                                       2014 IL App (3d) 110467-B

                               Opinion filed February 4, 2014
     _____________________________________________________________________________

                                                 IN THE

                                  APPELLATE COURT OF ILLINOIS

                                           THIRD DISTRICT

                                                A.D., 2014

     In re ANTOINE B.,                      )     Appeal from the Circuit Court
                                            )     of the 10th Judicial Circuit,
            a Minor                         )     Peoria County, Illinois.
                                            )
     (The People of the State of Illinois,  )
                                            )
            Petitioner-Appellee,            )     Appeal No. 3-11-0467
                                            )     Circuit No. 11-JD-96
            v.                              )
                                            )
     Antoine B.,                            )     The Honorable
                                            )     Chris L. Fredericksen,
            Respondent-Appellant).          )     Judge, presiding.
     _____________________________________________________________________________

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

                                                OPINION

¶1          Respondent, Antoine B., was adjudicated delinquent for two counts of felony theft (720

     ILCS 5/16-1(a)(1)(A), (b)(2) (West 2010)) and committed to the Department of Juvenile Justice

     (DOJJ) for an indeterminate term not to exceed three years. Respondent appealed, arguing that

     the commitment to the DOJJ was excessive. We affirmed the trial court's judgment. In re

     Antoine B., 2013 IL App (3d) 110467-U, ¶¶ 14, 17. Pursuant to a supervisory order from the

     supreme court, we subsequently withdrew our decision and directed the parties to file
     supplemental briefing on the issue of whether respondent's felony adjudications were void under

     the supreme court's decision in People v. Taylor, 221 Ill. 2d 157, 182 (2006), which held that a

     prior felony juvenile adjudication was not a prior felony conviction for purposes of the escape

     statute. In re Antoine B., No. 116538 (Ill. Oct. 2, 2013). Upon consideration of the supplemental

     briefing, we find that: (1) respondent's current juvenile adjudications for felony theft are not void

     but should be reduced to misdemeanor theft adjudications; (2) the dispositional order committing

     respondent to the DOJJ is not an authorized disposition for misdemeanor offenses and is void;

     and (3) this case should be remanded so that the previous orders may be amended in the trial

     court to indicate that respondent was adjudicated delinquent for two counts of misdemeanor theft

     and so that the trial court may conduct a new dispositional hearing to determine the appropriate

     disposition for respondent based upon the two charges of misdemeanor theft. Therefore, we

     vacate the trial court's commitment order and remand this case with directions for further

     proceedings.

¶2                                                 FACTS

¶3          In March 2011, a juvenile delinquency petition was filed charging the then-14-year-old

     respondent with two counts of Class 4 felony theft for stealing two bicycle lights. The charges

     were elevated to felonies because respondent had a prior juvenile delinquency adjudication for

     theft (see 720 ILCS 5/16-1(b)(2) (West 2010)). At a plea hearing, respondent admitted the

     allegations of the petition and was adjudicated delinquent. Following a dispositional hearing,

     respondent was committed to the DOJJ for an indeterminate term not to exceed three years. He

     filed a direct appeal, alleging that the commitment to the DOJJ was excessive. We affirmed the

     trial court's judgment. Antoine B., 2013 IL App (3d) 110467-U, ¶¶ 14, 17. Respondent

     subsequently filed a motion asking this court to withdraw its decision and to allow supplemental

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     briefing. In that motion, respondent alleged for the first time that his felony theft adjudications

     were void pursuant to Taylor. We denied respondent's motion. Respondent filed a petition for

     leave to appeal (PLA) to the supreme court. The supreme court denied respondent's PLA but

     entered a supervisory order directing this court to allow the supplemental briefing on the Taylor

     issue. We withdrew our decision and directed the parties to file the supplemental briefing.

¶4                                               ANALYSIS

¶5          In his supplemental briefing, respondent argues that his juvenile delinquency

     adjudications for felony theft are void and that they should be vacated outright. Respondent

     asserts that the two theft charges in the instant case were elevated from misdemeanors to felonies

     based upon his prior juvenile adjudication for theft, which was used as an element of the current

     offenses, and that under Taylor and the rules of statutory construction, such an enhancement is

     impermissible because a prior adjudication for theft does not constitute a prior conviction for

     purposes of section 16-1(b)(2) of the theft statute (720 ILCS 5/16-1(b)(2) (West 2010)). The

     State agrees that a prior juvenile adjudication for theft does not constitute a prior conviction for

     purposes of section 16-1(b)(2) but argues, nevertheless, that respondent's two theft adjudications

     are not void and should merely be reduced to misdemeanor theft adjudications, rather than

     vacated outright. The State asserts that the theft adjudications are not void because a prior theft

     conviction (the prior adjudication in this case) was not an element of the two theft offenses but,

     rather, was used only to elevate the two charges from misdemeanors to felonies.

¶6          Issues of statutory construction, such as the one in the present case, are subject to de novo

     review on appeal. People v. Baskerville, 2012 IL 111056, ¶ 18. The fundamental rule of

     statutory construction is to ascertain and give effect to the intent of the legislature. Id. The most

     reliable indicator of that intent is the plain and ordinary meaning of the language of the statute

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     itself. Id. In determining the plain meaning of statutory terms, a court should consider the

     statute in its entirety and keep in mind the subject the statute addresses and the apparent intent of

     the legislature in enacting the statute. Id.; 5 ILCS 70/1.01 (West 2010). In addition, if the statute

     is a criminal or penal one, it must be strictly construed in favor of the defendant. People ex rel.

     Gibson v. Cannon, 65 Ill. 2d 366, 370-71 (1976). When the language of a statute is clear and

     unambiguous, the statute must be applied as written, without resorting to further aids of statutory

     construction. People v. Dabbs, 239 Ill. 2d 277, 287 (2010). A court may not depart from the

     plain language of the statute and read into it exceptions, limitations, or conditions that are not

     consistent with the express legislative intent. Baskerville, 2012 IL 111056, ¶ 18. However, if

     the language of a statute is ambiguous in that it is susceptible to more than one reasonable

     interpretation, a court may consider extrinsic aids to determine the meaning of the statutory

     language. See Williams v. Illinois State Scholarship Comm'n, 139 Ill. 2d 24, 51 (1990).

¶7          The theft statute in effect at the time that the offenses in the instant case were committed

     provided, in relevant part, as follows:

                "(b) Sentence.

                                                           ***

                        (2) A person who has been convicted of theft of property not from the person

                    and not exceeding $500 in value who has been previously convicted of any type

                    of theft *** is guilty of a Class 4 felony. When a person has any such prior

                    conviction, the information or indictment charging that person shall state such

                    prior conviction so as to give notice of the State's intention to treat the charge as a

                    felony. The fact of such prior conviction is not an element of the offense and may



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                    not be disclosed to the jury during trial unless otherwise permitted by issues

                    properly raised during such trial." 720 ILCS 5/16-1(b)(2) (West 2010).

     The question in this case is whether, as a matter of statutory construction, respondent's prior

     juvenile adjudication for theft constitutes a prior theft conviction for purposes of section 16-

     1(b)(2) that would allow for the elevation of the current theft charges from misdemeanor to

     felony theft charges.

¶8          Our supreme court considered a similar issue in Taylor. See Taylor, 221 Ill. 2d at 159.

     In the Taylor case, a 16-year-old defendant was charged with attempted escape (720 ILCS 5/31-

     6(a) (West 1998)) and certain other related offenses for escaping from his cell at a juvenile

     temporary detention center in Cook County. Taylor, 221 Ill. 2d at 159-60. The defendant's case

     was transferred to adult court. Id. One of the elements of the attempted escape charge that the

     State had to prove was that at the time of the attempted escape, the defendant was a person who

     had been convicted of a felony. Id. at 160-61, 163. To prove that element, the State presented

     evidence that the defendant had been previously adjudicated delinquent for robbery and had been

     committed to the juvenile division of the Department of Corrections and was awaiting transfer to

     a facility when the escape occurred. Id. at 160. After the defendant was convicted of attempted

     escape and sentenced, he appealed. Id. The appellate court reversed defendant's conviction,

     concluding that the defendant's prior felony juvenile delinquency adjudication was not a prior

     felony conviction for purposes of the escape statute. Id. at 160-61. On appeal from the State, the

     supreme court found that because of the differences involved in a juvenile proceeding and an

     adult proceeding and because of the safeguards necessary before an adult may be convicted of a

     felony, a prior juvenile delinquency adjudication for a felony offense did not constitute a prior

     felony conviction for purposes of the escape statute. Id. at 163-82.

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¶9            In the present case, however, unlike in Taylor, a prior conviction is not an element of the

       two theft offenses of which respondent was adjudicated delinquent. See 720 ILCS 5/16-1(b)(2)

       (West 2010); Illinois Pattern Jury Instructions, Criminal, No. 13.05, Committee Note (4th ed.

       2000). In fact, the theft statute specifically indicates that the prior conviction is not an element

       of the offense. See 720 ILCS 5/16-1(b)(2) (West 2010). Thus, while we recognize the

       similarities between Taylor and the instant case, we do not believe that Taylor controls here or

       that it requires that respondent's current adjudications be found void. Rather, we believe that the

       appropriate result is for the juvenile adjudications to be reduced from felony theft offenses to

       misdemeanor theft offenses. See People v. Kelly, 66 Ill. App. 2d 204, 208-12 (1965) (where the

       value of the stolen property in a theft case was not proven to be over $150 and the value was not,

       at that time, an element of the offense but, rather, was only determinative of the proper range of

       punishment, the appropriate remedy was for the court to reduce the punishment involved to a

       level appropriate for a theft in which the value of the stolen property did not exceed $150).

       Therefore, we remand this case for the trial court to amend its prior orders to reflect that

       respondent has been adjudicated delinquent for two counts of misdemeanor theft in the instant

       case, rather than two counts of felony theft. The trial court is also required to vacate its

       dispositional order committing respondent to the DOJJ, which is not an authorized disposition

       for misdemeanor offenses in a juvenile case (see 705 ILCS 405/5-710(1)(b) (West 2010)), and to

       hold a new dispositional hearing to determine the appropriate disposition for respondent in this

       case based upon the two misdemeanor theft charges.

¶ 10                                             CONCLUSION

¶ 11          For the foregoing reasons, the judgment of the circuit court of Peoria County is vacated in

       part and the case is remanded with directions.

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¶ 12   Vacated in part and remanded with directions.




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