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                                Appellate Court                           Date: 2017.08.16
                                                                          14:40:28 -05'00'




                     In re Dave L., 2017 IL App (1st) 170152



Appellate Court    In re DAVE L., a Minor (The People of the State of Illinois,
Caption            Petitioner-Appellee, v. Dave L., Respondent-Appellant).



District & No.     First District, Fourth Division
                   Docket No. 1-17-0152


Filed              June 15, 2017
Rehearing denied   July 17, 2017



Decision Under     Appeal from the Circuit Court of Cook County, No. 16-JD-01958; the
Review             Hon. Stuart Lubin, Judge, presiding.



Judgment           Affirmed.


Counsel on         Michael J. Pelletier, Patricia Mysza, and Roxanna A. Mason, of State
Appeal             Appellate Defender’s Office, of Chicago, for appellant.

                   Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg,
                   Miles J. Keleher, and Douglas P. Harvath, Assistant State’s Attorneys,
                   of counsel), for the People.



Panel              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.
¶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 a 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
     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.


                                                 -2-
       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.
¶ 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
       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). Illinois
       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


                                                     -3-
       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
       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 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.



                                                    -4-
                    “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 AUUW.” 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
       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. Illinois
       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 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)(1), (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

                                                    -5-
       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 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 405/5-150(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

                                                   -6-
       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
       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 (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 479-80.
¶ 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
       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).



                                                   -7-
¶ 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 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 469.
¶ 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; 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.
¶ 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

                                                    -8-
                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; 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.
                    “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 [465]___, 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, we again conclude that Chrastka remains
                binding and reject respondent’s eighth amendment challenge to the HJO and VJO
                mandatory sentencing provisions.” Isaiah D., 2015 IL App (1st) 143507, ¶ 56.
       See also Deshawn G., 2015 IL App (1st) 143316, ¶ 53 (following 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 Rodney H., 223
       Ill. 2d at 518).


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               “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 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. ¶ 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 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

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                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).
¶ 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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