                                       2017 IL App (1st) 140508-B
                                                                                 SECOND DIVISION
                                                                                   September 5, 2017

                                             No. 1-14-0508-B

     PEOPLE OF THE STATE OF ILLINOIS,                    )               Appeal from the
                                                         )               Circuit Court of
                           Plaintiff-Appellee,           )               Cook County, Illinois.
                                                         )
     v.                                                  )               No. 13 CR 14282
                                                         )
     JOSEPH BROWN,                                       )               Honorable
                                                         )               Rosemary Grant Higgins,
                           Defendant-Appellant.          )               Judge Presiding.

            JUSTICE MASON delivered the judgment of the court, with opinion.
            Justices Lavin and Pucinski concurred in the judgment and opinion.

                                                 OPINION

¶1          Defendant Joseph Brown was convicted of possession of heroin with intent to deliver and

     sentenced as a Class X offender pursuant to section 5-4.5-95(b) of the Unified Code of

     Corrections (730 ILCS 5/5-4.5-95(b) (West 2012)). Brown was 20 years old at the time of the

     narcotics transaction at issue but turned 21 before his conviction. In People v. Brown, 2015 IL

     App (1st) 140508 (Brown I), we vacated Brown’s sentence based upon our holding that the Class

     X sentencing statute required a defendant to be 21 years of age on the date of commission of the

     offense, not the date of conviction. Our supreme court reached the opposite conclusion in People

     v. Smith, 2016 IL 119659, and directed us to vacate Brown I.

¶2          We now address additional issues raised by Brown that we did not reach in Brown I

     because of our interpretation of the Class X statute. Brown argues that basing his eligibility for

     Class X sentencing on his age at the time of his conviction rather than at the time of the offense

     is a violation of (i) the prohibition against ex post facto laws, (ii) constitutional due process

     protections, and (iii) the constitutional right to equal protection. Although we are not
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     unsympathetic to Brown’s arguments, our supreme court has upheld similar sentencing schemes

     against claims of arbitrariness and due process violations. Accordingly, finding no constitutional

     infirmity in the statute, we affirm Brown’s sentence.

¶3                                           BACKGROUND

¶4          On July 3, 2013, 20-year-old Brown was arrested after an officer observed him engaging

     in the sale of heroin. On July 29, 2013, Brown was charged with possession of a controlled

     substance with intent to deliver. He turned 21 years old the next day.

¶5          Following a bench trial on November 18, 2013, Brown was found guilty of possessing

     more than 1 but less than 15 grams of heroin with intent to deliver, a Class 1 felony with a

     sentencing range of 4 to 15 years. Based on Brown’s two prior convictions for Class 2 felonies,

     the trial court found that he was subject to mandatory Class X sentencing and sentenced him to

     six years of imprisonment, the minimum term for a Class X offender. 730 ILCS 5/5-4.5-25(a)

     (West 2012) (sentencing range for a Class X felony is 6 to 30 years).

¶6          On appeal, Brown did not challenge his conviction, but he argued that he was ineligible

     for Class X sentencing based upon his age at the time of the offense. The Class X recidivist

     provision applies “[w]hen a defendant, over the age of 21 years, is convicted of a Class 1 or

     Class 2 felony” after having been convicted of two prior felonies of Class 2 or higher. 730 ILCS

     5/5-4.5-95(b) (West 2012). Brown argued that “over the age of 21 years” referred to a

     defendant’s age at the time the offense was committed, not at the time of conviction; alternately,

     he argued that measuring Class X eligibility by a defendant’s age at the time of conviction would

     be unconstitutional.

¶7          In Brown I, 2015 IL App (1st) 140508, we agreed with Brown’s interpretation of the

     statute and therefore did not reach the constitutional issues he raised. Following People v. Smith,



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       2016 IL 119659, ¶ 31, our supreme court directed us to vacate Brown I. We now address the

       constitutional issues raised by Brown, which were not raised in Smith.

¶8                                                 ANALYSIS

¶9               Brown contends that applying the Class X recidivist provision based on a defendant’s age

       on the date of conviction, rather than on the date the offense is committed, is unconstitutional

       because (i) it violates the prohibition against ex post facto laws, insofar as it punishes him for an

       event (his 21st birthday) occurring after the commission of the offense, (ii) it violates due

       process rights since there is no rational basis to increase a defendant’s punishment based on his

       age at the time of conviction, and (iii) it violates equal protection principles since similarly-

       situated defendants may be subject to different sentencing ranges based upon whether they turn

       21 years old before being convicted.

¶ 10             Although Brown did not raise these issues in the trial court, a party may challenge the

       constitutionality of a statute at any time. People v. Carpenter, 368 Ill. App. 3d 288, 291 (2006)

       (defendant had right to challenge constitutionality of statute for the first time on appeal). All

       statutes are presumed constitutional, and the party challenging a statute bears the burden of

       rebutting that presumption. People v. Greco, 204 Ill. 2d 400, 406 (2003). If reasonably possible,

       we will construe a statute in a way that upholds its constitutionality. Carpenter, 368 Ill. App. 3d

       at 291.

¶ 11                                        Ex Post Facto Prohibition

¶ 12             We begin by considering Brown’s contention that section 5-4.5-95(b) is an ex post facto

       law. Both the United States Constitution and the Illinois Constitution prohibit the enactment of

       ex post facto laws. U.S. Const., art. I, § 10; Ill. Const. 1970, art. I, § 16; see Hadley v. Montes,

       379 Ill. App. 3d 405, 408-09 (2008) (Illinois Constitution’s prohibition on ex post facto laws is



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       coextensive with that in the federal constitution) (citing People v. Cornelius, 213 Ill. 2d 178, 207

       (2004)). In determining whether a criminal law is ex post facto, courts apply a two-prong test:

              “[A] criminal law will be considered ex post facto where it (1) is retrospective in that it

              applies to events occurring prior to its enactment, and (2) falls into one of the traditional

              categories of prohibited criminal laws. [Citation.] These traditional categories include any

              statute that punishes as a crime an act previously committed and innocent when done;

              laws that make the punishment for a crime more burdensome after its commission; and

              statutes that deprive one charged with a crime of any defense available at the time when

              the act was committed.” People v. Pena, 321 Ill. App. 3d 538, 541 (2001) (citing Collins

              v. Youngblood, 497 U.S. 37, 42 (1990)).

       See also Lynce v. Mathis, 519 U.S. 433, 441 (1997) (“To fall within the ex post facto prohibition,

       a law must be retrospective—that is, it must apply to events occurring before its enactment—and

       it must disadvantage the offender affected by it [citation] by altering the definition of criminal

       conduct or increasing the punishment for the crime [citation].” (Internal quotation marks

       omitted)). The purpose of this prohibition is “to ensure that legislative enactments give fair

       warning of their effect and permit individuals to rely on their meaning until explicitly changed.”

       People v. Criss, 307 Ill. App. 3d 888, 896 (1999).

¶ 13          Section 5-4.5-95(b) satisfies the second prong of the definition of an ex post facto law

       since it “make[s] the punishment for a crime more burdensome after its commission” (Pena, 321

       Ill. App. 3d at 541). When Brown engaged in the drug transactions at issue in this case, he was

       20 years old and the sentencing range for his crime—possession of more than 1 but less than 15

       grams of heroin with intent to deliver—was 4 to 15 years. 720 ILCS 570/401(c)(1) (West 2012);

       730 ILCS 5/5-4.5-30(a) (West 2012). Only later did he turn 21 years old, which made him



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       subject to a mandatory Class X sentencing range of 6 to 30 years. 730 ILCS 5/5-4.5-25(a) (West

       2012).

¶ 14            But section 5-4.5-95(b) does not satisfy the first prong, that of retrospective application.

       Toia v. People, 333 Ill. App. 3d 523, 529 (2002) (under Pena, whether a law has retroactive

       effect is a separate prong—and, therefore, a separate inquiry—than whether the law falls into a

       category of prohibited criminal laws). The courts of this state, as well as the United States

       Supreme Court, have defined a retrospective law as one that applies to events occurring prior to

       its enactment. Pena, 321 Ill. App. 3d at 541; Lynce, 519 U.S. at 441; People v. Kotecki, 279 Ill.

       App. 3d 1006, 1010 (1996) (“A law is retroactive if it applies to events which occurred before

       the law was enacted.”); People v. Caruso, 152 Ill. App. 3d 1074, 1077 (1987) (to be

       ex post facto, a law “must be retrospective, that is, it must apply to events occurring before its

       enactment”). The Class X recidivist provision does not meet this element; it was enacted on

       January 1, 1977, well before Brown committed his offense. Accordingly, Brown cannot claim

       that he did not have “fair warning” (Criss, 307 Ill. App. 3d at 896) of the statute’s provisions.

¶ 15            Brown argues that the element of retroactivity is established “not by the enactment date

       on which the entire statute became effective, but by a second effective date contained within the

       terms of the statute itself”—i.e., a defendant’s 21st birthday. If this “second effective date”

       triggers after a defendant commits a crime, but before the defendant is convicted, then the

       punishment for the crime is increased. But, as discussed, this after-the-fact increase in

       punishment already satisfies the second prong of the test. So, in essence, Brown is asking us to

       collapse the two prongs of ex post facto analysis and hold that any law that “make[s] the

       punishment for a crime more burdensome after its commission” (Pena, 321 Ill. App. 3d at 541)

       is automatically a prohibited ex post facto law, irrespective of the date of its enactment. We



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       decline to adopt this proposed expansion of the definition of an ex post facto law. As cited above,

       courts have consistently defined retrospectivity by reference to the date of the law’s enactment,

       and Brown does not cite any cases to the contrary.

¶ 16           Brown additionally argues that section 5-4.5-95(b) violates the principles that undergird

       the prohibition on ex post facto laws. Since a prospective defendant under the age of 21 cannot

       necessarily predict whether he will be subject to Class X sentencing, Brown argues that the law

       fails to provide fair notice to such individuals. On the particular facts of this case, we disagree.

       Brown sold heroin on July 3, 2013, less than a month before his 21st birthday on July 30. He

       could reasonably have predicted that if caught and charged, his 21st birthday would pass before

       the conclusion of his trial, and a guilty verdict would subject him to Class X sentencing. Under

       such circumstances, we cannot say that Brown lacked fair notice of the potential penalty for his

       actions. People v. P.H., 145 Ill. 2d 209, 219 (1991) (in addressing constitutional issue, court

       “will not formulate a rule broader than that necessitated by the precise situation in question”);

       In re J.W., 346 Ill. App. 3d 1, 13 (2004) (same). Accordingly, we find that, as applied to Brown,

       section 5-4.5-95(b) is not an unconstitutional ex post facto law.

¶ 17                                               Due Process

¶ 18           Brown next argues that section 5-4.5-95(b) violates constitutional due process protections

       because (i) it does not provide fair notice to defendants as to whether they will be subject to

       Class X sentencing and (ii) it is arbitrary, in that there is no rational basis for predicating Class X

       eligibility upon a defendant’s age at the time of conviction. We consider these contentions in

       turn.

¶ 19           Due process requires that criminal defendants have fair warning of the criminal penalties

       that will attach to their conduct. Marks v. United States, 430 U.S. 188, 191 (1977). Thus, “[a]



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       sentencing statute may be void for vagueness if it does not state with sufficient clarity the

       consequences of violating a given criminal statute.” (Internal quotation marks omitted.) People v.

       Winningham, 391 Ill. App. 3d 476, 482 (2009). However, due process does not require

       “ ‘mathematical certainty in language.’ ” Id. (quoting People v. Ramos, 316 Ill. App. 3d 18, 26

       (2000)). In cases that do not implicate the first amendment, due process requires that a statute be

       sufficiently definite so that (i) a person of ordinary intelligence has fair warning as to what is

       prohibited and (ii) application of the statute does not depend merely on the private conceptions

       of law enforcement officers and triers of fact. People v. Sharpe, 216 Ill. 2d 481, 527 (2005);

       People v. Vasquez, 2012 IL App (2d) 101132, ¶ 54.

¶ 20          The State argues that section 5-4.5-95(b) provides the requisite fair warning because its

       text is clear: any defendant over the age of 21 years at the time of conviction will be subject to

       the Class X recidivist provision if the other conditions in the statute are met. Brown argues that

       this warning is illusory since defendants under the age of 21 have no way of knowing when they

       commit their offenses whether they will be subject to Class X sentencing. He points out that the

       date of conviction is affected by a wide variety of factors outside a defendant’s control. Such

       factors include the timing of the prosecutor’s charging decision, how crowded the court’s docket

       is, and the backlog of cases handled by a defendant’s attorney or public defender. Some cases

       may also be delayed due to DNA testing and/or fitness determinations. 725 ILCS 5/103-5(c), (e)

       (West 2012). Thus, Brown hypothesizes that a person of ordinary intelligence under the age of

       21 who is contemplating criminal activity may not know the sentencing range that will attach to

       his conduct.

¶ 21          Brown’s arguments are not dependent on a presumption of bad faith or intentional delay

       by either trial judges or prosecutors. There is certainly no evidence of bad faith by any of the



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       government actors in Brown’s case. But even in the absence of intentional foot-dragging,

       unpredictable delays can and will occur. Thus, Brown argues, he did not have notice on July 3,

       2013, when he committed the offense, of what his sentencing range would be.

¶ 22          Again, under the facts of this particular case, we disagree. As discussed, Brown

       committed the crimes at issue less than a month before his 21st birthday. Although he might not

       have known his sentencing range with “ ‘mathematical certainty’ ” (Winningham, 391 Ill. App.

       3d at 482 (quoting Ramos, 316 Ill. App. 3d at 26)), a person of ordinary intelligence would have

       known that if he were caught and charged and chose to proceed to trial, any conviction would

       very likely occur after he turned 21. Accordingly, limiting our analysis to the facts before us (see

       P.H., 145 Ill. 2d at 219; J.W., 346 Ill. App. 3d at 13), we find that Brown had the requisite fair

       warning of the criminal penalties attaching to his conduct.

¶ 23          Due process additionally prohibits the arbitrary or unreasonable exercise of the State’s

       police power. People v. Wilson, 214 Ill. 2d 394, 402 (2005). To constitute a legitimate exercise

       of the police power, a statute “ ‘must bear a reasonable relationship to the public interest

       intended to be protected, and the means adopted must be a reasonable method of accomplishing

       the desired result.’ ” Id. (quoting People v. Falbe, 189 Ill. 2d 635, 640 (2000)).

¶ 24          Brown argues that section 5-4.5-95(b) fails to meet this standard. If we were writing on a

       clean slate, we would be inclined to agree. The Class X recidivist provision is limited to those

       over 21 based on the legislature’s recognition that young defendants are both less culpable and

       more amenable to rehabilitation than older offenders. People v. Williams, 358 Ill. App. 3d 363,

       367 (2005); see also People v. Storms, 254 Ill. App. 3d 139, 142 (1993) (section 5-4.5-95(b)

       reflects the presumption that individuals under the age of 21 have greater rehabilitative potential

       than older defendants). But that determination would logically be based upon defendant’s actions



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       and state of mind at the time of the offense, not at some future point in time. As discussed, the

       passage of time between a defendant’s commission of an offense and his conviction is dependent

       on a wide variety of factors that are entirely unrelated to the defendant’s culpability or his

       potential for rehabilitation. A young defendant may effectively be penalized because the circuit

       court has an overcrowded docket or his public defender has a large backlog of cases—which

       does not imply any fault on the part of the court or the public defender but does highlight the

       arbitrariness inherent in calculating Class X eligibility based upon the date a verdict is finally

       rendered.

¶ 25          But we do not write on a clean slate. Our supreme court has upheld sentencing schemes

       that are based upon a defendant’s age at the time of sentencing (In re Griffin, 92 Ill. 2d 48

       (1982)) and at the time of charging (People v. Fiveash, 2015 IL 117669), even though they result

       in more severe punishment than the defendant would have been subject to when the offense was

       committed.

¶ 26          In Griffin, our supreme court interpreted a provision of the Juvenile Court Act providing

       that a delinquent minor could be committed to the Illinois Department of Corrections “ ‘if he is

       13 years of age or older.’ ” Griffin, 92 Ill. 2d at 50 (quoting Ill. Rev. Stat. 1977, ch. 37, ¶ 705-

       2(1)(a)(5)). Griffin was 12 years old when he was adjudicated a delinquent for committing armed

       robbery and aggravated battery. The trial court continued the case until four days after Griffin’s

       13th birthday and then committed him to the Illinois Department of Corrections. Id. Our supreme

       court upheld the disposition, holding that it was the minor’s age at the time of the dispositional

       hearing and not at the time of the offense that determined his eligibility for incarceration. Id. at

       52. The court further stated:




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                      “There is no merit to the contention that our interpretation is so arbitrary that the

              legislature could not have intended it. The interpretation is no more arbitrary than the

              statutory declaration that a minor’s 13th birthday endows him with a ‘criminal capacity,’

              or Griffin’s suggestion that eligibility for commitment should depend upon the precise

              date he is found to be delinquent. Griffin’s complaint is actually against the legislature’s

              plain and unambiguous language expressing the legislative intent.” Id. at 53.

¶ 27          Although Griffin did not raise any constitutional challenge to the statute, the court’s

       discussion indicates that it did not view the statute as so arbitrary that it would violate principles

       of due process. According to the court, basing an individual’s sentencing options on his age at

       the time of sentencing is “no more arbitrary” than basing them on his age at the time of the

       commission of the offense.

¶ 28          The court confronted a similar issue in Fiveash, 2015 IL 117669. In 2003, when

       defendant was 14 or 15 years old, he sexually assaulted his 6-year-old cousin. Nine years later, in

       April 2012, police unexpectedly uncovered information relating to the assault. The following

       month, the 23-year-old defendant was charged with aggravated criminal sexual assault and, since

       he was no longer a minor, was prosecuted in adult criminal court. Id. ¶ 10. Thus, his sentencing

       range was effectively determined by his age when he was charged, rather than his age when he

       committed the offense. Defendant argued, among other things, that this violated his due process

       rights because adult criminal court could impose a much harsher sentence than could have been

       imposed in juvenile court for the same offense. Id. ¶ 43.

¶ 29          Fiveash rejected this argument. The court acknowledged that “juvenile offenders tried in

       adult criminal court could potentially be subjected to harsher adult punishments without proper

       consideration of their unique physical and mental characteristics.” Id. ¶ 45 (citing Roper v.



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       Simmons, 543 U.S. 551 (2005); Graham v. Florida, 560 U.S. 48 (2010); Miller v. Alabama, 567

       U.S. 460 (2012) (recognizing the importance of considering juveniles’ unique characteristics in

       sentencing)). But the court held that due process does not require juveniles’ unique

       characteristics to be taken into account when the potential punishment is a term of imprisonment,

       rather than a life sentence or the death penalty. Id. ¶ 45. Thus, the court found that prosecuting

       defendant in adult criminal court—and imposing an adult sentence notwithstanding his age at the

       time he committed the offense—did not violate due process principles.

¶ 30          Section 5-4.5-95(b), which dictates Class X eligibility based upon a defendant’s age at

       the time of conviction, is no more arbitrary than the sentencing schemes upheld in Griffin and

       Fiveash, both of which allowed a defendant’s sentence to be increased based upon the passage of

       time after the commission of the offense. Brown argues that he is being penalized for the length

       of his trial proceedings, which was dependent on factors outside of his control and unrelated to

       either his culpability or his potential for rehabilitation. And as we noted above, we are not

       unsympathetic to this argument, although here the delay between Brown’s charge and his

       conviction was a brief four months. But Griffin was similarly penalized for the length of his

       dispositional proceedings, while Fiveash was penalized for the length of time it took for his

       crime to be reported, and our supreme court found no constitutional defect in either case.

       Additionally, Brown was not a juvenile when he committed the crime at issue so the

       constitutional concerns raised in Fiveash about the unique characteristics of juveniles do not

       apply. We must therefore reject Brown’s argument that section 5-4.5-95(b) violates his due

       process rights.

¶ 31                                           Equal Protection




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¶ 32          Finally, Brown argues that section 5-4.5-95(b) violates equal protection principles

       because it subjects similarly-situated defendants to different sentencing ranges. He invites us to

       consider two defendants who are born on the same date, have the same criminal record, and

       commit the same Class 1 felony on the same date, yet one is convicted before his 21st birthday

       while the other is convicted afterwards. These defendants would be subject to different

       sentencing ranges. Brown contends that this distinction is arbitrary and serves no rational

       legislative purpose.

¶ 33          Under the equal protection clauses of the United States and Illinois Constitutions (U.S.

       Const., amend. XIV; Ill. Const. 1970, art. I, § 2; see Rudd v. Lake County Electoral Board, 2016

       IL App (2d) 160649, ¶ 13 (same standards are applied under both state and federal equal

       protections clauses)), the State must treat “similarly situated” individuals in a similar manner,

       rather than “lay[ing] an unequal hand on those who have committed intrinsically the same

       quality of offense.” (Internal quotation marks omitted.) People v. Reed, 148 Ill. 2d 1, 7 (1992);

       see also People v. J.F., 2014 IL App (1st) 123579, ¶ 14. Because classification based on age is

       not a suspect classification, we apply the rational basis test, under which we will uphold the

       statute as long as it bears a rational relationship to a legitimate state goal. Williams, 358 Ill. App.

       3d at 366 (citing Reed, 148 Ill. 2d at 7-8).

¶ 34          As with the previous issue, if there were no precedent on this issue, we would be inclined

       to agree with Brown. Brown is similarly situated to an individual who was born on the same day

       and committed the same crime on the same date but, by happenstance, was convicted before his

       21st birthday, thus escaping mandatory Class X sentencing. But under the reasoning of Griffin,

       92 Ill. 2d at 50, and Fiveash, 2015 IL 117669, ¶ 45, we cannot say that Brown has met his

       burden to establish an equal protection violation. As noted, the Class X recidivism provision is



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       no more arbitrary than the legislative scheme upheld in Griffin, where the court specifically

       rejected respondent’s arbitrariness argument, or the one upheld in Fiveash, where the court

       rejected defendant’s due process argument under the rational basis test.

¶ 35          Finally, Brown argues, and the State agrees, that his mittimus should be corrected to

       accurately reflect the name of his conviction. Brown was convicted of possession of heroin with

       intent to deliver under section 401(c)(1) of the Illinois Controlled Substances Act (720 ILCS

       570/401(c)(1) (West 2012)). The mittimus erroneously reflects a conviction for “MFG/DEL,”

       referring to manufacturing and delivery of narcotics. Therefore, we direct the clerk of the circuit

       court to issue a corrected mittimus to reflect that Brown was convicted of possession of more

       than 1 but less than 15 grams of a controlled substance (heroin) with intent to deliver. People v.

       Magee, 374 Ill. App. 3d 1024, 1035-36 (2007) (remand unnecessary to correct mittimus because

       appellate court has authority to order clerk to make the necessary correction).

¶ 36                                             CONCLUSION

¶ 37          The Class X recidivist provision is of questionable legislative efficacy, insofar as it

       applies to defendants such as Brown, who commit offenses before the age of 21 but turn 21

       before their conviction. Such defendants are essentially punished for the passage of time, caused

       by factors outside their control that are unrelated to either their culpability or capacity for

       rehabilitation. Nevertheless, based on controlling precedent from our supreme court, the statute

       is not an ex post facto law, nor does it violate the due process and equal protection guarantees of

       the United States and Illinois constitutions. Accordingly, we affirm Brown’s sentence and direct

       the clerk of the circuit court to correct the mittimus to accurately reflect the offense for which he

       was convicted.

¶ 38          Affirmed; mittimus corrected.



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