                                           2015 IL App (3d) 130053

                                 Opinion filed May 15, 2015
     _____________________________________________________________________________

                                                    IN THE

                                      APPELLATE COURT OF ILLINOIS

                                              THIRD DISTRICT

                                                  A.D., 2015

     THE PEOPLE OF THE STATE OF                         )      Appeal from the Circuit Court
     ILLINOIS,                                          )      of the 12th Judicial Circuit,
                                                        )      Will County, Illinois,
               Plaintiff-Appellee,                      )
                                                        )      Appeal No. 3-13-0053
               v.                                       )      Circuit No. 12-CF-57
                                                        )
     DERRICK JONES,                                     )      Honorable
                                                        )      Daniel J. Rozak,
               Defendant-Appellant.                     )      Judge, Presiding.
     _____________________________________________________________________________

           PRESIDING JUSTICE McDADE delivered the judgment of the court, with opinion.
           Justices Holdridge and Lytton concurred in the judgment and opinion.
     _____________________________________________________________________________

                                                  OPINION

¶1             Following a jury trial, defendant, Derrick Jones, was convicted of aggravated robbery, a

     Class 1 felony (720 ILCS 5/18-5(a) (West 2010)). The trial court found defendant extended-

     term eligible based, in part, on a prior adjudication of juvenile delinquency referenced in the

     presentence investigation report (PSI). The court imposed an extended-term sentence of 24

     years' imprisonment. On appeal, defendant does not challenge his conviction, but does challenge

     his extended-term eligibility. He argues that his sentence violates the rules set forth in Apprendi

     v. New Jersey, 530 U.S. 466 (2000), and Shepard v. United States, 544 U.S. 13 (2005). We

     affirm.
¶2                                                  FACTS

¶3          Defendant was charged by indictment with aggravated robbery (720 ILCS 5/18-5(a)

     (West 2010)) and unlawful possession of a credit card (720 ILCS 5/17-32(b) (West 2010)). Prior

     to trial, the State elected to proceed on only the first count of the indictment, aggravated robbery.

¶4          Immediately before commencement of the jury trial, the court asked if the sentencing

     range on the aggravated robbery charge, a Class 1 felony, would be 4 to 30 years. The State

     responded that this was, indeed, the case. Assistant Public Defender Litricia Payne confirmed to

     the court that the State had tendered to her a docket sheet indicating that defendant had been

     previously adjudicated delinquent on multiple counts of residential burglary, and that those

     adjudications would make defendant's sentencing range in the present matter 4 to 30 years.

     Defendant, however, refuted having any such adjudications. Payne relayed this to the court:

                            "I did speak with [defendant] regarding that court docket and it was

                    relayed back to me that he did not have any priors for residential burglary. So as

                    far as my conversation went on that issue I left it at if that's the case that it's four

                    to 15. But the docket that was tendered to me did indicate adjudications for

                    residential burglary, which would make him four to 30."

¶5          The court admonished defendant that he faced a sentencing range of 4 to 30 years'

     imprisonment. Because, as the court noted, this was the first time it had admonished defendant

     on this issue, the court allowed defendant to consult further with counsel. Following the

     discussion, Payne stated that defendant still wished to proceed to trial.

¶6          The State's evidence at trial was limited to the facts related to the aggravated robbery; no

     evidence was introduced regarding defendant's prior adjudication of delinquency. After the trial,

     the jury returned a verdict finding defendant guilty of the charged offense. Following hearings


                                                        2
     on posttrial motions, the cause proceeded to sentencing.

¶7          At sentencing, the court took into account, inter alia, a PSI. In a section labeled "Prior

     Record - Juvenile," the PSI listed a number of charges—including assault, burglary, criminal

     trespass to land, knowing damage to property, and three counts of residential burglary—brought

     in a delinquency proceeding filed under case No. 04 JD 00276. In the PSI, the description of that

     proceeding stated in part:

                            "On April 28, 2005, with the then minor, [defendant], having been

                    adjudicated delinquent in the original Petition alleging Assault, and the 1st, 2nd

                    and 3rd Supplemental Petitions alleging: Burglary, Criminal Trespass to Land,

                    Knowingly Damage to Property and Residential Burglary, three (3) Counts.

                    [Defendant] 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."

     The State remarked that defendant was extended-term eligible, asking the court to impose a

     "lengthy" sentence. The court ultimately sentenced defendant to an extended-term sentence of

     24 years' imprisonment. Defendant's motion to reconsider the sentence was denied.

¶8          On appeal, defendant argues that the State failed to prove to a jury beyond a reasonable

     doubt the fact of defendant's prior juvenile adjudication or to allege that fact in the indictment.

     Accordingly, defendant contends, the court's decision to impose an extended-term sentence

     violated his sixth amendment right to a jury under the Supreme Court's ruling in Apprendi, 530

     U.S. 466. Alternatively, defendant contends that the trial court improperly relied upon the PSI in

     determining the fact of defendant's prior adjudication of delinquency, in contravention of the

     Supreme Court's ruling in Shepard, 544 U.S. 13. The State maintains that the Apprendi prior-


                                                       3
       conviction exception is applicable to juvenile adjudications and, as a result, it was not required to

       submit the fact of defendant's prior adjudication to a jury.

¶9                                                 ANALYSIS

¶ 10   I. Whether Apprendi's Prior Conviction Exception Applies to Adjudications of Delinquency

¶ 11                                             A. Introduction

¶ 12          The offense of aggravated robbery is categorized as a Class 1 felony in Illinois. 720

       ILCS 5/18-5(a) (West 2010). The standard sentencing range for a Class 1 felony is between 4

       and 15 years' imprisonment. 730 ILCS 5/5-4.5-30(a) (West 2010). The extended-term

       sentencing range for a Class 1 felony is between 15 and 30 years' imprisonment. Id. Section 5-

       5-3.2(b) of the Unified Code of Corrections sets forth a number of factors that a court may

       consider as a reason to impose an extended-term sentence, including the following factor

       relevant here:

                               "When 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—which the PSI indicated to be an underlying offense of

       defendant's adjudication of delinquency—is, when committed by an adult, a Class 1 felony. 720

       ILCS 5/19-3(b) (West 2010).

¶ 13          In Apprendi, the United States 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

                                                         4
       maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi, 530

       U.S. at 490. This result, the Court reasoned, was required by the fifth amendment, as well as the

       jury trial guarantees of the sixth amendment. Id. at 476; see also U.S. Const., amends. V, VI. In

       response to the decision in Apprendi, the Illinois legislature enacted section 111-3(c-5) of the

       Code of Criminal Procedure of 1963, which reads in 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."

                          725 ILCS 5/111-3(c-5) (West 2010).

¶ 14             Defendant argues that the State failed to fulfill these requirements with respect to the

       adjudication of delinquency, which was used to make him eligible for an extended-term

       sentence. 1 Therefore, defendant contends, the trial court's decision to impose an extended-term

       sentence violated the Supreme Court's directive in Apprendi, and, in turn, the Illinois statute

       codifying the Apprendi decision. The State counters that defendant's adjudication of delinquency

       should fall under the Apprendi exception for prior convictions, and that the State was therefore

       not required to prove that fact to the jury.

¶ 15             Although defendant asserts that our supreme court has already decided this issue, his

       reliance upon People v. Taylor, 221 Ill. 2d 157 (2006) is misplaced. In Taylor, the court found

                 1
                     On appeal, defendant does not challenge the veracity of the delinquency adjudication

       itself.


                                                            5
       that a prior juvenile adjudication does not satisfy the statutory definition of "conviction" for the

       purposes of the escape statute (720 ILCS 5/31-6(a) (West 1998)). Taylor, 221 Ill. 2d at 163-64.

       However, the court stated expressly that "[t]he question before us is 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. Though the court briefly

       discussed the split among the federal circuits concerning the Apprendi issue, it explicitly did not

       rule on the issue: "We take no position here with respect to the division among the federal

       circuits. *** [T]he 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 ***." Id. at 175-76.

¶ 16           Thus, contrary to defendant's position, the question of whether an adjudication of

       delinquency falls under Apprendi's prior conviction exception—and whether the State may in

       turn forego proving the adjudication to a jury before it may be used for sentence enhancement—

       remains unsettled in Illinois. Indeed, it appears that it is a matter of first impression for this or

       any other reviewing court in the state.

¶ 17           Before addressing the issue itself, we note—and defendant concedes—that defendant

       failed to preserve the issue for appeal by raising a contemporaneous objection and raising the

       issue in a posttrial motion. The issue is thus forfeited unless defendant can demonstrate that the

       error rises to the level of plain error. People v. Thompson, 238 Ill. 2d 598, 613 (2010). Our

       supreme court has held that potential Apprendi violations are subject to traditional plain error

       analysis, and that a defendant also bears the burden of showing that the Apprendi violation was

       prejudicial. People v. Nitz, 219 Ill. 2d 400, 410 (2006). The first step in any plain error analysis

       is determining whether any error occurred (Thompson, 238 Ill. 2d at 613), and this step


                                                          6
       represents the majority of our analysis of the present issue. Because determination of Apprendi's

       scope is purely a question of law, our review will be de novo. People v. Johnson, 206 Ill. 2d 348,

       360 (2002).

¶ 18                                   B. Apprendi and its Predecessors

¶ 19          The roots of the Apprendi prior-conviction exception can be found in a case decided by

       the Supreme Court two years earlier, Almendarez-Torres v. United States, 523 U.S. 224 (1998).

       In Almendarez-Torres, the Court considered whether a certain statutory provision created a

       separate crime or was merely a penalty provision authorizing an enhanced sentence. Section

       1326(a) of the United States Code authorized a sentence of not more than two years'

       imprisonment for any deported alien who returns to the United States. 8 U.S.C. § 1326 (1988).

       Subsection (b), at issue in Almendarez-Torres, authorized a sentence of up to 10 years'

       imprisonment for aliens returning after being deported pursuant to a felony conviction, and a

       sentence of up to 20 years' imprisonment for aliens returning after being deported pursuant to a

       conviction for an aggravated felony. Almendarez-Torres, 523 U.S. 224.

¶ 20          The Supreme Court found that the provisions in subsection (b) were sentence enhancers

       rather than separate offenses, and that the State was therefore not required to set forth those

       provisions in the charging document. Almendarez-Torres, 523 U.S. at 228; see also McMillan v.

       Pennsylvania, 477 U.S. 79, 84-91 (1986) (factors relevant only to sentencing of an offender

       found guilty of the charged crime need not be set forth in the indictment). In so ruling, the Court

       put great emphasis on the fact that the subject matter in question was recidivism, noting that the

       "subject matter—prior commission of a serious crime—is as typical a sentencing factor as one

       might imagine." Almendarez-Torres, 523 U.S. at 230. Indeed, the Court stressed the traditional

       role that recidivism has played as a basis for enhancing an offender's sentencing: "[T]o hold that


                                                         7
       the Constitution requires that recidivism be deemed an 'element' of petitioner's offense would

       mark an abrupt departure from a longstanding tradition of treating recidivism as " 'go[ing] to the

       punishment only.' " Id. at 244 (quoting Graham v. West Virginia, 224 U.S. 616, 629 (1912)).

¶ 21          The Court would turn to its reasoning in Almendarez-Torres the next year in deciding

       Jones v. United States, 526 U.S. 227 (1999). In Jones, the Court was once again tasked with

       deciding whether a statutory provision 2 should be considered a sentencing factor or a separate

       offense, requiring notice in the charging instrument, proof beyond a reasonable doubt, and

       submission to a jury. Jones, 526 U.S. at 251-52. The Court distilled the issue down to a single

       question: "[M]ay judicial factfinding by a preponderance support the application of a provision

       that increases the potential severity of the penalty for a variant of a given crime?" Id. at 242.

       The Court found that such a result would shrink the role of the jury, and that "the relative

       diminution of the jury's significance would merit Sixth Amendment concern." Id. at 248. Also

       citing the traditional view of aggravated offenses as separate offenses, the Court held that the

       requirement of serious bodily injury constituted an element of a separate offense, and was

       subject to the above requirements. Id.

¶ 22          The Jones Court recognized that in reaching that result, it would be required to

       distinguish Almendarez-Torres. The Court emphasized that the holding in Almendarez-Torres

       "rested in substantial part on the tradition of regarding recidivism as a sentencing factor, not as

       an element to be set out in the indictment." Id. at 249. The fact of a prior conviction was

              2
                  At issue in Jones was the federal carjacking statute, which provided for a base sentence

       of no more than 15 years' imprisonment, a sentence of no more than 25 years' imprisonment if

       serious bodily injury results from the unlawful conduct, and a sentence of up to life

       imprisonment or death if death results from the unlawful conduct. 18 U.S.C. § 2119 (1994).


                                                         8
       "potentially distinguishable for constitutional purposes from other facts that might extend the

       range of possible sentencing." Id. The Court then expounded on one of the reasons for the

       constitutional distinctiveness of recidivism: "[U]nlike 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.

¶ 23          The next term, the Court decided Apprendi, putting constitutional weight behind much of

       what it had alluded to the previous year in Jones. The 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. By giving force to the recidivism—or prior conviction—exception, the Court thus

       implicitly affirmed its earlier ruling in Almendarez-Torres. However, the statutory provision at

       issue in Apprendi was not recidivism, but a hate crime statute. As such, the Apprendi Court

       pointed out that its holding did not strictly require it to revisit the Almendarez-Torres recidivism

       exception:

                              "Even though it is arguable that Almendarez-Torres was incorrectly

                      decided, and that a logical application of our reasoning today should apply if the

                      recidivist issue were contested, Apprendi does not contest the decision's validity

                      and we need not revisit it for purposes of our decision today to treat the case as a

                      narrow exception to the general rule we recalled at the outset. Given its unique

                      facts, it surely does not warrant rejection of the otherwise uniform course of

                      decision during the entire history of our jurisprudence." Id. at 489-90.

       The Court also touched upon—albeit briefly—the logic underlying Almendarez-Torres and the


                                                           9
       prior-conviction exception:

                      "[T]here 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.

¶ 24                               C. Nonjury Adjudications of Delinquency

¶ 25          The exact parameters of the prior-conviction exception remain undefined. Indeed, aside

       from the Almendarez-Torres Court's extensive reliance on tradition, the Supreme Court's only

       stated rationale for the exception was provided in brief passages in Jones and Apprendi—two

       cases in which the prior-conviction exception itself was not directly at issue. The Court has not

       addressed the issue of whether an adjudication of delinquency is encompassed by the prior-

       conviction exception, and lower federal courts and state courts are split on the issue. However,

       as discussed infra, the majority of lower courts have held that an adjudication of delinquency

       does fall under the exception, and thus need not be set out in the indictment, submitted to a jury,

       or proven beyond a reasonable doubt.

¶ 26                  1. Procedural Safeguards Attendant to Juvenile Delinquency Proceedings

¶ 27          In Jones and Apprendi, the Supreme Court opined that the prior-conviction exception was

       constitutionally justified by the procedural safeguards in place at the time of the earlier

       conviction. Because criminal convictions are only achieved when a defendant has been

       protected by the requirements of fair notice, the right to a jury, and the right to have guilt proven

       beyond a reasonable doubt, the safeguards required when using that conviction to later enhance a

       sentence need not be as stringent. See Apprendi, 530 U.S. at 496. Because juvenile delinquency


                                                        10
       proceedings provide some, but not all, of those procedural safeguards provided in an adult

       criminal trial, lower courts have sought to determine whether delinquency proceedings provide

       enough safeguards to later qualify for the prior-conviction exception. As the Eighth Circuit

       Court of Appeals described the issue: "[W]hile the 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." United States v. Smalley, 294 F.3d 1030, 1032

       (8th Cir. 2002).

¶ 28          The precise set of due process safeguards required in the adjudicatory phase of juvenile

       proceedings was largely established through a series of Supreme Court cases decided more than

       four decades ago. In In re Gault, 387 U.S. 1, 33, 41, 55 (1967), the Court held that the due

       process requirements of fair notice, the right to counsel, and the privilege against self-

       incrimination were applicable in the adjudicatory phase of juvenile proceedings. In In re

       Winship, 397 U.S. 358, 365 (1970), the Court found that juveniles, like adults, are

       constitutionally entitled to proof beyond a reasonable doubt when charged with a violation of a

       criminal law. After tracing the history and reasoning behind beyond-the-reasonable-doubt

       standard, the Winship Court concluded that "[t]he same considerations that demand extreme

       caution in factfinding to protect the innocent adult apply as well to the innocent child." Id. One

       year later, in McKeiver v. Pennsylvania, 403 U.S. 528 (1971), the Court held that the

       Constitution's due process clause does not require that a juvenile be afforded the right to a trial

       by jury, thus determining that the rights conferred in adult criminal proceedings are not perfectly

       congruent with those due to juveniles in delinquency proceedings. Id. at 533.

¶ 29           Courts analyzing adjudications of delinquency in the context of the prior-conviction


                                                        11
       exception have done so with those constitutional requirements in mind. E.g., Welch v. United

       States, 604 F.3d 408 (7th Cir. 2010). In Illinois, the Juvenile Court Act of 1987 (Act) codifies

       the constitutional requirements. 705 ILCS 405/1-1 et seq. (West 2010). Section 1-5 of the Act

       provides to the minor who is the subject of the proceeding "the right to be present, to be heard, to

       present evidence material to the proceedings, to cross-examine witnesses, to examine pertinent

       court files and records and also, although proceedings under this Act are not intended to be

       adversary in character, the right to be represented by counsel." 705 ILCS 405/1-5 (West 2004).

       Section 5-605 provides that all trials under the Act shall be held before the court and the standard

       of proof and rules of procedure in those trials shall be the same as those applicable in criminal

       proceedings. 3 705 ILCS 405/5-605 (West 2010).

¶ 30                                         2. Lower Court Treatment

¶ 31          The first court to address the present issue was the Ninth Circuit Court of Appeals. In

       United States v. Tighe, 266 F.3d 1187 (9th Cir. 2001), the Ninth Circuit concluded that a prior

       nonjury adjudication of delinquency does not fall under the prior-conviction exception to

       Apprendi. Id. at 1194-95. Relying upon the Supreme Court's commentary in Jones, the Tighe

       court reasoned that the Supreme Court's "recognition of prior convictions as a constitutionally

       permissible sentencing factor was rooted in the concept that prior convictions have been, by their

       very nature, subject to the fundamental triumvirate of procedural protections intended to

              3
                  While the Act does provide for a right to a jury trial in certain situations, such as

       adjudication of whether a minor is deemed a "Violent Juvenile Offender" (705 ILCS 405/5-

       820(a), (d) (West 2010)), defendant was not afforded that right here. An adjudication of

       delinquency pursuant to a jury trial would fall under the prior-conviction exception, as it would

       have met all of the procedural safeguards mentioned by the Jones and Apprendi courts.


                                                          12
       guarantee the reliability of criminal convictions: fair notice, reasonable doubt and the right to a

       jury trial." Id. at 1193. Because juvenile proceedings do not provide the right to a jury trial,

       adjudications arising from those proceedings could not fall under the prior-conviction exception.

       Id. at 1194. Noting that the Supreme Court in Apprendi had expressed skepticism toward

       Almendarez-Torres and the prior-conviction exception, the Tighe court refused to extend the

       exception any further. Id.

¶ 32          Dissenting from the Tighe majority, Judge Brunetti pointed out that the Supreme Court's

       language in Jones, reiterated in Apprendi, referred strictly to prior criminal convictions. Id. at

       1200 (Brunetti, J., dissenting). "In my view," Judge Brunetti wrote, "the language in Jones

       stands for the basic proposition that Congress has 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 predicate crime."

       Id. Extending the logic of Jones to juvenile adjudications, Judge Brunetti argued that when a

       minor receives all the process that is constitutionally due in a juvenile proceeding, there is no

       constitutional problem in later using that adjudication as a sentencing enhancement. Id.

       Because, under McKeiver, the right to a jury trial for a juvenile is not mandated by due process, a

       nonjury adjudication of delinquency would fall under Apprendi's prior-conviction exception. Id.

¶ 33          The reasoning found in Judge Brunetti's dissent would be echoed in a number of opinions

       over the next decade as numerous courts found that nonjury juvenile adjudications fell under the

       exception. In Smalley, the Eighth Circuit Court of Appeals disagreed with the Tighe majority,

       holding that adjudications of delinquency can properly be characterized as prior convictions for

       Apprendi purposes. Smalley, 294 F.3d at 1032. The Smalley court reasoned that it is incorrect to

       assume that the " 'fundamental triumvirate of procedural protections' " are not only sufficient, but


                                                        13
       necessary before an adjudication may qualify for the Apprendi exception. Id. (quoting Tighe,

       266 F.3d at 1193). The court wrote:

                      "[W]e conclude that the question of whether juvenile adjudications should be

                      exempt from Apprendi's general rule 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." Smalley, 294 F.3d at 1032-33.

       After citing the many due process protections that are afforded to minors, the court concluded

       that adjudications of juvenile delinquency are sufficiently reliable to fall under the prior-

       conviction exception. Id. at 1033.

¶ 34          In Welch, 604 F.3d 408, the Seventh Circuit Court of Appeals also held that a nonjury

       adjudication of delinquency could be used to enhance a sentence without the requirement that the

       adjudication be proven beyond a reasonable doubt to a jury. The Welch court opined that

       "[p]rior convictions are not subject to the Apprendi rule if the defendant received all the

       protections to which he was constitutionally entitled, and the integrity of the fact-finding

       procedures are thereby ensured." Id. at 429. Citing to Winship, Gault, and McKeiver, the court

       found that the Supreme Court had been vigilant in ensuring that juvenile adjudicative

       proceedings meet constitutional standards. Id. "[B]ecause juvenile adjudications are reliable,"

       the court concluded, "they are not subject to the Apprendi rule." Id. In so holding, the Seventh

       Circuit joined the Eighth Circuit, Third Circuit (United States v. Jones, 332 F.3d 688 (3d Cir.

       2003)), Eleventh Circuit (United States v. Burge, 407 F.3d 1183 (11th Cir. 2005)), Sixth Circuit

       (United States v. Crowell, 493 F.3d 744 (6th Cir. 2007)), First Circuit (United States v.

       Matthews, 498 F.3d 25 (1st Cir. 2007)), and Fourth Circuit (United States v. Wright, 594 F.3d


                                                        14
       259 (4th Cir. 2010)), in finding the prior-conviction exception applicable to juvenile

       adjudications.

¶ 35          A majority of state courts have also taken the same position on the juvenile adjudication

       issue. In 2009, the California supreme court sided with the majority in holding that the exception

       did apply to prior adjudications of delinquency. People v. Nguyen, 209 P.3d 946 (Cal. 2009).

       The court held that a trial court's authority to impose a greater punishment based upon a

       defendant's recidivism "may properly be exercised *** when the recidivism is evidenced *** by

       a constitutionally valid prior adjudication of criminal conduct." (Emphasis in original.) Id. at

       949; see also, e.g., State v. Hitt, 42 P.3d 732 (Kan. 2002); Ryle v. State, 842 N.E.2d 320 (Ind.

       2005); State v. McFee, 721 N.W.2d 607 (Minn. 2006). Rulings on the issue at the state level

       have not been unanimous, however, as multiple state courts have, instead, followed the stricter

       logic of Tighe. See, e.g., State v. Brown, 2003-2788 (La. 7/6/04); 879 So. 2d 1276; State v.

       Harris, 118 P.3d 236 (Or. 2005).

¶ 36          After studying the opinions of the courts that have addressed this matter, at both the

       federal and state levels, we join the majority. We agree that an adjudication of juvenile

       delinquency, 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. To hold otherwise would be " 'to hold that the enhancement of an adult criminal

       sentence requires a higher level of due process protection than the imposition of a juvenile

       sentence.' " Tighe, 266 F.3d at 1199 (Brunetti, J., dissenting) (quoting United States v. Williams,

       891 F.2d 212, 215 (9th Cir. 1989)). These concerns are more persuasive on the issue than is a

       "narrow parsing" of the Supreme Court's brief dicta in Jones and Apprendi. Smalley, 294 F.3d at

       1033. As the Fourth Circuit stated in Wright: "As a jury is not required in a juvenile adjudication


                                                        15
       on the merits, we see no reason to impose such a requirement through the back door by allowing

       former juveniles who have subsequently reached adulthood to overturn their adjudications in

       subsequent sentencing hearings." Wright, 594 F.3d at 263-64.

¶ 37          This conclusion is further bolstered by the Supreme Court's decision in McKeiver. In

       holding that due process does not require the right to a jury trial in juvenile proceedings, a

       majority of the Court emphasized that a jury is not "a necessary component of accurate

       factfinding." McKeiver, 403 U.S. at 543, 547 ("[t]he imposition of the jury trial on the juvenile

       court system would not strengthen greatly, if at all, the factfinding function"). In concurrence,

       Justice White agreed, opining that a jury "is not necessarily or even probably better at the job

       than the conscientious judge." McKeiver, 403 U.S. at 551 (White, J., concurring). Thus, the

       proposition that the absence of a right to a jury trial does not undermine the reliability of a

       juvenile proceeding finds support in Supreme Court jurisprudence.

¶ 38          In the case sub judice, defendant was provided with all required constitutional safeguards

       in his prior juvenile proceedings, including the right to fair notice and the right to have facts

       proven beyond a reasonable doubt. As the adjudication of delinquency provided all process that

       was due, we find that it is sufficiently analogous to a prior criminal conviction to fall under the

       exception in Apprendi. The State was thus not required to put the fact of defendant's prior

       adjudication in its indictment, present the fact to a jury, or prove the fact of the adjudication

       beyond a reasonable doubt. As we find that no error was committed by the trial court, we need

       not proceed any further in our plain error analysis.

¶ 39                                     II. Trial Court's Use of the PSI

¶ 40          As prior adjudications of delinquency fall under the Apprendi exception for prior

       convictions, and thus need not be proven to a jury, reason dictates that such adjudications are a


                                                         16
       subject properly within the scope of judicial factfinding at sentencing. However, defendant takes

       issue with the trial court's reliance upon the PSI as the basis for determining that he had been

       adjudicated delinquent for an offense that would be a Class 1 felony. Like the Apprendi issue,

       defendant concedes that this error was not preserved, and argues instead that plain error was

       committed. Once again, the first step in plain error analysis is determining whether any error

       occurred. Thompson, 238 Ill. 2d at 613.

¶ 41          The issue of what sources a court may constitutionally rely upon in its role as factfinder

       at sentencing was discussed at length in Shepard, 544 U.S. 13. Specifically, the Supreme Court

       looked to the Armed Career Criminal Act (ACCA), which mandated a minimum of 15 years'

       imprisonment for anyone found in possession of a firearm "after three prior convictions for

       serious drug offenses or violent felonies." Id. at 15 (citing 18 U.S.C. § 924(e) (2000 ed. and

       Supp. II)). Under ACCA, only generic burglary—a burglary committed in a building or

       enclosed space, rather than a boat or motor vehicle—was considered a violent felony. Shepard,

       544 U.S. at 15-16; see Taylor v. United States, 495 U.S. 575 (1990) (interpreting burglary

       provision of ACCA). Because statutes in some states define burglary in a broader fashion,

       encompassing both generic and nongeneric burglary, whether a prior conviction may stand as a

       predicate offense under ACCA is not always immediately clear.

¶ 42          The Court had addressed the same issue 15 years earlier in Taylor, holding that a trial

       court may only look to the fact of conviction and the statutory definition of the prior offense in

       determining whether an offender had previously committed generic burglary. Taylor, 495 U.S.

       at 602. The Shepard Court affirmed its previous ruling in Taylor, finding that a later court

       tasked with determining the nature of a burglary conviction "is generally limited to examining

       the statutory definition, charging document, written plea agreement, transcript of plea colloquy,


                                                        17
       and any explicit factual finding by the trial judge to which the defendant assented." Shepard,

       544 U.S. at 16. The Court later added that "some comparable judicial record of this information"

       would also be suitable. Id. at 26. The Court rejected the government's argument that a

       sentencing judge should be permitted to read police reports in order to make the determination.

       Id.

¶ 43          Justice Souter included in his majority opinion 4 a discussion on the impact of Apprendi

       on the issue before the court, writing:

                        "While the disputed fact here [(whether a defendant committed generic burglary)]

                        can be described as a fact about a prior conviction, it is too far removed from the

                        conclusive significance of a prior judicial record, and too much like the findings

                        subject to Jones and Apprendi, to say that Almendarez-Torres clearly authorizes a

                        judge to resolve the dispute." Shepard, 544 U.S. at 25.

       Defendant relies upon this language, arguing that while the sentencing court may consider the

       fact of a prior conviction, "the sources upon which the sentencing court may rely to make that

       determination are severely limited." Thus defendant contends that a PSI, similar to the police

       reports at issue in Shepard, may not be relied upon by the sentencing court without offending

       Apprendi.

              In the immediate aftermath of Shepard, the Fourth District addressed a similar argument.

              4
                  A five-justice majority, consisting of Justices Souter, Stevens, Scalia, Ginsburg, and

       Thomas, agreed in the holding. Justice Thomas, however, did not join in the section discussing

       Apprendi (Part III). Nevertheless, because the dissenting Justices argued that recidivism

       enhancements never trigger constitutional concerns, "Part III speaks for the Court as a practical

       matter." United States v. Carpenter, 406 F.3d 915, 917 (7th Cir. 2005).


                                                         18
       In People v. James, 362 Ill. App. 3d 285, 289 (2005), the defendant argued that "the trial court

       erroneously relied solely on the [PSI] report to sentence him to an extended term." The Fourth

       District held that under Apprendi, the fact of a prior conviction need not be proven beyond a

       reasonable doubt, and that a PSI is an appropriate and reliable source for judicial determination

       of that fact. The court put particular emphasis on People v. Williams, 149 Ill. 2d 467 (1992), in

       which our supreme court "acknowledged that a variety of documents containing a defendant's

       criminal history have been found to be properly relied upon at sentencing." James, 362 Ill. App.

       3d at 292. Specifically, the Williams court found that "[a] presentence report *** is generally a

       reliable source for the purpose of inquiring into a defendant's criminal history." Williams, 149

       Ill. 2d at 491.

¶ 44           Other Illinois courts subsequently analyzing this issue have addressed Shepard directly.

       In People v. Johnson, 372 Ill. App. 3d 772 (2007), the First District addressed the question of

       "whether[,] under Shepard[,] the information provided by defendant's PSI can be used by the

       trial court to establish the existence of a prior conviction for purposes of imposing an extended-

       term sentence." Id. at 779. The court pointed out that the inquiry in Shepard was a fact-based

       inquiry into the elements of an underlying crime; in Johnson there was no question as to how the

       prior felonies were committed, but only the question of if those felonies were committed. Id. at

       780. The Johnson court noted that under Apprendi, the fact of a prior conviction need not be

       proven beyond a reasonable doubt, and found that this exception remained viable after Shepard.

       Id. at 781. "Consistent with Apprendi and Shepard, a judge can use appropriate judicial

       documents and records to enhance a sentence based on prior convictions. Accordingly, the PSI

       is an acceptable source for the trial judge to use when considering the defendant's prior criminal

       background." Id.


                                                       19
¶ 45          One year later, in People v. Bolton, 382 Ill. App. 3d 714 (2008), the Second District

       found that the trial court did not err when it considered an ambiguous PSI at sentencing. 5 In so

       ruling, the court relied upon the Seventh Circuit Court of Appeals' summary of the Shepard

       decision. In Carpenter, 406 F.3d at 917, the Seventh Circuit explained: "[A] sentencing court is

       entitled to classify and take into account the nature of a defendant's prior convictions, provided

       that the judge does not engage in fact-finding about what the accused did (as opposed to what

       crime he has been convicted of)." (Emphasis in original.) Because the trial court in Bolton did

       not go " 'behind the existence of [the defendant's] priors to engage in a factual rather than a legal

       analysis of his former criminal behavior,' " the Second District found that it had "remained

       within the bounds of the inquiry permitted by Shepard." Bolton, 382 Ill. App. 3d at 725 (quoting

       Carpenter, 406 F.3d at 917).

¶ 46          We agree with our colleagues in the other districts that information from a PSI may be

       used as the basis for sentence enhancement, and that this does not run afoul of Shepard. The

       mere inquiry into the fact of a prior conviction, a fact which need not be proven beyond a

       reasonable doubt, is not the kind of fact-based inquiry with which the Shepard court was

       concerned. Though defendant contends that a PSI is particularly unreliable in determining the

       fact of a prior adjudication of delinquency, as opposed to a prior criminal conviction, this

       argument is unconvincing. The PSI here, unlike that in Bolton, is unequivocal. It indicates that

              5
                  The defendant in Bolton claimed that his prior conviction was for simple possession (a

       Class 4 felony), while the State maintained that the conviction was for unlawful possession with

       intent to deliver (a Class 2 felony). The PSI only indicated that the defendant was convicted of

       " 'Possession of Controlled Substance' " and sentenced to three years' imprisonment, a term

       within the range of both a Class 2 and a Class 4 felony. Bolton, 382 Ill. App. 3d at 722.


                                                        20
       defendant was adjudicated delinquent pursuant to a petition alleging three counts of residential

       burglary, a Class 1 felony.

¶ 47           Having decided that a prior adjudication of delinquency is sufficiently analogous to a

       prior conviction so as to fall under the exception to Apprendi, we find that the fact of the prior

       adjudication may be determined by the sentencing court through reference to the PSI. The trial

       court here committed no error. As we find that there has been no error, we need not proceed any

       further in our plain error analysis.

¶ 48                                             CONCLUSION

¶ 49           The judgment of the circuit court of Will County is affirmed.

¶ 50           Affirmed.




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