                                   2016 IL App (1st) 101573-B
                                         No. 1-10-1573
                                          June 21, 2016
                        Modified Upon Denial of Rehearing November 1, 2016

                                                                               SECOND DIVISION


                                               IN THE

                                APPELLATE COURT OF ILLINOIS

                                          FIRST DISTRICT


     THE PEOPLE OF THE STATE OF ILLINOIS, )                Appeal from the Circuit Court
                                          )                Of Cook County.
          Plaintiff-Appellee,             )
                                          )
          v.                              )                No. 09 CR 1455
                                          )
     RONALD PATTERSON,                    )                The Honorable
                                          )                Ellen Mandeltort,
          Defendant-Appellant.            )                Judge Presiding.



                   JUSTICE NEVILLE delivered the judgment of the court, with opinion.
                  Justice Pierce and Justice Simon concurred in the judgment and opinion.


                                            OPINION

¶1        A jury found Ronald Patterson guilty of aggravated criminal sexual assault, an offense

       committed when he was 15 years old. The trial court sentenced Patterson, under statutes for

       the sentencing of adult offenders, to 36 years in prison. Our supreme court has affirmed the

       conviction and remanded the case to this court for consideration of sentencing issues. We

       now vacate the sentence and remand the case to juvenile court for further proceedings.
     No. 1-10-1573



¶2                                           BACKGROUND

¶3         Police arrested Patterson on December 14, 2008, in his home at a facility run by

        Streamwood Behavioral Health Systems (SBHS). A grand jury charged Patterson with three

        counts of aggravated criminal sexual assault. The Juvenile Court Act of 1987 required the

        transfer of the case to criminal court for the trial of Patterson as an adult. 705 ILCS 405/5-

        130(1) (West 2008). A jury found Patterson guilty as charged.

¶4         The presentence investigation report said that Patterson tested positive for cocaine at

        birth. A relative of Patterson’s mother adopted him at 18 months of age, and he grew up with

        his adoptive parents until they found they could not protect his siblings from his increasingly

        violent behavior. He had extensive psychiatric treatment from the time he turned 11. The

        Department of Children and Family Services took custody of Patterson, at his adoptive

        parents’ request, in 2006, when he was 13. He took Thorazine, Benadryl, Prozac, Trileptal,

        and Abilify, amongst other medications, to try to control his aggressive behavior and his

        moods. An IQ test in 2006 resulted in a full-scale score of 72.

¶5         School records and records from SBHS showed that Patterson acted somewhat violently

        on numerous occasions. He threw hot water on a teacher in 2004, tried to bite SBHS staff

        members when they restrained him in 2006, threatened to stab a staff member in 2006, and

        stabbed a staff member with a pencil in 2008. The behaviors led to some loss of privileges at

        SBHS and other discipline. Records also showed that at times SBHS rewarded Patterson for

        extended periods of good behavior.




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¶6         The presentence investigator said in his report that Patterson had no prior police contacts.

        According to a printout from the police department, Patterson had one prior arrest, for

        throwing hot water on a teacher when he was 11, and the arrest resulted in a station

        adjustment.

¶7         The trial court found several factors in aggravation, and none in mitigation, so the court

        sentenced Patterson to 12 years in prison on each count, with the sentences to run

        consecutively, for a total sentence of 36 years. Patterson appealed.

¶8         The appellate court reversed the convictions and remanded for retrial. People v.

        Patterson, 2012 IL App (1st) 101573. The supreme court reversed the appellate court’s

        judgment and rejected all of Patterson’s arguments for a new trial. People v. Patterson, 2014

        IL 115102. The supreme court remanded the case to this court for consideration of the

        sentencing issues Patterson raised in his appeal, which this court found no need to consider

        on the initial appeal due to the decision to remand for a new trial. Patterson, 2014 IL 115102

        ¶ 127.

¶9         After the supreme court filed its opinion, but before the parties finished briefing the

        appeal on remand, the general assembly amended the Juvenile Court Act, changing the

        provision that required the juvenile court to transfer the case to criminal court for the State to

        prosecute Patterson as an adult. Patterson now asks us to remand the case to the juvenile

        court for resentencing, in accord with the amended statute.




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¶ 10                                             ANALYSIS

¶ 11         In 2008, when Patterson committed the offense, section 5-130 of the Juvenile Court Act

          provided:

                  “The definition of delinquent minor under Section 5-120 of this Article shall not

                  apply to any minor who at the time of an offense was at least 15 years of age and

                  who is charged with *** aggravated criminal sexual assault ***.

                       These charges and all other charges arising out of the same incident shall be

                  prosecuted under the criminal laws of this State.” 705 ILCS 405/5-130(1)(a)

                  (West 2008).

¶ 12         Thus, section 5-130 of the Juvenile Court Act required prosecution of Patterson under

          Illinois’s criminal laws. The general assembly adopted Public Act 99-258 in 2015, changing

          the Juvenile Court Act to make the minimum age for mandatory transfer 16, not 15. The

          Public Act includes no explicit provision establishing the effective date for the change to

          section 5-130. Pub. Act 99-258 (eff. Jan. 1, 2016) (amending 705 ILCS 405/5-130(1)(a)

          (West 2014)).

¶ 13         Public Act 99-258 also amended section 5-805 of the Juvenile Court Act, concerning the

          discretionary transfer of jurisdiction from juvenile court to criminal court. As amended, the

          section provides that if the State files a motion for a transfer to criminal court of a case

          against a minor at least 13 years old, and the juvenile court finds that the prosecution of the

          minor under criminal law would best serve the interests of the public, the court may transfer

          the case to the criminal courts. 705 ILCS 405/5-805(3)(a) (West 2014). The Effective Date of


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          Laws Act established January 1, 2016, as the effective date of Public Act 99-258, because

          Public Act 99-258 does not expressly state its effective date. Pub. Act 99-258 (eff. Jan. 1,

          2016); 5 ILCS 75/1 (West 2014).

¶ 14         Public Act 99-258 includes a provision expressly limiting the retroactive application of

          the amendment to section 5-805. The Public Act states, “The changes made to this Section

          [5-805] by this amendatory Act *** apply to a minor who has been taken into custody on or

          after the effective date of this amendatory Act ***.” Pub. Act 99-258 (eff. Jan. 1, 2016)

          (amending 705 ILCS 405/5-130(1)(a) (West 2014)). Public Act 99-258 does not include any

          express statement concerning the retroactive application of the amendment to section 5-130.

          Our supreme court, in Caveney v. Bower, 207 Ill. 2d 82 (2003), found that, by adopting

          section 4 of the Statute on Statutes (5 ILCS 70/4 (West 2014)), “the legislature has clearly

          indicated the ‘temporal reach’ of every amended statute.” (Emphasis in original.) Caveney,

          207 Ill. 2d at 92. “[S]ection 4 represents a clear legislative directive as to the temporal reach

          of statutory amendments and repeals: those that are procedural in nature may be applied

          retroactively, while those that are substantive may not.” Caveney, 207 Ill. 2d at 92.

¶ 15         Because the legislature included no express provision concerning retroactive application

          of the amendment to section 5-130, under Caveney, we must determine whether the

          amendment makes a substantive or procedural change to the Juvenile Court Act. See People

          v. Bethel, 2012 IL App (5th) 100330, ¶ 15. The State claims that the amendment operates

          substantively to reduce sentences. But the State has successfully argued, in this case as well

          as others, that despite their effect on sentences, the parts of the Juvenile Court Act governing


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          the transfer of cases to the criminal courts count as procedural provisions. Patterson, 2014 IL

          115102, ¶¶ 104-05; In re M.C., 319 Ill. App. 3d 713, 719 (2001); People v. Pena, 321 Ill.

          App. 3d 538, 543-44 (2001). The procedural provisions that operated to increase sentences

          did not become substantive when an amendment made them work to reduce sentences.

¶ 16         The State argues that the legislature implicitly intended prospective application for the

          amendment, as the amended statute has an effective date in 2016, well after the legislature

          passed the amendment in 2015. But the Statute on Statutes controls exactly this situation,

          where the legislature makes no explicit statement regarding retroactive application of an

          amendment. See People v. Glisson, 202 Ill. 2d 499, 506-07 (2002).

¶ 17         The State claims that the decision in People v. Brown, 225 Ill. 2d 188 (2007), requires a

          finding that the amendment here operates only prospectively. But the statute at issue in

          Brown, unlike section 5-130 here, included an express provision concerning its effective

          date. Because the legislature expressly delayed implementation of the statute, the Brown

          court found that the legislature intended the statute not to apply retroactively. Brown, 225 Ill.

          2d at 201. Here, the legislature set no explicit effective date, so the Effective Date of Laws

          Act set its effective date, and the Statute on Statutes governed its retroactivity. Under the

          Statute on Statutes, the procedural amendment applies retroactively to all cases pending on

          direct appeal. Caveney, 207 Ill. 2d at 92; Glisson, 202 Ill. 2d at 506-07; People v. Hauschild,

          226 Ill. 2d 63, 77-78 (2007).

¶ 18         Finally, the State cites the Synopsis for House Bill 3718, which became Public Act 99-

          258, where the Synopsis states that the bill “[p]rovides that the amendatory changes to the


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          transfer of jurisdiction provisions are prospective.” I Final Legislative Synopsis and Digest of

          the 99th Ill. Gen. Assem. (No. 16), at 2351. That part of the synopsis accurately describes the

          effect of the amendment to section 5-805(7), which makes the amendment to section 5-805

          operate prospectively. The synopsis does not alter the absence of any similar provision

          concerning the amendment to section 5-130, which governs the transfer of Patterson’s case to

          criminal court. Because the case comes before us on direct appeal, the procedural amendment

          to section 5-130, concerning mandatory transfers to criminal court, governs this case. See

          Glisson, 202 Ill. 2d at 506-07.

¶ 19         The amended provisions for discretionary transfer to criminal court would apply here

          only if the State took Patterson into custody after January 1, 2016, the effective date of Public

          Act 99-258. Pub. Act 99-258 (eff. Jan. 1, 2016) (amending 705 ILCS 405/5-130(1)(a) (West

          2014)). The version of section 5-805 in effect in 2008, which governs the prosecution of

          Patterson, provided:

                “If the State’s Attorney files a petition, at any time prior to commencement of the

                minor’s trial, to permit prosecution under the criminal laws and the petition

                alleges the commission by a minor 15 years of age or older of: (i) a Class X

                felony other than armed violence *** and, if the juvenile judge assigned to hear

                and determine motions to transfer a case for prosecution in the criminal court

                determines that there is probable cause to believe that the allegations in the

                petition and motion are true, there is a rebuttable presumption that the minor is

                not a fit and proper subject to be dealt with under the Juvenile Justice Reform


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                 Provisions of 1998 *** and that, except as provided in paragraph (b), the case

                 should be transferred to the criminal court.” 705 ILCS 405/5-805(2)(a) (West

                 2008).

¶ 20         The State did not file the motion required by section 5-805(2)(a) prior to trial. However,

          under the circumstances of this case, because the law in effect at the time of the arrest and

          trial did not require the filing of a motion to transfer, instead providing for automatic transfer

          of the case to criminal court, we find that we should permit the State on remand to exercise

          its discretion and file the requisite motion if it chooses to request a hearing under the

          provisions of section 5-805(2)(b). 705 ILCS 405/5-805(2)(b) (West 2008). In effect, we treat

          the case like People v. Clark, 119 Ill. 2d 1 (1987). In Clark, the juvenile court transferred a

          case against a minor to the criminal court, and our supreme court found that the transfer

          hearing did not accord with the requirements of the Juvenile Court Act. The Clark court

          remanded the case to the juvenile court for a new transfer hearing. Clark, 119 Ill. 2d at 16-20.

¶ 21         Now that the amendment makes the automatic transfer provision from 2008 inapplicable

          to Patterson’s case, the Juvenile Court Act requires a hearing before the transfer to the

          criminal court of a case of Class X felony charges against a 15-year-old minor. 705 ILCS

          405/5-805 (West 2008). Patterson had no such hearing. We vacate Patterson’s sentence and

          remand the case to the juvenile court to permit the State to file a motion for transfer of the

          case to criminal court for sentencing. If the State files such a motion, the juvenile court

          should hold a transfer hearing in accord with the procedures and standards established in the

          2008 version of the Juvenile Court Act of 1987. 705 ILCS 405/5-805(2)(b) (West 2008).


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          Regardless of whether the juvenile court or the criminal court sentences Patterson, the

          sentencing court should take into account the reasoning of Roper v. Simmons, 543 U.S. 551

          (2005), Graham v. Florida, 560 U.S. 48 (2010), and Miller v. Alabama, 567 U.S. ___, 132 S.

          Ct. 2455 (2012), concerning punishment of juveniles.

¶ 22                                       Petition for Rehearing

¶ 23         The State filed a petition for rehearing, raising two new arguments for affirming the trial

          court’s judgment. First, the State contends that we lacked jurisdiction to enter the order we

          entered because we failed to obey the Supreme Court’s mandate. We address the new

          argument on its merits because it pertains to our jurisdiction. See In re M.W., 232 Ill. 2d 408,

          414 (2009).

¶ 24         Generally, when a higher court issues a mandate, the lower court must enter a judgment

          that complies exactly with the higher court’s order. See People ex rel. Daley v. Schreier, 92

          Ill. 2d 271, 276-77 (1982). However, the general rule does not apply when the legislature

          amends a statute, in a manner that affects the case, between the date of the mandate and the

          date of the lower court’s reconsideration of the case. Banco Nacional de Cuba v. Farr, 383

          F.2d 166 (2d Cir. 1967).

¶ 25         In Banco Nacional, the United States Court of Appeals for the Second Circuit needed to

          decide whether the United States Supreme Court’s mandate precluded the court of appeals

          from applying a newly amended statute. The Banco Nacional court said:

                       “The Supreme Court mandate rule is nothing more than one specific

                application of a general doctrine appellate courts apply to their orders to lower


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                courts, a doctrine commonly referred to as the law of the case ***. *** [A] lower

                court is not bound to follow the mandate of an appellate court if the mandate is, in

                the interim, affected by an authority superior to the court issuing the mandate,

                such as by a higher appellate court, either state or federal ***. *** The same

                principle should apply here; any limiting language in the Supreme Court mandate

                should not preclude judicial application of the Amendment in this case for the rule

                of law expressed by the mandate has been affected by a subsequently enacted

                federal statute.” Banco Nacional de Cuba v. Farr, 383 F.2d at 178.

                See Jordan v. Jordan, 643 P.2d 1008, 1012-13 (Az. 1982).

¶ 26         Following Banco Nacional, we find that this court needed to determine whether the

          amendment to section 5-130 applied to this case.

¶ 27         Next, the State argues that we should adopt the reasoning of People v. Hunter, 2016 IL

          App (1st) 141904, issued after we filed our initial order on remand in this case. The Hunter

          court said that courts should not apply procedural statutes retroactively if the retroactive

          application would affect a party’s vested rights. Hunter, 2016 IL App (1st) 141904, ¶ 72; see

          People v. One 1998 GMC, 2011 IL 110236, ¶ 69. Although the State in its initial brief on

          remand raised no argument concerning vested rights, we choose to address the new argument

          on its merits because of the conflict between our ruling and the ruling in Hunter.

¶ 28         Hunter involved a juvenile automatically transferred to criminal court for trial, who

          argued on direct review of his conviction that the amendment to section 5-130 should apply

          to the charges against him. The Hunter court held that the State had a vested right to have


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          Hunter sentenced as an adult, because “[a]pplying the amended language retroactively to this

          case would either require the State to file new petitions seeking criminal prosecution and

          sentencing on remand, or would result in significant legal consequences for its failure to have

          done so previously.” Hunter, 2016 IL App (1st) 141904, ¶ 73.

¶ 29         Another panel of the appellate court, in People v. Ortiz, 2016 IL App (1st) 133294,

          addressed the conflict between our opinion and Hunter. The Ortiz court explained that under

          the reasoning of Caveney, 207 Ill. 2d at 92-95, and Glisson, 202 Ill. 2d at 505-07, courts need

          not conduct a retroactive impact analysis to determine the temporal reach of a statutory

          amendment, when the legislature has not specified the amendment’s effective date. Ortiz,

          2016 IL App (1st) 133294, ¶¶ 29-33. We agree with the Ortiz court, which more fully

          explained the holdings in Caveney and Glisson.

¶ 30         Moreover, even if our supreme court were to require retroactive impact analysis for

          statutory amendments, we find no authority other than Hunter for the proposition that the

          State has a vested right to have the criminal courts, rather than the juvenile courts, sentence

          juvenile defendants. Generally, parties have “ ‘no vested right in any particular remedy or

          method of procedure.’ ” People v. Ruiz, 107 Ill. 2d 19, 23 (1985) (quoting Ogdon v.

          Gianakos, 415 Ill. 591, 597 (1953)); see Williams v. Irving, 98 Ill. App. 3d 323, 329 (1981)

          (no vested interest in method for calculating good time for sentence). We do not see why

          requiring the State to apply to the court for a transfer for sentencing, if it seeks to have a

          juvenile sentenced by the criminal courts, imposes too great a burden on the State, in view of

          the interest of all citizens in the imposition on juveniles of just sentences that take into


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          account the “distinctive attributes of youth” (Miller, 567 U.S. at ___, 132 S. Ct. at 2468). Our

          remand to the juvenile court does not affect any party’s vested rights. Under the reasoning of

          Caveney, Glisson and Ortiz, we deny the State’s petition for rehearing.

¶ 31                                           CONCLUSION

¶ 32         The procedural amendment to section 5-130 of the Juvenile Court Act applies to cases on

          direct appeal, including the prosecution of Patterson. Under the amended Act, the juvenile

          court should have held a hearing under section 5-805 of the Act before transferring the

          prosecution of the case against Patterson to the criminal court. We vacate the sentence

          imposed on Patterson and remand to the juvenile court, where the State may exercise its

          discretion to decide whether to file a petition to transfer the case to criminal court for

          sentencing.

¶ 33         Convictions affirmed; sentence vacated; cause remanded.




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