In re Shermaine S.

2015 IL App (1st) 142421
No. 1-14-2421
Opinion filed January 9, 2015
Third Division
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
In re SHERMAINE S., a Minor ) Appeal from the Circuit Court
) of Cook County.
(The People of the State of Illinois, )
)
Petitioner-Appellee, ) No. 14 JD 768
)
v. )
) The Honorable
Shermaine S., a Minor, ) Stuart Katz,
) Judge, presiding.
Respondent-Appellant). )
______________________________________________________________________________
JUSTICE HYMAN delivered the judgment of the court, with opinion.
Presiding Justice Pucinski and Justice Lavin concurred in the judgment and opinion.
OPINION
¶1 Respondent contends the habitual offender provision of the Juvenile Court Act of 1987
(705 ILCS 405/5-815 (West 2012)) is unconstitutional under the eighth amendment of the
United States Constitution (U.S. Const., amend. VIII) and the proportional penalties clause of
the Illinois Constitution. (Ill. Const. 1970, art I., § 11). The gist of his argument is that (i) the
mandatory sentencing provision violates the eighth amendment by precluding the sentencing
court from taking into consideration individualized factors about the minor, including the
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offender's youth and attendant characteristics as delineated by the United States Supreme
Court in Miller v. Alabama, 567 U.S. ___, ___, 132 S. Ct. 2455, 2468 (2012), and (ii) taking
away the sentencing court's discretion violates the proportionate penalties clause of the
Illinois Constitution, which mandates a court consider rehabilitation in imposing a sentence.
We are compelled to affirm based on existing precedent set forth some 35 years ago in
People ex rel. Carey v. Chrastka, 83 Ill. 2d 67 (1980).
¶2 Following a jury trial, respondent, 17-year-old Shermaine S., was convicted of robbery
for taking an iPhone. Shermaine was adjudicated a delinquent minor and, because this was
his third offense, sentenced as a habitual juvenile offender and committed to the Department
of Juvenile Justice (DJJ) until his twenty first birthday as required by section 5-815(f) of the
Juvenile Court Act of 1987 (Act) (705 ILCS 405/5-815(f) (West 2012)).
¶3 BACKGROUND
¶4 On March 7, 2014, the State filed a petition for adjudication of wardship for Shermaine,
who was 16 years old at the time. The petition alleged that Shermaine stole an iPhone from
Ashley Bradley and charged him with one count each of robbery, theft from person, and
simple battery. The State proceeded on one count of robbery and entered nolle posequi on the
other two counts. On March 13, 2014, the State gave notice of its intent to charge Shermaine
as a habitual juvenile offender under section 5-815 of the Act (705 ILCS 405/5-815 (West
2012)), based on Shermaine's two prior adjudications for burglary.
¶5 At trial, Ashley Bradley testified that on March 6, 2014, she was walking home at about
11:30 a.m. near 46th Street and Lake Park Avenue, Chicago. As Bradley listened to music on
her iPhone, a person she identified as Shermaine grabbed her from behind and reached for
her phone, which she was carrying in her right hand. Bradley turned around and looked at
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Shermaine's face for a "good two seconds." She said Shermaine told her to give him the
phone but she resisted and tried to pull away. Shermaine then twisted her right arm, threw her
to the ground, took the phone along with a Target bag she was holding in her left hand, and
ran off. Bradley and a man standing nearby ran after Shermaine west on 46th Street and saw
Shermaine turn right and head north on Woodlawn Avenue when they lost sight of him.
Bradley used the man's cell phone to call the police.
¶6 A few minutes later, two Chicago police officers, Isaac Lee and Arturo Martinez, arrived
in a marked squad car. The bystander who had assisted Bradley left the scene and was not
questioned by the police. Bradley described the perpetrator as an 18- to 21-year-old African
American male, 5 feet 8 inches to 6 feet tall, with a light to medium build, dreadlocks, dark
skin, and wearing a long, black coat. Lee and Martinez drove Bradley around the area, and
within about five minutes, Bradley saw Shermaine on the street and when he was about 15
feet away told the officers, "That's him."
¶7 Officer Lee testified that Shermaine was walking briskly, but when he saw the squad car,
he turned and started to run away. The officers followed Shermaine to a vacant lot, where
Lee got out of the car and chased Shermaine on foot. Lee followed Shermaine to the back of
an apartment building at 4335 South Berkeley. Lee said that as Shermaine went up the back
steps, he saw Shermaine drop something into the vacant lot next door. Lee continued to
pursue Shermaine, who was banging on the apartment door but was unable to gain entry. Lee
arrested Shermaine on the apartment's porch landing. Lee later retrieved the object
Shermaine dropped, Bradley's cell phone.
¶8 Shermaine testified that on March 6, 2014, he was visiting his aunt at her second-floor
apartment at 4335 South Berkley. He left the apartment sometime before noon, and as he was
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walking to meet his mother, a man that Shermaine recognized from the neighborhood
approached and offered to sell him a cell phone for $30. Shermaine said he "knew there was
something to it, but [he] just bought" it anyway because he needed a phone. Shermaine
continued walking. When he got to Drexel Avenue, Shermaine saw a university security
police car nearby, got worried because he knew the phone was "not legit," turned around and
started walking back to his aunt's apartment. He said a police squad car then drove up and
almost hit him. Shermaine starting running back to his aunt's apartment building, with the
police car in pursuit. Shermaine went to the back of the apartment and banged on the door,
but no one opened it. Shermaine threw the phone away and was placed under arrest.
Shermaine denied having gone to 46th Street and Park Avenue that day, said he had never
seen Ashley Bradley before the trial, and denied stealing her cell phone. On cross-
examination, Shermaine stated that he could not identify the person from whom he bought
the cell phone or remember what the man was wearing but described him as about his own
age, with a similar hair style and hair color.
¶9 The jury found Shermaine guilty on one count of robbery. At the sentencing hearing, the
State argued that Shermaine should be sentenced as a habitual juvenile offender based on two
dispositions for burglary in 2012 and 2013. Certified copies of court date summaries for the
two prior adjudications were entered into evidence. Defense counsel acknowledged that the
trial judge was "limited in discretion in this matter," because the prerequisites were met to
sentence Shermaine as a habitual juvenile offender.
¶ 10 Before sentencing Shermaine, the trial judge acknowledged he received Shermaine's
social investigation report. The report stated, among other things, that in 2007, Shermaine
was removed from his mother's custody for about a year in response to a report of child
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endangerment. Shermaine's father had numerous arrests and served time in the Department of
Corrections, and Shermaine's mother was arrested for prostitution in 2012 and received a
sentence of three months' supervision. Shermaine also had numerous contacts with law
enforcement for various offenses, including battery, burglary, and possession of a stolen
motor vehicle. In 2011, Shermaine was shot in the leg while standing on a friend's porch.
Shermaine was living with his mother in Gary, Indiana, and the whereabouts of his father
were unknown. The report indicated that Shermaine loves his parents but that because of
frequent fights with his mother, including physical violence against her, he has lived
elsewhere for periods of time.
¶ 11 The circuit court found that it was in best interest of Shermaine and the public for
Shermaine to be adjudged a ward of the court and that his parents were unfit or unable to care
for him. The court also found, based on Shermaine's prior dispositions, that he was a habitual
juvenile offender and sentenced him to a mandatory term of commitment to the DJJ until his
twenty first birthday.
¶ 12 ANALYSIS
¶ 13 Shermaine contends the habitual juvenile offender provision of the Act violates the eighth
amendment of the United States Constitution and the proportionate penalties clause of the
Illinois Constitution because it removes the trial court's discretion in sentencing minors who
are adjudicated habitual juvenile offenders. Shermaine relies primarily on the Supreme Court
decision in Miller v. Alabama, 567 U.S. ___, 132 S. Ct. 2455 (2012), to argue that removal of
discretion violates the eighth amendment, which requires "a sentencer [to] follow a certain
process—considering an offender's youth and attendant characteristics—before imposing a
particular penalty." Id. at ___, 132 S. Ct. at 2471. Shermaine asserts that it also violates the
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proportionate penalties clause of the Illinois Constitution, which mandates a court consider
rehabilitation in imposing a sentence.
¶ 14 As a preliminary matter, we note that the Illinois Supreme Court has held that the eighth
amendment of the United States Constitution and the proportionate penalties clause of the
Illinois Constitution do not apply to juvenile proceedings initiated by a petition for
adjudication of wardship. In re Rodney H., 223 Ill. 2d 510, 520-21 (2006). The court
explained that both the eighth amendment and the proportionate penalties clause apply only
to the criminal process, "that is, to direct actions by the government to inflict punishment."
Id. at 518. The court concluded that an adjudication of wardship was not criminal in nature
and therefore, was not a direct action by the State to inflict punishment within the meaning of
the eighth amendment and the proportionate penalties clause. Id. at 520-21. But, as another
panel of this court held in In re A.P., 2014 IL App (1st) 140327, ¶ 13, even if the eighth
amendment and proportionate penalties clause applied to the Act, the habitual offender
provision is constitutional based on current precedent.
¶ 15 Whether a statute is constitutional is a question of law, subject to de novo review. People
v. Kitch, 239 Ill. 2d 452, 466 (2011). Statutes carry a strong presumption of constitutionality.
Id. To overcome this presumption, the party challenging the statute must clearly establish
that it violates the constitution. Id. If reasonably possible, this court will construe a statute so
as to affirm its constitutionality. People v. Johnson, 225 Ill. 2d 573, 584 (2007). Accordingly,
we will resolve any doubt as to the construction of a statute in favor of its validity. People v.
Boeckmann, 238 Ill. 2d 1, 6-7 (2010). A challenge to the facial validity of a statute is the
most difficult challenge to mount successfully because an enactment is invalid on its face
only if no set of circumstances exists under which it would be valid. Kitch, 239 Ill. 2d at 466.
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A statute's invalidity in one set of circumstances does not suffice to prove its facial invalidity.
In re M.T., 221 Ill. 2d 517, 536-37 (2006). “Thus, so long as there exists a situation in which
a statute could be validly applied, a facial challenge must fail. [Citation.]" (Internal quotation
marks omitted.) Kitch, 239 Ill. 2d at 466.
¶ 16 Eighth Amendment
¶ 17 The eighth amendment, as applied to the states through the fourteenth amendment,
prohibits the imposition of cruel and unusual punishment for criminal offenses that are
disproportionate in relation to the offense committed or the status of the offender. U.S.
Const., amend. VIII. The eighth amendment's ban on excessive sanctions flows from the
basic principle that criminal punishment should be graduated and proportioned to both the
offender and the offense. Miller, 567 U.S. at ___, 132. S. Ct. at 2463. To determine whether a
punishment is so disproportionate as to be “cruel and unusual,” a court must look beyond
history to “the evolving standards of decency that mark the progress of a maturing society.”
(Internal quotation marks omitted.) Id.
¶ 18 Shermaine contends the habitual juvenile offender provision in section 5-815 of the Act
violates the eighth amendment of the United States Constitution, because it imposes a
mandatory sentence without considering whether it is disproportionate in relation to the
offense committed. Section 5-815 provides:
"(a) Definition. Any minor having been twice adjudicated a delinquent minor for
offenses which, had he been prosecuted as an adult, would have been felonies under
the laws of this State, and who is thereafter adjudicated a delinquent minor for a third
time shall be adjudged an Habitual Juvenile Offender where:
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1. the third adjudication is for an offense occurring after adjudication on the
second; and
2. the second adjudication was for an offense occurring after adjudication on the
first; and
3. the third offense occurred after January 1, 1980; and
4. the third offense was based upon the commission of or attempted commission
of the following offenses: first degree murder, second degree murder or involuntary
manslaughter; criminal sexual assault or aggravated criminal sexual assault;
aggravated or heinous battery involving permanent disability or disfigurement or
great bodily harm to the victim; burglary of a home or other residence intended for
use as a temporary or permanent dwelling place for human beings; home invasion;
robbery or armed robbery; or aggravated arson.
Nothing in this section shall preclude the State's Attorney from seeking to
prosecute a minor as an adult as an alternative to prosecution as an habitual juvenile
offender.
***
(f) Disposition. If the court finds that the prerequisites establishes in subsection
(a) of this Section have been proven, it shall adjudicate the minor an Habitual
Juvenile Offender and commit him to the Department of Juvenile Justice until his
21st birthday, without possibility of parole, furlough, or non-emergency authorized
absence. However, the minor shall be entitled to earn one day of good conduct credit
for each day served as reductions against the period of his confinement. Such good
conduct credits shall be earned or revoked according to the procedures applicable to
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the allowance and revocation of good conduct credit for adult prisoners serving
determinate sentences for felonies." 705 ILCS 405/5-815 (West 2012).
¶ 19 The Illinois Supreme Court has held that the mandatory sentencing provision of the Act
does not violate the eighth amendment. People ex rel. Carey v. Chrastka, 83 Ill. 2d 67
(1980). Relying on the United States Supreme Court decision in Rummel v. Estelle, 445 U.S.
263 (1980), which upheld a Texas recidivist statute that prescribed life imprisonment after
conviction of three felonies, the Illinois Supreme Court in Chrastka held that sentencing a
habitual juvenile offender to a mandatory minimum sentence of commitment until the age of
21 years did not violate the eighth amendment. Chrastka, 83 Ill. 2d at 81-82. Specifically, the
court concluded that "[s]tate legislatures have traditionally been allowed wide latitude in
setting penalties for State crimes [citation], and we do not believe that the disposition
authorized here rises to the level of cruel and unusual punishment by any stretch of the
imagination." Chrastka, 83 Ill. 2d at 81-82.
¶ 20 Shermaine acknowledges the holding in Chrastka, as well as its recent application in In
re A.P., 2014 IL App (1st) 140327 (holding that habitual juvenile offender provision of the
Juvenile Court Act did not violate the eighth amendment or the proportionate penalties clause
of the Illinois Constitution), but contends that Chrastka and Rummel, on which it relies are
"out of step" with current case law and should be reconsidered in light of recent United States
Supreme Court decisions recognizing expansive eighth amendment protections for minors
found guilty of crimes.
¶ 21 In a series of decisions over the past decade, the United States Supreme Court has
determined that the eighth amendment's proscription against cruel and unusual punishment
prevents imposition of the death penalty for offenses committed by juveniles (Roper v.
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Simmons, 543 U.S. 551, 574-75 (2005)), a sentence of life imprisonment without the
possibility of parole for juveniles convicted of nonhomicide offenses (Graham v. Florida,
560 U.S. 48, 74-75 (2010)), and a mandatory sentence of life without the possibility of parole
for homicide committed by a juvenile (Miller, 567 U.S. at ___, 132 S. Ct. at 2469). In each of
these cases, the Supreme Court relied on the results of scientific and sociological studies
documenting the fundamental differences between juvenile and adult offenders convicted of
the same crimes. As summarized by the Court in Miller:
“First, children have a ‘ “lack of maturity and an underdeveloped sense of
responsibility,” ’ leading to recklessness, impulsivity, and heedless risk-taking.
Roper, 543 U.S. at 569, 125 S. Ct. 1183. Second, children ‘are more vulnerable ... to
negative influences and outside pressures,’ including from their family and peers;
they have limited ‘contro[l] over their own environment’ and lack the ability to
extricate themselves from horrific, crime-producing settings. Ibid. And third, a child's
character is not as ‘well formed’ as an adult's; his traits are ‘less fixed’ and his actions
less likely to be ‘evidence of irretrievabl[e] deprav[ity].’ Id. at 570, 125 S. Ct. 1183."
Miller, 567 U.S. at ___, 132 S. Ct. at 2464.
¶ 22 Miller, on which Shermaine primarily relies, involved two 14-year-olds convicted of
murder and sentenced to life imprisonment without the possibility of parole. Miller, 567 U.S.
at ___, 132 S. Ct. at 2460. In reaching the conclusion that mandatory life sentences without
the possibility of parole for juvenile offenders violated the eighth amendment, the Supreme
Court relied on a confluence of “categorical bans on sentencing practices based on
mismatches between the culpability of a class of offenders and the severity of a penalty” (id.
at ___, 132 S. Ct. at 2463) and prohibitions on “mandatory imposition of capital punishment,
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requiring that sentencing authorities consider the characteristics of a defendant and the details
of his offense before sentencing him to death.” Id. at ___, 132 S.Ct. at 2463-64.
¶ 23 The Court emphasized that a mandatory life sentence without parole for a juvenile did not
allow for consideration of the offender's age and "its hallmark features—among them,
immaturity, impetuosity, and failure to appreciate risks and consequences. Id. at ___, 132. S.
Ct. at 2468. The Court concluded that "in imposing a State's harshest penalties, a sentencer
misses too much if he treats every child as an adult." Id. at ___, 132 S. Ct. at 2468.
¶ 24 Shermaine contends that like the mandatory life sentence in Miller, the habitual juvenile
offender provision of the Act violates the eighth amendment because it only allows one
sentence—incarceration until the juvenile's twenty first birthday—and precludes the court
from considering other factors, including the offender's youth, his or her potential for
rehabilitation, the circumstances of the offense, and his or her family environment.
Shermaine asserts that the Court's holding in Miller supports a finding that a mandatory
sentencing provision like the one applied to habitual juvenile offenders under the Act violates
the eighth amendment.
¶ 25 Miller, however, is factually distinguishable and does not support deviating from
precedent established in Chrastka, which, as an appellate court, we are required to follow. In
Miller, and the cases it relies on, Roper, and Graham, the defendants were under the age of
18, but were tried as adults in the criminal system. Conversely, Shermaine, who was also
under the age of 18, was sentenced as a juvenile under the Act. Further, the Miller Court did
not hold that the eighth amendment prohibited any mandatory penalties but, rather, only
mandatory life sentences. While Shermaine was given a mandatory sentence of commitment
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until the age of 21, that sentence is far less egregious than the sentence of life in prison
without the possibility of parole that the trial court gave to the Miller defendant.
¶ 26 Like the respondents in Chrastka, Shermaine was sentenced as a habitual juvenile
offender to a mandatory minimum sentence of commitment until he is 21 years old as a result
of recidivism. As an appellate court, we are required to follow supreme court precedent on an
issue "unless and until that conclusion is revisited by our supreme court or overruled by the
United States Supreme Court." People v. Fountain, 2012 IL App (3d) 090558, ¶ 23.
Although the United States Supreme Court has in recent years addressed the eighth
amendment rights of juveniles tried as adults, it has not similarly addressed the rights of
juveniles like Shermaine who are tried in the juvenile court system. Further, the Illinois
Supreme Court has not revisited its holding in Chrastka. Because it is still applicable, we
must follow the holding in Chrastka and find that Shermaine's commitment to the DJJ until
the age of 21 does not violate the eighth amendment.
¶ 27 Proportionate Penalties Clause
¶ 28 Shermaine contends that even if the habitual juvenile offender provision of the Act does
not violate the eighth amendment, the court should still find a violation of the proportionate
penalties clause of the Illinois Constitution. The proportionate penalties clause, which is
similar to but not identical with the eighth amendment, provides that "[a]ll penalties shall be
determined both according to the seriousness of the offense and with the objective of
restoring the offender to useful citizenship." Ill. Const., 1970 art. I, § 11. The second
requirement of the clause, that penalties must have the objective of restoring the offender to
useful citizenship, was added to the 1970 Constitution. People v. Clemons, 2012 IL 107821,
¶ 39. Citing Clemons, 2012 IL 107821, Shermaine contends that by emphasizing
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rehabilitation, Illinois's proportionate penalties clause provides greater protection than the
eighth amendment. In Clemons, our supreme court stated, "The convention record indicates
that the framers intended, with this additional language, to provide a limitation on penalties
beyond those afforded by the eighth amendment." Id. ¶ 39.
¶ 29 Shermaine relies on People v. Miller, 202 Ill. 2d 328 (2002), to contend that Illinois
emphasizes rehabilitation and provides greater protection to juvenile offenders than the
federal constitution. In Miller, the defendant, a 15-year-old, was convicted of two counts of
first degree murder on an accountability theory when he served as a lookout in a shooting
that resulted in two murders. Id. at 330-31. The convergence of three statutes mandated a
natural life sentence, but the trial court refused to sentence the 15-year-old offender to life in
prison and instead sentenced him to 50 years in prison. Id. at 343. Our supreme court
affirmed, holding held that the multiple-murder sentencing statute, when converged with the
automatic transfer statute and the accountability statute, was unconstitutional under the
eighth amendment and the proportionate penalties clause of the Illinois Constitution when
applied to a 15-year-old offender convicted of multiple murders under a theory of
accountability, because the sentence "eliminate[d] the court's ability" to consider the
defendant's "age or degree of participation [in the crime]." Id. at 342. The court stated that
"[o]ur decision is consistent with the long-standing distinction made in this state between
adult and juvenile offenders," noting that "Illinois led the nation with our policy towards the
treatment of juveniles in first forming the juvenile court, and, traditionally, as a society we
have recognized that young defendants have greater rehabilitative potential." Id. at 341-42.
¶ 30 Miller is distinguishable, however, and thus Shermaine's reliance on it to support his
claim of a violation of the proportionate penalties clause is misplaced. First, Miller does not
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address the habitual juvenile offender provision of the Act. Unlike the defendant in Miller,
Shermaine was not tried as an adult and was not subject to a natural life sentence without the
possibility of parole.
¶ 31 More importantly, however, is that despite the statement in Clemons that the
proportionate penalties clause "provide[s] a limitation on penalties beyond those afforded by
the eighth amendment," our supreme court has held, in numerous cases, both before and after
Clemons, that the Illinois proportionate penalties clause is co-extensive with the cruel and
unusual punishment clause. People v. Patterson, 2014 IL 115102, ¶ 106; In re Rodney H.,
223 Ill. 2d at 518. Thus, because in Chrastka, our supreme court held that sentencing a
habitual juvenile offender to a mandatory minimum sentence of commitment until the age of
21 years did not violate the eighth amendment and the proportionate penalties clause
provides co-extensive protections, we also reject Shermaine's challenge to the habitual
juvenile offender provision under our state constitution.
¶ 32 As an appellate court, we are required to follow supreme court precedent on an issue
"unless and until that conclusion is revisited by our supreme court or overruled by the United
States Supreme Court." People v. Fountain, 2012 IL App (3d) 090558, ¶ 23. Unless and until
our supreme court decides to revisit its holding in Chrastka, we must follow its conclusion
and affirm the judgment of the circuit court. We note, however, that the mandatory
sentencing provision of the Act, which removes all discretion of the trial court in sentencing
certain repeat juvenile offenders, is ripe for reconsideration. Illinois has been a national
leader in the field of juvenile justice since the Illinois legislature enacted “An Act to regulate
the treatment and control of dependent, neglected and delinquent children” (1899 Ill. Laws
131)—or the Illinois Juvenile Court Act—on July 1, 1899. The first juvenile court in the
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country was located in Chicago across the street from Hull House, an effective and
prominent social service agency founded by social reformer Jane Addams. It was Addams
who rallied the movement for a separate juvenile justice system, which would remove
children from being tried and imprisoned by the adult criminal system. And it was Addams
who cautioned, “social advance depends as much on the process through which it is secured
as upon the result itself.” Jane Addams, Peace and Bread in Time of War, 133 (1922).
¶ 33 During the intervening decades, however, the pendulum has swung back and forth on the
legal system's handling of juvenile offenders as adults. Recent research on the effect that the
unique qualities and characteristics of youth may have on juveniles' judgment and actions
warrants reconsideration of some provisions of the Act, particularly those that remove or
reduce the trial judge's discretion in considering some of those qualities and characteristics in
sentencing a juvenile. We must ask ourselves whether precluding a trial judge’s discretion
wrongly deprives juveniles of what Justice Kennedy’s majority opinion in Graham v.
Florida, 560 U.S. at 79, called “the opportunity to achieve maturity of judgment and self-
recognition of human worth and potential.”
¶ 34 As our supreme court recently noted in People v. Patterson, 2014 IL 115102, in
discussing automatic transfers of juveniles to adult court, "[w]hile modern research has
recognized the effect that the unique qualities and characteristics of youth may have on
juveniles' judgment and actions [citation], the automatic transfer provision does not. Indeed,
the mandatory nature of that statute denies this reality." Patterson, 2014 IL 115102, ¶ 111.
The court "strongly urge[d] the General Assembly to review the automatic transfer provision
based on the current scientific and sociological evidence indicating a need for the exercise of
judicial discretion in determining the appropriate setting for the proceeding in these juvenile
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cases." Id. We suggest that similar reconsideration is necessary in the context of the Act’s
habitual offender provision to ensure preservation of the fundamental purpose of juvenile
proceedings—the child’s rehabilitation, treatment, and welfare.
¶ 35 Affirmed.
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