                                    2013 IL App (1st) 100866-B

                                                                                  FIFTH DIVISION
                                                                                JANUARY 31, 2014

No. 1-10-0866

                                                               )
In re OMAR M., a Minor                                         )       Appeal from the
                                                               )       Circuit Court of
(The People of the State of Illinois,                          )       Cook County.
              Plaintiff-Appellee,                              )
                                                               )       No. 08 LJ 155
       v.                                                      )
                                                               )       Honorable
Omar M.,                                                       )       Patricia Mendoza,
                Respondent-Appellant).                         )       Judge Presiding.
                                                               )

       PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion.
       Justices Lampkin and Palmer concurred in the judgment and opinion.

                                             OPINION

¶1     Respondent Omar M. was prosecuted, convicted, and sentenced under section 5-810 of

the Juvenile Court Act of 1987 (705 ILCS 405/5-810 (West 2008)), the extended jurisdiction

juvenile prosecutions (EJJ prosecution) statute, for first-degree murder, receiving the maximum

juvenile sentence of incarceration until his twenty-first birthday and a 20-year stayed adult

sentence. On appeal, respondent claimed: (1) that the State’s proffer of evidence for the EJJ

prosecution designation was “untrue” because two of the State’s four eyewitnesses failed to

appear at trial; (2) that the EJJ prosecution statute violates a juvenile respondent’s right to due

process because the EJJ prosecution designation is decided by a judge by a preponderance of the

evidence instead of by a jury beyond a reasonable doubt; and (3) that the EJJ prosecution statute

is unconstitutionally vague. We did not find respondent’s arguments persuasive, and we

affirmed. In re Omar M., 2012 IL App (1st) 100866, ¶ 2.
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¶2     The supreme court subsequently entered a supervisory order directing us to vacate our

judgment and reconsider in light of In re M.I., 2013 IL 113776, to determine whether a different

result is warranted. In re Omar M., No. 115015 (Ill. 2013). After considering the supreme

court’s decision in M.I., our conclusion remains the same, and we continue to affirm.

¶3                                          ANALYSIS

¶4     In M.I., the supreme court considered three issues concerning EJJ prosecutions: (1)

whether the statutory requirement to hold a hearing within 60 days of the filing of an EJJ motion

is mandatory, and the failure to hold such a hearing renders the respondent’s adult sentence void;

(2) whether the EJJ statute is unconstitutionally vague because it does not specify what conduct

results in the revocation of the stay on the adult sentence; and (3) whether the EJJ statute violates

the holding in Apprendi v. New Jersey, 530 U.S. 466 (2000), that the United States Constitution

guarantees that all sentencing enhancements be proven beyond a reasonable doubt. M.I., 2013 IL

113776, ¶ 1. Since the second and third issues were also raised in the instant case, we discuss the

supreme court’s treatment of them here and consider whether they change the outcome in the

instant case.

¶5                                    I. Vagueness Challenge

¶6     First, concerning the respondent’s vagueness challenge, the M.I. court determined that the

respondent lacked standing. M.I., 2013 IL 113776, ¶ 36. The court noted that the State had filed

a petition to revoke the stay of the adult sentence and, “[t]hus, we need not decide whether the

filing of a petition to revoke is necessary in every case for a juvenile to have standing to

challenge the constitutionality of section 5-810(6) of the EJJ statute.” M.I., 2013 IL 113776,


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¶ 33. The court also concluded that it had no need to determine whether the granting of the

petition was necessary for standing, since in the case before it, the respondent would lack

standing even if the petition to revoke had been granted. M.I., 2013 IL 113776, ¶ 33.

¶7     The M.I. court noted that the petition to revoke the stay was based on the respondent’s

commission of a new felony offense and did not concern the violation of any conditions of his

juvenile term. M.I., 2013 IL 113776, ¶ 34. Thus, “if the basis for the respondent’s challenge to

the statute’s constitutionality does not pertain to the basis for the revocation of the adult sentence

contained in the actual petition, respondent will not have standing.” M.I., 2013 IL 113776, ¶ 34.

The court noted that the respondent only argued that the term “ ‘conditions’ ” was vague and did

not argue that the phrase “ ‘new offense’ ” was vague and so did not have standing since the

basis for the constitutional challenge did not pertain to the basis for revocation of the stayed adult

sentence. M.I., 2013 IL 113776, ¶ 36. The court concluded, “We make no determination today

whether a petition to revoke the stay must be granted or even filed to trigger standing, because

respondent has made no showing that the alleged constitutional infirmity, the vagueness of the

term ‘conditions,’ pertains to the part of the statute that affects him.” M.I., 2013 IL 113776, ¶ 36.

¶8     We do not find that the supreme court’s decision in M.I. changes our conclusion in the

instant case. In the case at bar, no petition to revoke respondent’s stayed adult sentence has been

filed (Omar M., 2012 IL App (1st) 100866, ¶ 71) and, as noted, the M.I. court twice specifically

noted that it was not determining whether such a petition was necessary to confer standing (M.I.,

2013 IL 113776, ¶¶ 33, 36). Thus, the supreme court expressly declined to consider the issue

present in the instant case. Additionally, in the case at bar, respondent argued that both the terms


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“conditions” and “offense” were unconstitutionally vague (Omar M., 2012 IL App (1st) 100866,

¶ 83), meaning that respondent challenged both ways that his stay could be revoked. See M.I.,

2013 IL 113776, ¶ 36 (“The EJJ statute allows for two ways in which the stay of the adult

sentence may be revoked: when the convicted minor ‘violate[s] the conditions of his or her

sentence, or is alleged to have committed a new offense.’ (Emphasis added.)” (quoting 705

ILCS 405/5-810(6) (West 2010))). This distinguishes the instant case from M.I., where the

respondent’s petition to revoke named one basis for revocation but the respondent’s

constitutional challenge pertained to the other basis for revocation. M.I., 2013 IL 113776, ¶ 36.

Thus, since the supreme court expressly did not consider the issue in the case at bar, and since

respondent’s arguments here challenge both grounds for revocation, we do not find that the

supreme court’s decision in M.I. changes our analysis concerning respondent’s standing in the

instant case.

¶9                                    II. Apprendi Violation

¶ 10   The M.I. court also considered whether the EJJ prosecution statute was an

unconstitutional violation of Apprendi because the facts that qualify a juvenile for EJJ

prosecution are not required to be proved beyond a reasonable doubt. M.I., 2013 IL 113776,

¶ 38. The court concluded that Apprendi did not apply to the EJJ statute and that, even if it did,

there would be no violation. M.I., 2013 IL 113776, ¶ 48.

¶ 11   In its analysis, the supreme court cited our decision in Omar M. several times

approvingly. See M.I., 2013 IL 113776, ¶¶ 43, 44, 46. It noted that the appellate court had been

uniform in holding that the EJJ statute did not violate Apprendi because “the EJJ statute was not


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an adjudicatory statute, but rather a dispositional one, in that ‘it does not determine a

respondent’s guilt or the specific sentence.’ ” (Emphasis in original.) M.I., 2013 IL 113776, ¶ 43

(quoting Omar M., 2012 IL App (1st) 100866, ¶ 59). The court “agree[d] with the reasoning put

forth by our appellate court,” finding that “[n]othing in the EJJ statute runs afoul of Apprendi.”

M.I., 2013 IL 113776, ¶ 44.

¶ 12   Additionally, the M.I. court found that even if Apprendi applied, there would be no

violation because “for the purposes of Apprendi, the statutory maximum is not the juvenile

sentence under the Juvenile Court Act, but rather the maximum sentence allowed by the offense

committed.” M.I., 2013 IL 113776, ¶ 46 (citing Omar M., 2012 IL App (1st) 100866, ¶ 63).

¶ 13   Thus, since the supreme court’s analysis of the Apprendi issue cited the instant case

approvingly and contained similar reasoning, we cannot find that the supreme court’s decision

changes the outcome in the case at bar.

¶ 14                                      CONCLUSION

¶ 15   After reconsidering our decision in Omar M. in light of the supreme court’s recent

decision in M.I., we determine that a different result is not warranted and continue to affirm

respondent’s conviction and sentence.

¶ 16   Affirmed.




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