                               Illinois Official Reports

                                      Appellate Court



                          In re Omar M., 2014 IL App (1st) 100866-B




Appellate Court          In re OMAR M., a Minor (The People of the State of Illinois,
Caption                  Plaintiff-Appellee, v. Omar M., Respondent-Appellant).



District & No.           First District, Fifth Division
                         Docket No. 1-10-0866



Filed                    January 31, 2014
Rehearing denied         July 30, 2014
Modified upon denial
of rehearing             August 1, 2014



Held                       The conviction and sentence of respondent for first-degree murder
(Note: This syllabus pursuant to an extended jurisdiction juvenile prosecution was affirmed
constitutes no part of the following a supervisory order of the Illinois Supreme Court directing
opinion of the court but the appellate court to vacate its judgment and reconsider the case in
has been prepared by the light of the Illinois Supreme Court’s decision in In re M.I., since the
Reporter of Decisions supreme court’s decision did not warrant a change in the outcome of
for the convenience of the instant case.
the reader.)


Decision Under           Appeal from the Circuit Court of Cook County, No. 08-JD-155; the
Review                   Hon. Patricia Mendoza, Judge, presiding.



Judgment                 Affirmed.
     Counsel on               Michael J. Pelletier, Alan D. Goldberg, and Heidi Linn Lambros, all of
     Appeal                   State Appellate Defender’s Office, of Chicago, for appellant.

                              Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg and
                              Annette Collins, Assistant State’s Attorneys, of counsel), for the
                              People.

     Panel                    JUSTICE PALMER delivered the judgment of the court, with
                              opinion.
                              Justice Lampkin concurred in the judgment and opinion.
                              Presiding Justice Gordon specially concurred, with opinion, upon
                              denial of rehearing.

                                               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 (EJJ) prosecutions 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
       (Omar M. I).
¶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. Nov. 27, 2013) (supervisory
       order). After considering the supreme court’s decision in M.I., we continue to affirm.
       However, we now find that Omar M. did not have standing to raise the claim that the EJJ is
       unconstitutionally vague.

¶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


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     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 and Standing1
¶6       As to the issue of standing to raise the vagueness challenge to the “conditions” provision
     of the EJJ statute, we find that M.I. and Omar M. are similarly situated. While there are
     differences in the procedural postures of the two cases, we find that these differences are not
     material to this analysis.
¶7       In M.I., 2013 IL 113776, ¶ 36, the supreme court determined that the respondent lacked
     standing to challenge the constitutionality of the “conditions” provision of the EJJ based on
     vagueness. 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 omitted.) Id. (quoting 705 ILCS
     405/5-810(6) (West 2010)). The State had filed a petition to revoke the stay of M.I.’s adult
     sentence based on his commission of a new felony offense. However, M.I.’s challenge was
     based on his claim that the statutory provision allowing revocation for violating the
     “conditions” of his sentence was unconstitutionally vague. Id.
¶8       Originally, M.I.’s conviction and sentence were affirmed by this court in In re M.I., 2011
     IL App (1st) 100865. Subsequently, the State filed a petition to revoke the stay of the adult
     sentence based on a new conviction, the “new offense” provision of the EJJ. Ultimately, our
     supreme court held that M.I. did not have standing to contest the vagueness of the
     “conditions” provision as it did not affect him. M.I., 2013 IL 113776, ¶ 36. Specifically, the
     court held:
                 “ ‘The purpose of the doctrine of standing is to ensure that courts are deciding
             actual, specific controversies, and not abstract questions or moot issues.’ In re
             Marriage of Rodriguez, 131 Ill. 2d 273, 279-80 (1989). In order to have standing to
             bring a constitutional challenge, a person must show himself to be within the class
             aggrieved by the alleged unconstitutionality. [Citation.] ‘The general rule is that
             courts will not consider the validity of a statutory provision unless the person
             challenging the provision is directly affected by it or the unconstitutional feature is so
             pervasive as to render the entire statute invalid.’ Morgan, 203 Ill. 2d at 482; People v.
             Palkes, 52 Ill. 2d 472, 480 (1972). *** Rather, a person must be directly or materially
             affected by the attacked provision and must be in immediate danger of sustaining a
             direct injury as a result of enforcement of the challenged statute. People v. Rogers,
             133 Ill. 2d 1, 8-9 (1989). ***
                 ***
                 ‘A party may not raise a constitutional challenge to a provision of a statute that
             does not affect him or her.’ In re Veronica C., 239 Ill. 2d 134, 147 (2010);
             [citations].” M.I., 2013 IL 113776, ¶¶ 32-34.
¶9       Finally as to M.I.’s challenge the court held:

         1
           We are well aware that Omar M. is now an adult and that this issue is moot. In Omar M. I,
     however, we held that the public interest exception to the mootness doctrine justified examination of
     this issue, and we continue to agree with that finding.

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               “Even if the filing of the petition to revoke the stay on the adult sentence conferred
               standing on respondent to challenge the constitutional validity of the revocation
               provision of the EJJ statute, respondent’s constitutional objection must still pertain to
               the part of the statute that affects him.” (Emphasis in original.) Id. ¶ 36.
¶ 10        In contrast to the procedural posture of M.I., Omar M. was given a 20-year stayed
       sentence under the EJJ and contested its constitutionality in his direct appeal prior to the
       filing of any petition to revoke. In Omar M. I, 2012 IL App (1st) 100866, ¶ 74, this court
       found that Omar M. had standing to raise his vagueness claim even though no action had
       been taken or may never be taken to revoke his stay because “respondent will live in fear that
       he may unknowingly revoke the stay through his conduct, and thus cause the court to impose
       his 20-year adult sentence.” In light of M.I., we now find that reasoning unpersuasive.
¶ 11        Regardless of the different procedural postures they were in, in regard to the “conditions”
       provision M.I. and Omar M. were similarly situated. At the time the petition to revoke was
       filed against M.I., that respondent was still subject to the revocation provisions of the EJJ.
       Even though the petition was based on the “new offense” provision, a petition based on
       violation of the “conditions” of that respondent’s sentence could be filed at any time during
       his minority. Thus, arguably M.I. would “live in fear that he may unknowingly revoke the
       stay through his conduct,” just as Omar M. However, the fact that M.I. could be living in fear
       of unknowingly revoking his stay was not enough for our supreme court to find that he had
       standing to raise a vagueness claim. Such a vague fear was not enough to satisfy the standing
       requirement elucidated in M.I. that the person must be directly or materially affected by the
       attacked provision and must be in immediate danger of sustaining a direct injury as a result of
       enforcement of the challenged statute. See M.I., 2013 IL 113776, ¶ 32.
¶ 12        Anticipating the argument that once M.I.’s petition to revoke for a new offense was
       granted the stay would be vacated and there would be nothing left to fear regarding the
       “conditions” provision, we find that argument to ignore the procedural posture of M.I. As the
       supreme court noted in M.I., the petition to revoke the stay of the adult sentence itself had
       been stayed. See id. ¶ 9. As a result, at the time M.I. made his vagueness claim he was still at
       risk of being violated under the “conditions” provision and yet he did not have standing to
       make that claim.
¶ 13        We acknowledge that in keeping with the above-cited principles, the supreme court
       specifically limited its decision in M.I. by noting:
                   “In the instant case, the State has filed a petition to revoke the stay of the adult
               sentence. Thus, 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. Further, we need not address
               the State’s contention that standing cannot arise until such a petition is actually
               granted because the respondent in the present case would lack standing even if the
               petition to revoke had been granted.” Id. ¶ 33.
       Nevertheless, the logic of M.I. necessarily leads to the conclusion that Omar M. lacked
       standing. As Omar M. would be living with the same fears as M.I. with regard to
       unknowingly violating the “conditions” provision, and as M.I. was found to not have
       standing, the same result befalls Omar M.
¶ 14        In Omar M. I, we noted the First Division of the First District had already held that
       similarly situated respondents lacked standing to challenge the EJJ prosecution statute for

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       vagueness. Omar M. I, 2012 IL App (1st) 100866, ¶ 71 (citing In re J.W., 346 Ill. App. 3d 1
       (2004), and In re M.I., 2011 IL App (1st) 100865). Rather than follow those cases, Omar M. I
       relied upon People v. P.H., 145 Ill. 2d 209 (1991), and In re Christopher K., 348 Ill. App. 3d
       130 (2004), aff’d in part and rev’d in part, 217 Ill. 2d 348 (2005). Those cases, however, are
       not on point. P.H. involved the constitutionality of the “gang-transfer” provision of the
       Juvenile Court Act. P.H., 145 Ill. 2d at 217-18. However, in P.H., the State had already filed
       a motion to permit prosecution of the minor under the criminal laws, pursuant to the
       “gang-transfer” statute, a provision that the trial court held unconstitutional. Id. at 217. In
       ruling that P.H. had standing to attack the constitutionality of the provision, the supreme
       court found that as a result of the filing of the petition, P.H. was in immediate danger of
       sustaining harm by enforcement of the allegedly unconstitutional provision. Id. at 220.
       Application of the “gang-transfer” provision to him could result in criminal prosecution with
       all of its inherent stigmas. Id. In contrast, in the case at bar, no petition to revoke has been
       filed and therefore Omar M. was not in immediate danger of sustaining harm by enforcement
       of the allegedly unconstitutional provision.
¶ 15       On the other hand, Christopher K., the minor respondent in In re Christopher K., was
       similarly situated with Omar M. Christopher K. was given an adult sentence that was stayed
       pursuant to the EJJ. Christopher K., 348 Ill. App. 3d at 135. In the direct appeal of his case,
       an attack on the vagueness of the statute was launched in the absence of the filing of any
       petition to revoke. Id. at 143. The State argued that Christopher K. had no standing to raise a
       vagueness claim as he had not suffered any present injury in need of redress. Id. at 144.
       Inexplicably, even though the standing argument was fully set forth, it was never answered
       by the appellate court. Instead, the court ignored the standing argument and went forward to
       address the merits of the vagueness claim without ever ruling on standing. See id. at 145-48.
¶ 16       In light of the guidance of our supreme court’s decision in M.I., as well as the established
       and on-point precedent of the appellate court decisions in J.W. and M.I., we find that Omar
       M. did not have standing to raise his vagueness claim.

¶ 17                                     II. Apprendi Violation
¶ 18       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.
¶ 19       In its analysis, the supreme court noted that the appellate court had been uniform in
       holding that the EJJ statute did not violate Apprendi because “the EJJ statute was not 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. I, 2012 IL App (1st) 100866, ¶ 59). The court agreed with that
       reasoning, finding that “[n]othing in the EJJ statute runs afoul of Apprendi.” M.I., 2013 IL
       113776, ¶ 44.
¶ 20       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.” Id. ¶ 46 (citing Omar M. I, 2012 IL App (1st) 100866, ¶ 63).

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¶ 21      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 with regard to this issue.


¶ 22                                        CONCLUSION
¶ 23       After reconsidering our decision in Omar M. I 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.

¶ 24      Affirmed.

¶ 25       PRESIDING JUSTICE GORDON, specially concurring:
¶ 26       The majority today concludes that the supreme court’s decision in In re M.I., 2013 IL
       113776, means that respondent in the instant case did not have standing to challenge the
       constitutionality of the EJJ statute on vagueness grounds. I do not find that the supreme
       court’s decision in M.I. changes our earlier conclusion that respondent has standing and,
       accordingly, I must specially concur.
¶ 27       In M.I., the supreme court determined that the respondent lacked standing to raise a
       vagueness challenge to the EJJ statute. 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, ¶ 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.
¶ 28       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.
¶ 29       I 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

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       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 “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, I do not find that the supreme court’s decision in M.I. changes our
       analysis concerning respondent’s standing in the instant case.
¶ 30       I do not find persuasive the majority’s attempt to draw an analogy between the situation
       present in the instant case and that of M.I. by claiming that “arguably M.I. would ‘live in fear
       that he may unknowingly revoke the stay through his conduct,’ just as Omar M.” (supra
       ¶ 11), nor can I agree with the majority’s implication that this argument was considered and
       rejected by the supreme court. See supra ¶ 11 (“[T]he fact that M.I. could be living in fear of
       unknowingly revoking his stay was not enough for our supreme court to find that he had
       standing to raise a vagueness claim.”). This argument was not considered by the supreme
       court, and for good reason: the State there had actually filed a petition to revoke the stay of
       the minor’s adult sentence, based on the minor’s commission of a new offense. M.I., 2013 IL
       113776, ¶ 9. Thus, the supreme court would not have needed to consider whether the minor
       “arguably” would be in fear of revocation of the stay on one basis when the revocation was
       actually already in the process of occurring on the other basis. To make it absolutely clear: if
       the stay was revoked on the basis of a commission of a new offense, then there would be no
       way that it could later be revoked again on the basis of violation of a condition of his
       sentence and the minor would have nothing to fear any longer.
¶ 31       The majority claims that such an argument “ignore[s] the procedural posture of M.I.,”
       because in that case, the petition to revoke the stay of the adult sentence had itself been
       stayed. Supra ¶ 12. However, acknowledging the fact that a stay can only be revoked once is
       not ignoring anything. It is true that the petition to revoke the stay of the adult sentence in
       M.I., filed after the appellate court opinion in that case, was itself stayed pending the supreme
       court’s decision. M.I., 2013 IL 113776, ¶ 9. However, I fail to see the significance of this stay
       in the majority’s position. The minor’s standing argument before the supreme court was
       focused on the fact that a petition to revoke had been filed. M.I., 2013 IL 113776, ¶ 31
       (“Respondent counters that since the petition to revoke the stay of adult sentence has been
       filed, he is in immediate danger of sustaining a direct injury as a result of the statute’s
       enforcement, and thus has standing.”). It had nothing to do with any threat posed by the stay
       of the petition to revoke. While the minor in M.I. could certainly have made that argument,
       there is absolutely no indication that he did so. Thus, there would have been no reason for the
       supreme court to sua sponte consider the implications of a stay that it imposed during the
       pendency of the case before it. Accordingly, the fact that the petition to revoke the stay was
       itself stayed has no effect on the issue present before us.


                                                   -7-
¶ 32        As a final matter, I must address the last three paragraphs of the majority’s analysis of the
       standing issue, in which the majority concludes that cases relied upon in the original Omar
       M. opinion “are not on point.” Supra ¶ 14. With all due respect to the majority, this analysis
       is beyond the scope of what we have been asked to do by the supreme court. Our review in
       the instant case is limited to reconsidering our earlier opinion in light of M.I., as directed in
       the supervisory order. “Where the Illinois Supreme Court enters a judgment remanding a
       cause to the appellate court, it vests that court with jurisdiction to take only such actions that
       conform to that mandate. The court has no authority to take any actions not in compliance
       with that mandate.” Style Manual for the Supreme and Appellate Courts of Illinois § I(G)(1)
       (4th ed. rev. 2012). When a court takes such action, it is patently wrong. The discussion of
       the other cases in the last three paragraphs is not related to the supreme court’s decision in
       M.I. and is not necessary for the resolution of the standing issue. Consequently, I believe that
       its inclusion is inappropriate.




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