5). Supra ¶¶ 15, 33. I disagree.
¶ 63       The majority appears to be laboring under the misconception that a finding that it would
       not violate due process to treat a juvenile adjudication like a “prior conviction” under Apprendi
       means that an adjudication is equivalent to a conviction under section 111-3(c-5). But this is
       not true. Whether treating defendant’s prior delinquency adjudication like a conviction for
       purposes of the Apprendi exception violates due process concerns is a separate question from
       whether our legislature intended the term “conviction” in our statutory provision to include a
       juvenile adjudication. Or, stated otherwise, it is one thing to say that a certain practice does not


                                                    - 15 -
       violate due process; it is a completely different thing to say that the practice was authorized by
       our legislature in the first place.
¶ 64       Furthermore, as a general principle, courts of this state rely, whenever possible, on
       nonconstitutional grounds to decide cases (Mulay v. Mulay, 225 Ill. 2d 601 (2007) (citing In re
       E.H., 224 Ill. 2d 172, 178 (2006) (listing cases))). The majority should therefore have
       considered first whether a juvenile adjudication may be deemed a “conviction” for purposes of
       section 111-3(c-5), as a matter of statutory interpretation, before determining whether
       defendant’s due process rights were violated under Apprendi.
¶ 65       In Illinois, the rule is clear that, for statutory purposes, the term “conviction” does not
       include juvenile delinquency adjudications. It follows, therefore, that a juvenile adjudication is
       not a “conviction” within the meaning of section 111-3(c-5). Whether it would violate due
       process to base an extended-term sentence on a juvenile adjudication, as was done in this case,
       is an important issue. However, until such time as the General Assembly actually authorizes
       that practice under section 111-3(c-5), there is no need to reach the issue.
¶ 66       For the reasons set forth above, I dissent.
¶ 67       CHIEF JUSTICE GARMAN and JUSTICE KILBRIDE join in this dissent.




                                                   - 16 -
