People v. Collins , 2023 IL App (1st) 221328-U ( 2023 )

No. 1-22-1328
Order filed August 18, 2023
Fifth Division
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court
) of Cook County.
Respondent-Appellee, )
)
v. ) No. 2017 CR 02675
)
TORIANO COLLINS, ) Honorable
) James Michael Obbish,
Petitioner-Appellant. ) Judge Presiding.
PRESIDING JUSTICE DELORT delivered the judgment of the court.
Justice Lyle concurred in the judgment. Justice Mitchell dissented.
ORDER
¶1 Held: We reverse defendant’s armed habitual criminal conviction because a conviction
for an offense he committed when he was a minor does not qualify as a predicate offense.
We reduce the conviction to unlawful possession of a weapon by a felon and remand for
resentencing.
¶2 BACKGROUND
¶3 Defendant Toriano Collins was charged with unlawful possession of a weapon by a felon
(UUWF), which was elevated to the more serious crime of armed habitual criminal (AHC)
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because, when he committed the UUWF, he had already been convicted of two qualifying
predicate offenses: a 2013 drug crime and a 2015 gun offense. He now argues that, due to a
legislative amendment, his 2013 conviction did not qualify as a predicate offense, and therefore
the AHC conviction cannot stand because there was only one qualifying predicate offense. We
reverse the AHC conviction, reduce it to UUWF, and remand for resentencing.
¶4 FACTS
¶5 In 2013, Collins was convicted of delivery of a controlled substance in case number 13 CR
12839. Collins was 17 years old when he committed that offense. In 2015, he was convicted of
UUWF in case number 15 CR 00095. In this third prosecution, Collins was charged with UUWF
and convicted of AHC on the basis of his two prior convictions. In defendant’s first appeal, we
affirmed his 10-year AHC sentence over his contention that the circuit court improperly relied on
evidence not presented at trial in aggravation in imposing the sentence. Further details regarding
the procedural and factual history are set forth in that decision. People v. Collins, 2021 IL App
(1st) 182399-U.
¶6 On January 19, 2022, Collins filed a petition for relief pursuant to section 2-1401 of the
Code of Civil Procedure (735 ILCS 5/2-1401) (West 2020)). In support of the petition, Collins
argued that one of the two prior offenses—the 2013 controlled substance conviction—did not
qualify as a predicate offense because he was only 17 years old when he committed that offense.
At that time, 17-year-old defendants were prosecuted as adults for such offenses. However, under
the 2014 amendment to the Juvenile Court Act (Act), such defendants would now be prosecuted
in juvenile court, and juvenile offenses do not qualify as predicate offenses under the AHC statute.
Collins contended that the 2014 amendment applied retroactively. Therefore, Collins argued, his
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controlled substance conviction did not qualify as a predicate offense, and his AHC conviction
must be reduced to UUWF.
¶7 The circuit court issued a written opinion dismissing Collins’ petition. The court held that
the amendment to the Act did not apply retroactively. This appeal followed.
¶8 ANALYSIS
¶9 On appeal, Collins makes the same argument as he did in his section 2-1401 petition:
because his 2013 conviction did not qualify as a predicate offense under the new law, which applies
retroactively, his AHC conviction must be reversed.
¶ 10 We first address two threshold matter raised by the State. The State urges us to dismiss this
appeal because Collins’ section 2-1401 petition was untimely filed. It is true that petitions brought
under section 2-1401 must generally be filed within two years after entry of judgment. 735 ILCS
5/2-1401(c), (f) (West 2022); People v. Thompson, 2015 IL 118151, ¶¶ 28-29. However, timeliness
is an affirmative defense that must be raised in the circuit court; otherwise, it is forfeited. People
v. Cathey, 2019 IL App (1st) 153118, ¶¶ 14-19. The record does not indicate that the State ever
raised this argument in the circuit court. As the State has forfeited its timeliness argument, we will
honor its forfeiture and decline to dismiss Collins’ petition on that ground.
¶ 11 The State also argues that it “appears” that it did not receive proper service of Collins’
section 2-1401 petition. This argument is unpersuasive. “ ‘The object of process is to notify a party
of pending litigation in order to secure his appearance.’ ” People v. Ocon, 2014 IL App (1st)
120912, ¶ 23 (quoting Professional Therapy Services, Inc. v. Signature Corp., 223 Ill. App. 3d
902, 910 (1992)). In considering whether a party provided sufficient notice, courts focus not on
formalities, but whether the “object and intent of the law were substantially attained thereby.”
(Internal quotation marks omitted.) Ocon, 2014 IL App (1st) 120912, ¶ 23 (quoting Professional
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Therapy Services, 223 Ill. App. 3d at 910-11 (quoting In re Marriage of Wilson, 150 Ill. App. 3d
(1986) , quoting Fienhold v. Babcock, 275 Ill. 282, 289- 90 (1916)) . Here, the State concedes that
an assistant state's attorney appeared in a status call during which the petition was discussed. The
record contains no indication that the State objected to service in the cow1 below. As the State
appeared , the object and intent of the law were attained. By appearing in court, the State waived
any challenge it may have had regarding service. Accordingly, we decline to dismiss the petition
on that ground.
1 12 That brings us to the merits. Ultimately, this case revolves around an issue of statutory
interpretation. We review the construction of statutory language de nova. People v. Jones, 2023
IL 127810, 1 22 (citing People v. Gonzalez, 239 Ill. 2d 471 , 479 (2011)).
1 13 Section 24-1. 7 of the Criminal Code provides, in relevant part, as follows:
"A person commits the offense of being an armed habitual criminal if he
***possesses*** any firearm after having been convicted a total of 2 or more times of
any combination of the following offenses:
***
*** unlawful use of a weapon by a fe lon***
*** [and] any violation of the Illinois Controlled Substances Act *** that is
punishable as a Class 3 felony or higher. " 720 ILCS 5/24-1.7 (West 2016).
1 14 This case involves the interplay of the Criminal Code and the Act. Until the end of 2013,
minors could be charged under the Criminal Code as adults for certain crimes. A 20 14 amendment
to the Act changed that practice. As of January 1, 20 14, with a few exceptions not relevant here,
"no minor who was under 18 years of age at the time of the alleged offense may be prosecuted
under the criminal laws of this State." 705 ILCS 405/5-120 (West 2016) . The question before us
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is thus whether the 2014 amendment to the Act require us to reverse Collins’ AHC conviction and
remand his case to the circuit court for resentencing.
¶ 15 Our research has revealed four recent, similar cases in which our court interpreted the effect
of the amendment at issue. We look to these for guidance in resolving the appeal before us.
¶ 16 In People v. Gray, 2021 IL App (1st) 191086, a jury found the defendant guilty of being
an armed habitual criminal. Id. ¶ 6. One of the two predicate offenses that formed the basis for that
conviction was a narcotics crime that Gray committed in 2002 when he was 17 years old. Id. Gray
appealed the AHC conviction, arguing that the narcotics conviction could not support the AHC
charge because he was a juvenile at the time of the narcotics offense, and under the statutes now
in effect, his offense would be tried in juvenile court, outside the jurisdiction of the criminal courts.
Id. ¶ 9. We reversed his AHC conviction, reasoning that because at the time of the AHC charge in
2016, Gray could not have been convicted of the narcotics crime he was found guilty of in 2002;
he would have been prosecuted in juvenile court for that offense. Therefore, it did not qualify as a
predicate offense necessary for an AHC conviction. Id. ¶ 16. We note that on November 30, 2022,
our supreme court granted a petition for leave to appeal in People v. Gray (Ill., Nov. 30, 2022).
¶ 17 In People v. Dawson, 2022 IL App (1st) 190422, a jury found the defendant guilty of being
an armed habitual criminal. Id. ¶ 1. Both of the predicate offenses were armed robberies that
Dawson committed in 2013 at the age of 17. Id. ¶ 11. Dawson appealed the AHC conviction,
arguing that neither robbery conviction could support the AHC charge because he was a juvenile
at the time of both offenses. Id. ¶ 15. We reduced Dawson’s AHC conviction to the lesser included
offense of aggravated unlawful use of a weapon. Id. ¶ 67. We concluded that the State had not met
its burden of proof—beyond a reasonable doubt—in showing that Dawson had two qualifying
adult convictions under the law in effect at the time of his AHC charge. Id. ¶ 48. That is, though
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Dawson did have two adult convictions prior to the 2014 amendment, the State did not prove that
those convictions would still be classified as adult convictions after the amendment came into
force. Accordingly, the AHC conviction could not stand.
¶ 18 People v. Williams, 2020 IL App (1st) 190414, did not deal with an AHC conviction, but
it did consider whether a crime convicted by a 17-year-old could qualify as a predicate offense to
qualify him for Class X sentencing. Id. ¶¶ 1, 13. Therefore, we find the decision instructive. In that
case, defendant was convicted of robbery in 2018, and the State advised the court of the
defendant’s mandatory Class X sentencing based on two prior convictions: a 2014 robbery and a
2013 burglary, the latter having been committed when he was 17 years old. Id. ¶ 11. We vacated
Williams’ Class X sentencing and remanded his case for resentencing. Id. ¶ 24. We reasoned that,
had Wiliams committed the 2013 burglary at the time of the 2018 robbery, he would have been
adjudicated as a juvenile, and that offense would not have qualified as a predicate offense for Class
X sentencing. Id. ¶ 21.
¶ 19 However, the court in People v. Irrelevant, 2021 IL App (4th) 200626, reached a different
conclusion. In that case, the defendant committed a burglary in 1983 when he was 17 years old,
and argued that could not qualify as a predicate offense for his AHC conviction. Id. ¶ 20. The court
disagreed, stating that it would be “speculative to assume defendant would not have been subject
to a discretionary transfer had he committed his 1983 offense in 2016 at the age of 17.” Id. ¶ 38.
¶ 20 We find the statutory interpretation and analyses of the decisions in Gray, Dawson, and
Williams persuasive, we adopt their reasoning as our own, and we use them to resolve this appeal.
Here, as in those cases, the defendant was 17 years old when he committed an offense that qualified
as a predicate offense that led to his armed habitual criminal conviction. However, shortly after he
was convicted of the predicate offense, an amendment to the Juvenile Court Act removed minors,
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with a few exceptions not relevant here, from the jurisdiction of the adult criminal courts. Thus,
under the amendment, Collins could not have been convicted of the controlled substance crime as
that would have been adjudicated in juvenile court. Because Collins was a minor at the time of one
of the prior offenses, it did not qualify as a predicate offense sufficient for the AHC conviction to
stand.
¶ 21 In so holding, we note our concern that, notwithstanding the apparent split in appellate
authority, the circuit court followed the precedent from the Fourth District rather than the two
precedents from this district. The circuit court was required to follow our decisions in Gray and
Williams, as they were already decided when the court issued its decision denying Collins’ petition
for relief on April 22, 2022. Under stare decisis, courts are required to follow the decisions of
higher courts. O’Casek v. Children’s Home and Aid Society of Illinois, 229 Ill. 2d 421, 440 (2008).
When these decisions are in conflict, the circuit court must follow the precedent of the appellate
court of its district. Schramer v. Tiger Athletic Ass’n of Aurora, 351 Ill. App. 3d 1016, 1020 (2004).
¶ 22 In Gray and Williams, we held that an offense committed by a 17-year-old well before the
2014 amendment did not qualify as a predicate offense. Based on that precedent, the circuit court
here was compelled to find that Collins’ controlled substance offense he committed at age 17 did
not qualify as a predicate offense for an AHC conviction. In sum, while the circuit court may have
disagreed with the reasoning and outcome of the appeals in Gray and Williams, and was free to
express its disagreement with them, it was required to follow their holdings under stare decisis.
¶ 23 CONCLUSION
¶ 24 For these reasons, we reduce Collins’ AHC conviction to the lesser included offense of
UUWF and remand for resentencing. See, e.g., People v. Dawson, 2022 IL App (1st) 190422, ¶ 67.
¶ 25 Reversed and remanded.
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¶ 26 JUSTICE MITCHELL, dissenting:
¶ 27 The majority opinion does what the General Assembly specifically declined to do: it makes
retroactive the 2014 amendment to the Juvenile Court Act raising the age limit for prosecution in
adult criminal court from 17 to 18. That amendment is prospective only and applies to “violations
or attempted violations committed on or after [January 1, 2014,] the effective date of this
amendatory Act.” (Emphasis added.) 705 ILCS 405/5-120 (West 2014). As such, the 2014
amendment can have no application to our defendant Toriano Collins’s 2013 felony conviction for
delivery of a controlled substance. Having been convicted of two qualifying predicate felonies
(from 2013 and 2015), Collins stands properly convicted of armed habitual criminal.
¶ 28 For this reason, I respectfully dissent. I would affirm Collins’s conviction and sentence.
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