In re Dionte J.

ILLINOIS OFFICIAL REPORTS
Appellate Court
In re Dionte J., 2013 IL App (1st) 110700Appellate Court In re DIONTE J., a Minor (The People of the State of Illinois, Petitioner-
Caption Appellee, v. Dionte J., Respondent-Appellant).
District & No. First District, Sixth Division
Docket No. 1-11-0700
Filed June 21, 2013
Rehearing denied July 17, 2013
Held The appellate court upheld respondent’s conviction for felony murder
(Note: This syllabus based on mob action in the beating death of another minor pursuant to an
constitutes no part of extended jurisdiction juvenile prosecution (EJJP) and his commitment to
the opinion of the court the Department of Juvenile Justice until his twenty-first birthday with a
but has been prepared 30-year adult sentence if he violates his juvenile sentence,
by the Reporter of notwithstanding his challenges to the conviction and the constitutionality
Decisions for the of the EJJP statute, since the trial court properly refused to give an
convenience of the instruction on simple battery, under the statute in effect at the time of
reader.)
respondent’s offense the State only had to show respondent was acting
with others who used force on the victim to establish the predicate felony
of mob action, the trial court did not abuse its discretion in applying the
EJJP statute, and the statute did not subject respondent to increased
punishment of an adult sentence without a jury finding in violation of
Apprendi.
Decision Under Appeal from the Circuit Court of Cook County, No. 09-JD-4630; the
Review Hon. Colleen F. Sheehan, Judge, presiding.
Judgment Affirmed.
Counsel on Michael J. Pelletier, Alan D. Goldberg, and Kathleen Weck, all of State
Appeal Appellate Defender’s Office, of Chicago, for appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
Kathryn A. Schierl, and Annette Collins, Assistant State’s Attorneys, of
counsel), for the People.
Panel JUSTICE GORDON delivered the judgment of the court, with opinion.
Presiding Justice Lampkin and Justice Hall concurred in the judgment
and opinion.
OPINION
¶1 Dionte J., age 14, was charged in juvenile court with one count of felony murder
predicated on mob action in connection with the beating death of 16-year-old Derrion Albert
on September 24, 2009. Upon motion by the State, the trial court designated the case as an
extended jurisdiction juvenile prosecution (EJJP). After a jury trial, defendant was found
guilty. At sentencing, the trial court committed defendant to the Illinois Department of
Juvenile Justice until his twenty-first birthday, and imposed a 30-year adult sentence under
the EJJP statute that defendant would not have to serve unless he violated his juvenile
sentence.
¶2 On this direct appeal, defendant makes several claims, including challenges based
specifically on the circumstances of his conviction, as well as constitutional challenges to the
EJJP statute in general.
¶3 With respect to the specific circumstances of his case, defendant claims: (1) that the trial
court committed reversible error by refusing to instruct the jury on misdemeanor battery,
where battery is a lesser-included offense of mob action and, thus, a lesser-included offense
of felony murder predicated on mob action; (2) that this court must vacate defendant’s
conviction for felony murder, where the same acts that formed the basis for murder also
formed the basis for the predicate felony of mob action; and (3) that the trial court erred in
designating defendant’s case as an EJJP case, where defendant was only 14 years old with
no history of delinquency, his acts involved no premeditation or use of a weapon, and he was
amenable to treatment as a juvenile offender.
¶4 In making his first claim that the jury should have received an instruction on
misdemeanor battery, defendant argues that the supreme court’s decision in People v. Davis,
213 Ill. 2d 459 (2004), was wrongly decided. As defendant well knows, the appellate court
is in no position to entertain an argument that the supreme court should be reversed. In
Davis, the supreme court held that, when determining whether an offense is a lesser-included
-2-
offense, we must compare it to the offense of felony murder and not to the underlying felony.
Davis, 213 Ill. 2d at 475-76. To be lesser, the offense must have an equal or lesser intent.
Davis, 213 Ill. 2d at 477. Since felony murder does not require a particular intent, an offense
that does require a particular intent, such as battery, cannot be a lesser offense. Davis, 213
Ill. 2d at 477. Although defendant does not like this precedent, it is the law in our state, and
he knows that we must follow it.
¶5 In his second claim that the same act formed the basis of both murder and the underlying
felony, defendant stresses his one punch of the victim, Derrion Albert. However, this
argument ignores his other acts, such as his picking up a wooden board and swinging it at
another person besides the murder victim, and his chasing of other victims.
¶6 As for his third claim that the trial court erred in designating his case as EJJP, we cannot
find that the trial court abused its discretion in light of the seriousness of the offense.
¶7 Defendant also claims that the EJJP statute must be struck down as unconstitutional
because it violates a juvenile defendant’s due process rights, and because it is
unconstitutionally vague. Specifically, defendant argues: (1) that the EJJP statute violates a
juvenile defendant’s right to due process because it subjects him to the increased punishment
of a conditional adult sentence without a jury finding, in violation of Apprendi v. New Jersey,
530 U.S. 466 (2000); and (2) that it is unconstitutionally vague because it does not provide
fair warning of the conduct that will invoke the imposition of the adult sentence. Both of
these constitutional arguments were rejected by this court in a prior opinion, In re Omar M.,
2012 IL App (1st) 100866, and the supreme court recently cited with approval our Apprendi
reasoning (In re M.I., 2013 IL 113776, ¶¶ 43-46).
¶8 For these reasons, we must affirm.
¶9 BACKGROUND
¶ 10 I. Petition for Adjudication of Wardship
¶ 11 The State’s petition for adjudication of wardship, filed on November 6, 2009, originally
charged defendant with three counts of first-degree murder and one count of mob action.
However, on the eve of trial, the State made a motion to nol-pros the one count of mob
action, as well as two of the first-degree murder counts. This left only one count of first-
degree murder remaining.
¶ 12 The one remaining count charged defendant with felony murder predicated on mob
action, and stated in full:
“On or about September 24, 2009, in violation of Section 9-1(a)(3) of Act 5 of Chapter
720 of the Illinois Compiled Statutes, as amended, Dionte [J.] committed the offense of
First Degree Murder, in that the above-named minor, without lawful justification, while
committing a forcible felony, Mob Action, in violation of Section 720 ILCS 5/25-1(a)(1)
of Act 5 of Chapter 720, struck Derrion Albert about the body and stomped on Derrion
Albert’s head and killed Derrion Albert with his fists, a piece of wood and his feet,
during the commission of a forcible felony, to wit, mob action, Derrion Albert, and
thereby causing the death of Derrion Albert.”
-3-
¶ 13 The petition charges only one predicate felony for the above felony murder count,
namely, mob action, and it charges only one of the three subsections of the mob action
statute, section 25-1(a)(1) of the Criminal Code of 1961 (720 ILCS 5/25-1(a)(1) (West
2008)). That subsection has since been amended but, in 2009 when this offense was
committed, it stated that: “(a) Mob action consists of any of the following: (1) [t]he use of
force or violence disturbing the public peace by 2 or more persons acting together and
without authority of law.” 720 ILCS 5/25-1(a)(1) (West 2008).
¶ 14 The felony murder statute states: “A person who kills an individual without lawful
justification commits first degree murder if, in performing the acts which cause the death:
*** (3) he is attempting or committing a forcible felony other than second degree murder.”
720 ILCS 5/9-1(a)(3) (West 2008).
¶ 15 II. Pretrial Proceedings
¶ 16 On February 1, 2010, the State filed a motion to permit prosecution under the adult
criminal laws of Illinois. The motion was filed pursuant to section 5-805 of the Juvenile
Court Act of 1987, which permits the trial court to make a discretionary transfer from
juvenile court to adult court, after it considers such factors as the age and history of the
minor, the circumstances of the offense, the advantage of treatment within the juvenile
justice system, and the security of the public. 705 ILCS 405/5-805(3) (West 2008)
(“Discretionary transfer”).
¶ 17 At the beginning of the pretrial hearing held on March 19, 2010, the State indicated that
it also had a second motion, which it made in the alternative. The State moved to designate
this case as an EJJP case, if the trial court denied its motion for a discretionary transfer.1
Before ruling on the State’s motions, the trial court first held a probable cause hearing and
granted the State leave to proceed by proffer.
¶ 18 The prosecutor stated that, if called to testify under oath, Deon Blandon would testify
that, on September 24, 2009, he was a student at Fenger Academy and that there was a fight
at school that day between a boy known as “B.J.,” who lived in the Altgeld Gardens housing
development and who is known as a “Garden Boy,” and Eugene Bailey, who lived in an area
adjacent to Fenger Academy and who is known as a “Ville Boy.” Those youths who live in
Altgeld Gardens are known as “Garden Boys,” and those who live in the area adjacent to
Fenger Academy are known as “Ville Boys.” Blandon later learned that there was going to
be a fight after school near the railroad tracks on 111th Street. After school, he went to that
area and observed Carl, also a “Ville Boy” and B.J. fighting and a large fight ensued.
Blandon observed Eric Carson, another “Ville Boy,” strike Derrion Albert, another Fenger
Academy student, in the back of the head with a wooden board. As Albert was trying to
recover from the blow, defendant struck Albert in the face with his fist and Albert fell to the
ground. A crowd of “Garden Boys” then surrounded Albert and beat him.
1
As the State’s brief to this court observes, the State’s motion in the alternative to designate
this case as an EJJP case is not in the appellate record.
-4-
¶ 19 Dominic J., if called to testify under oath, would testify that he was a Fenger Academy
student and defendant’s cousin, and that a fight occurred at school on September 24, 2009,
between B.J. and Eugene Bailey. After school, he and defendant walked with three other
boys toward the 111th Street railroad tracks. The three other boys were Eric, Carl and
Dantrell, and they “associated” with the “Ville Boys.” After they reached the tracks, B.J.
swung at Carl and the two began fistfighting. Dominic J. observed Eric hit Albert in the head
with a wooden board, and Albert fell down. As Albert was trying to rise, defendant hit Albert
in the face with his fist. Then others began striking and kicking Albert.
¶ 20 Dominic J. would further testify that he watched a videotape of the events which
accurately portrayed the events that he had observed. The State moved, without objection
from the defense, for leave to play the two-minute videotape before the court, which was
granted.
¶ 21 Dr. Doherty2, if called to testify under oath, would testify that he is a medical physician
who, on September 24, 2009, treated Albert, who died that same day from the injuries
sustained. Dr. Hilary McElligott, if called to testify, would testify that she is the assistant
medical examiner who examined Albert’s head and determined that he died of cerebral
injuries caused by blunt head trauma. Detective William Sullivan, if called to testify, would
testify that he arrested defendant. The State then rested.
¶ 22 The defense then made the following proffer. Vonkeshia J., if called to testify, would
testify that she is defendant’s mother and that his customary route home from school is to
walk east on 111th Street and then past the railroad tracks. The defense then rested and, after
listening to argument from both sides, the trial court made a finding of probable cause.
¶ 23 The trial court then considered the State’s motion of discretionary transfer. In support of
its motion, the State relied on the proffer that it had already made. In response, defense
counsel moved to admit the juvenile court’s social investigation pretrial report, which the
trial court admitted into evidence without objection. After both sides rested, the court heard
argument on the motion. The State argued that, with respect to a transfer motion, the two
most important factors were any prior criminal record of the minor and the seriousness of the
present offense; and that, although this minor had no prior record, the court should grant the
State’s motion because of the seriousness of the offense. The defense argued that defendant
had thrown one punch and that was the extent of his involvement. The matter was continued
and on April 9, 2010, the trial court denied the State’s motion to transfer and granted the
State’s motion to designate the case as an EJJP case.
¶ 24 III. Trial
¶ 25 The State’s evidence at trial consisted primarily of two videotapes of the incident and the
testimony of nine witnesses, including: the victim’s cousin; a teacher at Fenger Academy;
four eyewitnesses to the mob action; two investigating police officers; and the assistant
medical examiner who performed the autopsy.
2
Dr. Doherty’s first name does not appear in the appellate record.
-5-
¶ 26 The State’s first witness, Latanya Albert, was the victim’s cousin who identified a
photograph of the victim when he was alive. The parties then stipulated that, if she was
shown a photograph of the victim taken after he died, she would identify it as a photograph
as he appeared in death.
¶ 27 The State’s next witness, T-awanda Piper,3 testified that she had been employed for 11
years as a “youth worker” at the Agape Community Center at 342 West 111th Street,
Chicago. The center is located near the location of the fight which occurred on September
24, 2009, a half mile west of Fenger High School. At 2:45 p.m. on September 24, a
receptionist at the center informed Piper that there was a fight outside the center, and Piper
instructed the receptionist to call 911 and inform the dispatcher that there was “mob action
on 111th Street.” When Piper observed the center’s security camera, she observed “a lot of
kids” on 111th Street. Then, looking through a window near the receptionist’s desk, she
observed that “there were two groups of kids, looking as though they were going to
physically agress [sic] one another.” The minors were 10 to 15 feet from the window. Piper
then left the window for about a minute and a half, and went upstairs to find other staff
members. When she returned to the window, she observed “a young man hit a boy over the
head with a board,” and then another young man hit the same boy in the face with his fist.
After the boy fell to the ground, other young men surrounded him and started to kick him.
¶ 28 Piper testified that she exited the center in order to help the injured boy, whom she later
learned was Derrion Albert. After she exited, she observed several youths attempting to lift
Albert up. A vehicle approached, and she asked a man in the vehicle to help her with the
victim. She then carried Albert into the center, with the assistance of the unidentified man,
and laid him on the floor, called for emergency medical service and checked his neck and a
wrist for a pulse. Although she did not feel a pulse in the carotid artery in his neck, she felt
a “pretty high” pulse in his wrist. She then learned the victim’s name from his high school
identification tag and called out his name. Albert gasped for breath, as though he was trying
to respond. Then, the ambulance arrived and transported him to a hospital.
¶ 29 Piper testified that she later viewed two video recordings of the fight. First, she identified
State’s exhibit No. 4 as a DVD which she had observed. Next, she identified State’s exhibit
No. 5 as the videotape from the center’s surveillance camera. Piper testified that both video
recordings fairly and accurately depicted the fight that she had witnessed. Exhibit No. 4 was
received into evidence without objection; and the State requested and received the court’s
permission, without objection, to publish both to the jury. As exhibit No. 4 played for the
jury, Piper identified herself in the video as she pulled Albert into the center.
¶ 30 The State’s next witness, Sara Muhs, testified that she is 27 years old and a math teacher
at Fenger High School. On September 24, 2009, defendant was a student in her math class,
and he arrived in her classroom that day with Dantrell Myles, another student. The two had
just come from gym class, and defendant was wearing black and red basketball shorts along
with his Fenger black polo shirt, which is part of the Fenger uniform.
¶ 31 On cross-examination, Muhs testified that, although Altgeld Gardens is located south of
3
Ms. Piper spelled her first name for the court reporter with a hyphen.
-6-
Fenger High School, students from Altgeld Gardens attend Fenger High School. At an earlier
time, those children attended Carver High School. However, Carver was converted into a
military academy, and the students from Altgeld Gardens who did not attend the military
academy had the option of attending Fenger High School.
¶ 32 Muhs testified that, during the weekend of September 26 and 27, 2009, she watched a
videotape of the incident as it played on a television news broadcast, and she observed a
person dressed in a black Fenger polo shirt and red and black gym shorts. However, she did
not contact the police to tell them that person was defendant. Later, on October 20, she
watched the videotape more closely during one of her planning periods at school and,
coincidentally, later that same day, she was asked to leave her classroom to speak with two
detectives.
¶ 33 During redirect examination, she testified that she was able to identify defendant in the
videotape, based on her recognition of: (1) his attire; (2) other students in the videotape who
are his friends; and (3) one “grainy” image of a face that she “thought” was defendant. She
testified that, in the videotape, the person whom she believed to be defendant was holding
a “2x4” or “a railroad tie” which was handed to Eric Carson; and then, at a later point,
defendant struck a person (whom she later learned was Derrion Albert) in the head with his
fist. Muhs recognized Eric Carson because he was a student in one of her math classes. In
the videotape, Carson was wearing a red hoodie sweatshirt that she had observed him
wearing in school.
¶ 34 On re-cross-examination, Muhs testified that she had never observed defendant with
Carson prior to observing them together on the videotape. Carson was 17 years old. Muhs
clarified that Carson took the wooden board from defendant before striking Albert. On re-
redirect examination, Muhs testified that the videotape depicted Carson striking Albert with
the wooden board and defendant striking Albert in the face with his fist. On re-recross-
examination, Muhs testified that, although she did not know Albert from school, she was
able to identify him in the videotape from depictions she had observed in the media.
¶ 35 Jamal Harding testified that he is 19 years old, that he lives in a neighborhood on the
south side of Chicago known as “the Ville,” and that he graduated from Fenger High School
in June 2009, a couple of months before the offense occurred. On September 24, 2009, he
was not working or in school. At 3 p.m., he exited a corner grocery store at 111th Street and
Normal Avenue, and walked down 111th Street toward the railroad tracks. A number of
Fenger students were also on 111th Street heading home from school.
¶ 36 Harding then observed a blue vehicle drive by, heading toward the railroad tracks, with
“B.J.” as a passenger. B.J. was a student whom Harding knew from Fenger High School and
who lived in Altgeld Gardens. Harding observed that B.J. was “bobbing his head” up and
down but Harding could not hear anything that might have been said because Harding was
wearing headphones. As Harding kept walking, he crossed the railroad tracks and observed
that B.J. was now out of the vehicle and was on the same side of the street as the Agape
Center. There was “a rumble” and “everybody” was fighting, including B.J. Harding took off
his headphones and started fistfighting with B.J. After the fight, Harding noticed Eric Carson,
who was a friend from the Ville, and who was wearing a red sweatshirt.
-7-
¶ 37 Harding had watched a videotape of the incident and was able to identify on the
videotape himself, defendant, Eric Carson, Albert, Dantrell Myles, Dion Blandon, and
Silvonus Shannon, who was from the Gardens. Harding knew defendant as “Tito” and had
observed him around the Ville. Harding knew Albert from school, and they were friends.
Dantrell Myles, who was from the Ville and a Fenger student, was Harding’s best friend.
Dion Blandon was also a friend of Harding’s and from the Ville. The State then played in
court “a slowed-down version” of the videotape and asked Harding questions about what was
depicted on the videotape as it played.
¶ 38 Harding testified that the tape depicted defendant with a stick in his hand and Eric Carson
then taking the stick from defendant and hitting Albert. The tape also showed defendant with
a fist and Harding pushing defendant. Harding explained that he pushed defendant to let him
know that Harding did not want defendant to hit Albert anymore. At some point, Albert rose
from the place where defendant had punched him and went to the alley, where he fell again
and was surrounded by other minors. Harding testified that the tape showed Silvonus kicking
Albert and jumping on Albert’s head with his two feet; and B.J.’s brother Eugene swinging
a stick at Albert. The tape depicted Harding, who explained at trial what he did as he stood
near Albert. Harding asked Albert if he was okay, and Albert looked at Harding as though
he was trying to respond but he could not talk. Harding testified that the tape then depicted
defendant running after Harding, Dantrell Myles and some other youths.
¶ 39 On cross-examination, Harding agreed that, at the end of the videotape, he was depicted
picking up a stick, and he explained that he did that to chase other youths away from Albert.
Harding testified that, after defendant punched Albert, he walked over and told defendant not
to hit Albert again. At some point after being punched by defendant, Albert was able to rise.
However, Harding denied that Albert stated he was okay.
¶ 40 On cross-examination, Harding admitted that he signed a written statement at the Area
2 police station on September 26, 2009, in the presence of Detective Sullivan and a woman.
The defense counsel then read the portion of the statement in which Harding stated that: after
defendant punched Albert, Harding asked Albert if he was okay and Albert replied that he
was; and Albert was on his feet and appeared okay. Harding acknowledged having made that
statement.
¶ 41 Harding testified that he had known Eric Carson for five or six years and that he had
observed Carson that afternoon as Harding entered the corner store at 111th Street and
Normal Avenue. Carson was on his way home from school, and defendant was not with him.
When Harding exited the store, he observed a number of people walking home and heading
in different directions. Harding walked toward the railroad tracks because his home was in
that direction. The first time that Harding observed defendant was when defendant punched
Albert. Defendant was not a member of either the Ville group or the Altgeld Gardens group,
and Harding does not recall having observed defendant with B.J.’s brother Eugene or with
Silvonus Shannon or with any of the other people who were kicking Albert.
¶ 42 The State’s next witness was Dantrell Myles, who testified that he was 16 years old and
that, in September 2009, he attended Fenger High School and lived in the neighborhood near
Fenger known as the Ville. After school on September 24, 2009, he went with Carl Lowery
-8-
to the corner store at 111th Street and Normal Avenue. When they left the store, they walked
toward the railroad tracks. As a vehicle drove past them with B.J. and his brother, B.J. said
“something.” Then the vehicle stopped, and the occupants exited and started fighting with
Lowery and Myles near the railroad tracks. Then the fight “got large.” Afterwards, Myles
learned that Albert died as a result of the fight. Myles had known Albert for a couple of
months from the neighborhood. Myles later watched a videotape of the incident, and the
State played the “slowed-down version” of the videotape in court, while asking Myles
questions about what was depicted.
¶ 43 Myles identified Eric Carson on the tape. Myles had known Eric a couple of years, and
they were friends. Myles testified that the tape depicted defendant bending down to pick up
a board and swinging it. Defendant was in Myles’ gym class, as well as his math class with
Ms. Muhs. The tape then showed Carson as he hit Albert with the board and defendant as he
was about to punch Albert with his fist. Then, it showed a group of boys kicking Albert.
Eugene, B.J.’s brother, hit Albert over the head with a stick, and Silvonus stomped on
Albert’s head with his feet.
¶ 44 On cross-examination, Myles testified that the videotape showed Albert, the victim,
throwing punches before he was hit. Myles explained that he kept walking toward the
railroad tracks “[b]ecause they was walking toward us, like, they wanted to fight.” “[T]hey”
were B.J. and his brother. B.J. wanted to fight Carl Lowery, who was Myles’ friend, so
Myles started fighting too. During the fight, Myles did not notice Albert; Myles was too busy
trying to avoid being hit by “[p]eople from the Gardens.” Myles had no idea what caused this
fight.
¶ 45 The State’s next witness, Dominic J., testified that he was 17 years old and presently in
the custody of the Cook County department of corrections due to a pending case. In
September 2009, he was 16 years old and a sophomore at Fenger High School. Defendant,
who was Dominic J.’s younger cousin, was a freshman at Fenger and lived in the area near
Fenger known as the Ville. On September 24, 2009, Dominic J. witnessed a fight in school
between B.J. who was from the Gardens and Eugene who was from the Ville. (Dominic J.
later explained that the “Eugene” with whom B.J. fought was a different person from B.J.’s
brother who was also named “Eugene.”) After school, Dominic J. left with defendant, Carl,
and Dantrell Myles, and they walked toward the railroad tracks. As they were walking,
Dominic J. observed B.J. in a vehicle with three or four other people. As B.J. was “hanging
out” of the vehicle, he stated “the s*** is not over.” Then the vehicle “disappeared,” and they
kept walking toward the railroad tracks. When they crossed the tracks, Carl and B.J. started
fighting. Although Dominic J. was present during the fight, he did not become engaged in
it.
¶ 46 Dominic J. testified that he had watched a videotape of the fight in which he observed
himself; defendant; Albert, whom Dominic J. knew from school; Eric Carson, who was from
the Ville and who was friends with Dominic J.; and Silvonus, who was from the Gardens.
The State then played the videotape while asking Dominic J. about what was depicted on it.
Dominic J. testified that the tape depicted both defendant and Eric Carson bending down to
pick up pieces of wood. Carson swung his board and hit someone; and defendant swung his
board trying to hit someone. Then Carson took the board from defendant and used it to hit
-9-
Albert. After being hit, Albert was in the process of standing up, when defendant punched
Albert with his fist. Silvonus then stomped on Albert with his feet, and B.J.’s brother Eugene
swung a board to hit Albert. Dominic J. testified that the tape depicted defendant running but
he could not say whether defendant was running after boys from the Garden.
¶ 47 On cross-examination, Dominic J. testified that he was in custody on a charge of
residential burglary for which he could receive 4 to 15 years if convicted. Dominic J. also
testified that, normally, he and defendant would leave school each day and walk to
defendant’s house by traveling down 112th Street. However, on the day of the fight, he and
defendant walked down 111th Street because they were expecting trouble due to the fight
that had occurred earlier in school. Dominic J. knew that something was going to happen
near the railroad tracks on 111th Street, after observing B.J. hanging out of the vehicle.
However, later during cross-examination, Dominic J. testified that this was the route that his
cousin took every day to walk home.
¶ 48 Dominic J. testified that the first time that Dominic J. observed either wooden sticks or
defendant hitting Albert is when he watched the videotape. While Dominic J. was present
at the fight, he did not observe anyone pick up sticks, or defendant hit Albert. While Dominic
J. was present near the railroad tracks, he observed Albert “walking with the Ville.” Dominic
J. observed Albert fighting with a person from the Gardens and observed Albert throwing a
couple of punches.
¶ 49 Dominic J. testified that, when he watched the videotape, he noticed defendant swinging
a stick in the direction of a vehicle, trying to hit B.J. Dominic J. had told defendant about the
fight in school which he had witnessed between B.J. and Eugene.
¶ 50 The State’s next witness, Detective William Sullivan, testified that he had been a member
of the Chicago police department for 16 years, which included being a detective for 10 years
and being assigned to homicide with Area 2 for 6 years. Area 2 has its headquarters on 111th
Street. On September 24, 2009, he was working with his partner, Detective Michelle Moore-
Grose, when they were assigned at 5 p.m. to investigate a fight that had occurred on 111th
Street. They went first to Roseland Hospital, where they learned that Albert had been taken
to Christ Hospital and Voshon Bullock had been transferred to a hospital in Indiana. The
detective later learned that Bullock’s nickname was B.J. At Christ Hospital, they learned that
Albert had died from his injuries. They then proceeded to Agape Community Center, where
they met with T-awanda Piper and learned that the center was equipped with a surveillance
camera. Sandy Hankel, another center employee, told him that she had observed someone
standing near the fight with a video recorder. The next day, he learned that Fox News had
obtained a videotape of the fight from the individual who had recorded it, and a copy was
provided to the police. The detective watched that tape well over 100 times, including the
slowed-down version. As a result of the investigation into Albert’s death, Eric Carson,
Silvonus Shannon, Eugene Riley, Lapolean Colbert, and defendant were all arrested and
charged with first-degree murder. The investigation revealed that Eugene Riley is the brother
of Voshon Bullock, also known as B.J.
¶ 51 The State’s next witness, Curtis Thomas, testified that he had been a member of the
Chicago police department for over 24 years and a detective since 2001. On September 25,
-10-
2009, he traveled to the area near the Agape Community Center, where he observed a large
wooden board. The board was across the street from the center and in the grass. Thomas did
not observe any blood, hair or skin tissue on the board.
¶ 52 The State’s next witness, Dr. Hilary McElligott, testified that she was the assistant
medical examiner who performed the autopsy on Albert’s body. A board-certified
pathologist, she was accepted, without objection, as an expert in forensic pathology. She
opined, within a reasonable degree of medical certainty, that Albert’s death was caused by
cerebral injuries, due to blunt trauma. At the prosecutor’s request, she had watched,
approximately a year after performing the autopsy, the videotape of the incident. While
watching the videotape, she observed the victim as he was struck with a large wooden board
and punched in the face, and as he received further injuries. Dr. McElligott testified: “I
believe that punch was a contributing factor to his death.” She explained: “I can’t pinpoint
exactly which injury was a quote, fatal blow, end quote. My determination is that all of these
injuries contributed as a whole to his death. *** I can’t pinpoint exactly which blow or strike
caused exactly which injury to the head region.”
¶ 53 On cross-examination, she testified that the fact that a witness observed Albert rise after
being punched would not change her opinion that the punch contributed to his death. She
explained, by way of analogy, that if a boat had multiple holes and sank, she could not say
which hole caused the boat to sink, but she could say that all of them contributed to the
sinking. On redirect, she testified that it is possible for a person to rise even after sustaining
a traumatic brain injury. On recross, she was asked if it was possible for a single punch to
cause the brain “stem” to swell and a person to die, and she testified yes.
¶ 54 The State rested, and the trial court denied defendant’s motion for a directed verdict.
¶ 55 IV. Conviction and Posttrial Proceedings
¶ 56 On December 8, 2010, the jury returned a verdict finding defendant guilty of felony
murder, and the trial court entered judgment on the verdict.
¶ 57 The trial court denied defendant’s posttrial motion for a new trial and committed
defendant to the Illinois Department of Juvenile Justice until age 21. The trial court also
sentenced defendant to an adult sentence of 30 years, “the execution of which shall be stayed
on the condition that the minor-respondent does not violate the provisions of the juvenile
sentence.” Defendant filed a motion to reduce sentence, which the trial court denied on
March 4, 2011. Defendant then filed a timely notice of appeal on March 4, 2011, and this
appeal followed.
¶ 58 ANALYSIS
¶ 59 Defendant claims: (1) that the trial court committed reversible error by refusing to
instruct the jury on battery, where he presented some evidence that he committed battery and
where battery is a lesser-included offense of mob action; (2) that this court must vacate
defendant’s conviction for felony murder, where the same acts that formed the basis for
murder also formed the basis for the predicate felony of mob action; and (3) that the trial
-11-
court erred in designating defendant’s case as an EJJP case, where defendant was only 14
years old and had no history of delinquency, his acts involved no premeditation or use of a
weapon, and he was amenable to treatment as a juvenile offender.
¶ 60 Defendant also claims that the EJJP statute must be struck down as unconstitutional
because it violates a juvenile defendant’s due process rights, and is unconstitutionally vague.
Specifically, defendant argues: (1) that the EJJP statute violates a juvenile defendant’s right
to due process because it subjects him to the increased punishment of a conditional adult
sentence without a jury finding, in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000);
and (2) that it is unconstitutionally vague because it does not provide fair warning of the
conduct that will invoke the imposition of an adult sentence.
¶ 61 I. Battery
¶ 62 First, defendant claims that the trial court erred by failing to instruct the jury with the
misdemeanor offense of battery, because misdemeanor battery is a lesser-included offense
of mob action.
¶ 63 However, by the time of trial, defendant was no longer charged with mob action. He was
charged only with felony murder. For defendant’s argument to succeed, we would have to
find: first, that misdemeanor battery is a lesser-included offense of mob action; second, that,
when mob action is the predicate felony for a felony murder charge, misdemeanor battery
becomes a lesser-included offense of felony murder; and third, that, when a defendant
charged with felony murder predicated on mob action shows some evidence of misdemeanor
battery, he is then entitled to a jury instruction on misdemeanor battery. We can find no case
law to support the third proposition, nor has defendant supplied any. This court has
repeatedly held that a party waives a point by failing to provide supporting legal authority.
People v. Ward, 215 Ill. 2d 317, 332 (2005) (“point raised in a brief but not supported by
citation to relevant authority *** is therefore forfeited”); In re Marriage of Bates, 212 Ill. 2d
489, 517 (2004) (“A reviewing court is entitled to have issues clearly defined with relevant
authority cited.”); Lozman v. Putnam, 379 Ill. App. 3d 807, 826 (2008); Roiser v. Cascade
Mountain, Inc., 367 Ill. App. 3d 559, 568 (2006) (by failing to offer supporting legal
authority or “any reasoned argument,” plaintiffs waived consideration of their theory for
asserting jurisdiction over defendant); Ferguson v. Bill Berger Associates, Inc., 302 Ill. App.
3d 61, 78 (1998) (“it is not necessary to decide this question since the defendant has waived
the issue” by failing to offer case citation or other support as Supreme Court Rule 341 (Ill.
S. Ct. R. 341 (eff. Feb. 1, 1994)) requires).
¶ 64 This court reviews a trial court’s decision to decline to give a jury instruction under an
abuse of discretion standard. People v. Davis, 213 Ill. 2d 459, 475 (2004) (when defendant
was charged with felony murder based on mob action, our supreme court reviewed the trial
court’s denial of defendant’s proposed involuntary manslaughter instruction only for an
abuse of discretion). “ ‘An abuse of discretion occurs when no reasonable person would take
the view adopted by the court.’ ” In re Omar M., 2012 IL App (1st) 100866, ¶ 26 (quoting
Trettenero v. Police Pension Fund, 333 Ill. App. 3d 792, 801 (2002)).
¶ 65 To prove felony murder, the State must prove that the defendant, without lawful
-12-
justification, caused a person’s death while “attempting or committing a forcible felony other
than second degree murder.” 720 ILCS 5/9-1(a)(3) (West 2008); People v. Phillips, 383 Ill.
App. 3d 521, 535 (2008). A “forcible felony” is defined, in relevant part, as: “aggravated
battery resulting in great bodily harm or permanent disability or disfigurement and any other
felony which involves the use or threat of physical force or violence against any individual.”
720 ILCS 5/2-8 (West 2008).
¶ 66 In the case at bar, defendant did not seek an instruction for aggravated battery at trial, and
he does not argue for it now on appeal, so that issue is not before us.4 If defendant’s theory
was taken to its absurd but logical conclusion, disorderly conduct could just as easily become
a required “lesser-included offense” instruction for felony murder predicated on mob action,
as misdemeanor battery. 720 ILCS 5/26-1 (West 2008) (“disorderly conduct” includes any
act done “in such unreasonable manner as to alarm or disturb another and to provoke a
breach of the peace”).
¶ 67 In Davis, the supreme court held that involuntary manslaughter was not a lesser-included
offense of felony murder predicated on mob action. Davis, 213 Ill. 2d at 477. To be a lesser-
included offense, the lesser offense must have a less culpable mental state than or an equally
culpable mental state as the charged offense. Davis, 213 Ill. 2d at 477. The supreme court
reasoned that involuntary manslaughter was not a lesser-included offense, because felony
murder “does not include a culpable mental state as to the killing while the offense of
involuntary manslaughter requires a reckless mental state.” Davis, 213 Ill. 2d at 477. In
reaching this conclusion, the supreme court considered only the mental state required for the
murder and not the mental state required for the underlying felony of mob action. Davis, 213
Ill. 2d at 477. In the case at bar, defendant asks us to do what the supreme court refused to
do, which is to consider the mental state of the predicate felony. Defendant claims that Davis
was wrongly decided, arguing that “the analysis in Davis ignored a fundamental requirement
of every felony murder indictment: the predicate felony.” Defendant’s argument, however,
that the supreme court should vacate one of its cases, is an argument he will have to make
to a different court. People v. Phillips, 383 Ill. App. 3d 521, 546 (2008) (this court was
“unpersuaded” when another defendant made the same argument that “the approach taken
by the supreme court in Davis was too narrow”).
¶ 68 For the foregoing reasons, we find that the trial court did not abuse its discretion by
denying defendant’s proposed jury instruction for misdemeanor battery.
¶ 69 II. Mob Action and Felony Murder
¶ 70 Second, defendant asks this court to vacate his conviction for felony murder, on the
ground that the same acts that formed the basis for the murder also formed the basis for the
4
Prior to oral argument, defendant moved to cite as additional authority People v. Schmidt,
392 Ill. App. 3d 689, 694-96 (2009), in which this court held that an aggravated battery that does not
result in great bodily harm cannot serve as a forcible felony for purposes of the felony murder
statute. However, as stated above, defendant did not seek an instruction for aggravated battery at
trial, so that issue is not before us.
-13-
predicate felony of mob action.
¶ 71 The supreme court has held that, where the acts constituting a forcible felony arise from
and are inherent in the act of murder itself, those acts cannot also serve as the predicate
felony for a charge of felony murder. People v. English, 2013 IL 112890, ¶ 29 (quoting
People v. Morgan, 197 Ill. 2d 404, 447 (2001)). This rule is known as the same-act doctrine.
People v. Davison, 236 Ill. 2d 232, 243 (2010) (our supreme court reaffirmed its adherence
to “the same-act *** doctrine for felony murder”). Since this issue presents solely a question
of law, we review it de novo. Davison, 236 Ill. 2d at 239 (the question of whether “the
conduct constituting mob action arose from and was inherent in the act of murder itself” was
“solely” a question of law to be reviewed de novo). De novo consideration means that we
review the issue independently from the trial court’s judgment. A Plus Janitorial Co. v.
Group Fox, Inc., 2013 IL App (1st) 120245, ¶ 14.
¶ 72 As noted above, the petition charges only one predicate felony for the felony murder
count, mob action, and it charges only one of the three subsections of the mob action statute,
subsection 25-1(a)(1). In 2009 when this offense was committed, it stated that: “(a) Mob
action consists of any of the following: (1) [t]he use of force or violence disturbing the public
peace by 2 or more persons acting together and without authority of law ***.” 720 ILCS
5/25-1(a)(1) (West 2008). Thus, under a plain reading of the 2009 statute, the State had to
prove: (1) that defendant was one of two or more people acting together and without
authority of law; (2) that these two or more people used force or violence; and (3) that this
use of force or violence disturbed the public peace. In 2009, the statute did not require the
State to prove that defendant was the one who used force or violence; the State had to prove
only that defendant was acting together with persons who did use force or violence. Davis,
213 Ill. 2d at 471, 474 (applying the same subsection of the mob action statute, our supreme
court held that the State did not have to prove that defendant used force against the victim);
People v. Cotton, 393 Ill. App. 3d 237, 258 (2009).
¶ 73 However, effective January 1, 2010, the statute was amended to read: “A person commits
the offense of mob action when he or she engages in any of the following: *** the knowing
or reckless use of force or violence disturbing the public peace by 2 or more persons acting
together and without authority of law.” (Emphasis added.) 720 ILCS 5/25-1(a)(1) (West
2010). A plain reading of the 2010 amendment shows that the State then had to prove that
defendant was the one who engaged in the use of force or violence and that he did so
knowingly or recklessly. Landry v. Daley, 280 F. Supp. 938, 956 (N.D. Ill. 1968) (when a
statute uses the words “engaged in,” it means that the accused must have been “occupied in
or employed in” the action named). However, that was not the law in effect at the time the
offense was committed, and we apply the statute that was in effect at the time of the offense.
People v. Freeman, 404 Ill. App. 3d 978, 986 (2010).
¶ 74 Thus, defendant’s argument fails under a plain reading of the statute. Defendant’s
argument is that the same punch by defendant which the State used to establish defendant’s
causation of the murder was the same punch which the State relied on to show that defendant
used force for purposes of mob action. However, defendant is mistaken, because the State
was not required to show in 2009 that it was defendant who used force. The State was
required to establish only that defendant was acting in concert with others who did use force
-14-
or violence, which it did establish in the case at bar.
¶ 75 Second, even if we were to assume that the 2010 amendment applied here, it would not
help defendant. During its closing argument to the jury, the State argued that there were other
acts, besides the punch, that constituted a use of force by defendant. The evidence established
that, prior to the punch, defendant used a wooden board to swing at someone other than the
murder victim and that, after the punch, defendant was chasing other victims. With this
evidence, the State showed that the punch, which was the basis for the murder charge,
occurred in the middle of defendant’s “mob action” or his use of force or violence against
others. Thus, whether we apply the 2009 statute or the 2010 amendment, we must find that
the felony murder charge and its predicate felony of mob action were based on separate acts.
¶ 76 The case at bar is similar to People v. Davison, 236 Ill. 2d 232, 242-43 (2010), in which
our supreme court affirmed a defendant’s felony murder conviction based on mob action.
The Davison defendant made the same argument as defendant in the case at bar, namely, that
the acts constituting the predicate felony of mob action were the same acts inherent in the
commission of the murder. Davison, 236 Ill. 2d at 239. In Davison, the defendant and three
other men searched for the victim, located him, chased him and finally beat and stabbed him.
Davison, 236 Ill. 2d at 234. The victim died as a result of blood loss from 20 stab wounds.
Davison, 236 Ill. 2d at 235. Our supreme court rejected the defendant’s argument that the
same acts constituted both mob action and murder, on the grounds that (1) “the predicate
felony of mob action [was complete] before the end of the aggression that eventually resulted
in the victim’s death”; and (2) “the victim died as the result of cumulative blood loss from
the 20 stab wounds inflicted by defendant and his three co-offenders, rather than any
particular wounds inflicted by defendant alone.” Davison, 236 Ill. 2d at 242, 243.
¶ 77 Similarly, in the case at bar, the predicate felony of mob action was complete “before the
end of the aggression that eventually resulted in the victim’s death.” Davison, 236 Ill. 2d at
242. The predicate felony was complete when defendant bent down to pick up a wooden
board and started swinging it, and his swing was not toward the murder victim. Also, as in
Davison, the murder victim in the case at bar died as the result of multiple injuries inflicted
by defendant and his co-offenders, “rather than any particular wounds inflicted by defendant
alone.” Davison, 236 Ill. 2d at 243. Thus, applying the reasoning of Davison to the facts at
bar, we find that the acts inherent in the murder and the acts constituting the mob action were
not the same.
¶ 78 The State argues that we should not have even reached this issue because it was forfeited.
However, we find that defendant did not forfeit this issue because he preserved this issue by
raising it both at trial and in a posttrial motion. People v. Woods, 214 Ill. 2d 455, 470 (2005).
First, defendant objected at trial. When he moved for a directed verdict, he stated “mob
action cannot be the predicate felony for felony murder in this case because mob action
causing bodily harm is implicit in the death of Derrion Albert, and it is duplicative. So mob
action should not be the underlying predicate felony that justifies felony murder in this case.”
The State responded that “[i]t is all of his actions before the throwing of the punch that
allowed him to be found guilty of being a participant, an active participant in the mob
action.” The trial court did not find defendant’s argument persuasive and denied the motion
for a directed verdict. Next, in a posttrial motion, defendant claimed that the trial court erred
-15-
in denying the directed verdict motion. Since defendant objected both during trial and in a
posttrial motion, he preserved this issue for our review. Woods, 214 Ill. 2d at 470.
¶ 79 In addition, defendant’s argument is preserved for our review because it is directed to the
sufficiency of the evidence. “[W]hen a defendant makes a challenge to the sufficiency of the
evidence, his or her claim is not subject to the waiver rule and may be raised for the first time
on direct appeal.” Woods, 214 Ill. 2d at 470. In order to prove felony murder, the State has
the burden of proving separate acts and a separate felonious purpose underlying the murder,
which are separate and distinct from the acts and purpose underlying the predicate felony.
English, 2013 IL 112890, ¶ 29; Davison, 236 Ill. 2d at 243-44 (reaffirming its adherence to
the same-act doctrine and rejecting the State’s invitation to rely only on an analysis of
whether the felonious purpose underlying the predicate felony was distinct from an intent to
kill). Defendant’s argument here is that the State’s evidence was insufficient because it failed
to show separate acts underlying the murder and the mob action. Since defendant’s argument
was directed at the sufficiency of the evidence at trial, this argument was not waived for our
review on appeal. Thus, we considered his argument on review, but we do not find it
persuasive for the reasons already considered above.
¶ 80 III. Designation as an EJJP Case
¶ 81 Third, defendant claims that the trial court abused its discretion when it designated
defendant’s case EJJP, because (1) defendant was only 14 years old at the time of the
offense; (2) he had no prior record of criminal acts or delinquency; (3) his participation in
the offense at issue involved no premeditation or use of a weapon; and (4) he was amenable
to treatment as a juvenile offender.
¶ 82 We will reverse a trial court’s decision to designate a case EJJP only if the trial court
abused its discretion. In re Omar M., 2012 IL App (1st) 100866, ¶ 26. As noted, “ ‘[a]n abuse
of discretion occurs when no reasonable person would take the view adopted by the court.’ ”
In re Omar M., 2012 IL App (1st) 100866, ¶ 26 (quoting Trettenero v. Police Pension Fund,
333 Ill. App. 3d 792, 801 (2002)).
¶ 83 The purpose of designating a case as EJJP is to provide additional deterrence by
subjecting the minor, if found guilty, to both a juvenile sentence and a conditional adult
sentence. In re Omar M., 2012 IL App (1st) 100866, ¶ 24; 705 ILCS 405/5-810(4) (West
2010). The adult sentence is conditional because it is stayed on the condition that the minor
does not violate the provisions of his juvenile sentence. In re Omar M., 2012 IL App (1st)
100866, ¶ 24; 705 ILCS 405/5-810(4) (West 2010). If the minor satisfactorily completes his
juvenile sentence, the adult sentence is vacated. 705 ILCS 405/5-810(7) (West 2010).
¶ 84 The first step under the EJJP statute is for the State to file a petition, at any time prior to
trial, to designate the minor’s case as an EJJP case. In re Omar M., 2012 IL App (1st)
100866, ¶ 25; 705 ILCS 405/5-810(1)(a) (West 2010). The State’s petition must allege that
the minor was 13 years of age or older at the time of the offense and that the offense would
be a felony if committed by an adult. In re Omar M., 2012 IL App (1st) 100866, ¶ 25; 705
ILCS 405/5-810(1)(a) (West 2010). There is no dispute in the case at bar that the State
satisfied this first step.
-16-
¶ 85 The next step is a determination by the juvenile judge that there is probable cause to
believe that the allegations in the petition are true. In re Omar M., 2012 IL App (1st) 100866,
¶ 25; 705 ILCS 405/5-810(1)(a) (West 2010). In the case at bar, the juvenile judge made such
a determination, and no claims are raised on appeal to challenge it.
¶ 86 Once the juvenile judge makes a probable cause determination, it creates “a rebuttable
presumption that the proceeding shall be designated as an extended jurisdiction juvenile
proceeding.” 705 ILCS 405/5-810(1)(a) (West 2010); In re Omar M., 2012 IL App (1st)
100866, ¶ 25. The judge must enter an order designating the case as an EJJP case, unless the
court finds, based on clear and convincing evidence, that sentencing the minor as an adult
would not be appropriate for the minor. In re Omar M., 2012 IL App (1st) 100866, ¶ 25; 705
ILCS 405/5-810(1)(b) (West 2010). The EJJP statute provides a list of five factors which the
trial court must evaluate when making this decision: (1) the minor’s age; (2) prior history,
including his juvenile record, mental and physical health, and his educational and social
background; (3) the circumstances and seriousness of the offense; (4) the advantages of
treating the minor within the juvenile justice system; and (5) the security needs of the public.
In re Omar M., 2012 IL App (1st) 100866, ¶ 25; 705 ILCS 405/5-810(1)(b) (West 2010).
¶ 87 When evaluating the five listed factors, the trial court must give greater weight to (1) the
seriousness of the alleged offense and (2) the minor’s prior criminal or juvenile record, than
to any of the other listed factors. In re Omar M., 2012 IL App (1st) 100866, ¶ 26, 705 ILCS
405/5-810(1)(b) (West 2010). In the case at bar, it is undisputed that defendant had no prior
criminal or juvenile record. In light of his nonexistent record, defendant argues that the trial
court failed to consider his rehabilitative potential. In addition, with respect to the
seriousness of the offense, defendant argues that his role in the offense was limited.
¶ 88 We acknowledge that defendant was only 14 years old, that he had no prior criminal or
juvenile record, and that he had rehabilitative potential; however, we cannot say that the trial
court abused its discretion, in light of the seriousness of the offense. As a reviewing court,
we are not called upon to determine what we would do if we were presiding as the trial court;
rather, we may reverse only if no reasonable person would take the view adopted by the trial
court. In re Omar M., 2012 IL App (1st) 100866, ¶ 26 (quoting Trettenero, 333 Ill. App. 3d
at 801). In the case at bar, we cannot say that the trial court’s designation was unreasonable,
for the reasons discussed below.
¶ 89 The record before us shows that the trial court carefully considered each and every factor
listed in the EJJP statute. In re Omar M., 2012 IL App (1st) 100866, ¶ 36 (citing In re
Dontrale E., 358 Ill. App. 3d 136, 141 (2005)). This is not a case where defendant claims that
the trial court failed to discuss a particular factor. People v. Clark, 119 Ill. 2d 1, 14 (1987)
(our supreme court found that the transfer hearing was inadequate where the juvenile judge
failed to consider all of the listed factors). Instead, defendant challenges only the trial court’s
weighing of the factors, asserting that the trial court abused its discretion by not giving more
weight to defendant’s lack of a prior record and his rehabilitative potential.
¶ 90 What this argument overlooks is that the seriousness of the offense is one of the two most
important factors that the trial court must consider. In re Omar M., 2012 IL App (1st)
100866, ¶ 26, 705 ILCS 405/5-810(1)(b) (West 2010). The State’s proffer showed that
-17-
defendant participated in a mob action and punched a minor in the face without any known
personal animosity toward that minor. Defendant knocked the minor down as the minor was
struggling to rise, thereby making him an easy target for the mob which eventually
surrounded and participated in killing him. In light of the seriousness of the offense, we
cannot say that the trial court abused its discretion by designating defendant’s case as an
EJJP case–subjecting defendant to an adult sentence that he may never have to serve.
¶ 91 IV. Apprendi and Vagueness Claims
¶ 92 Defendant also claims that the EJJP statute must be struck down as unconstitutional
because it violates a juvenile defendant’s due process rights and is unconstitutionally vague.
Specifically, defendant argues: (1) that the EJJP statute violates a juvenile defendant’s right
to due process because it subjects him to the increased punishment of a conditional adult
sentence without a jury finding, in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000);
and (2) that it is unconstitutionally vague because it does not provide fair warning of the
conduct that will invoke the imposition of the adult sentence.
¶ 93 These exact same constitutional challenges were resolved by this court in a prior opinion,
In re Omar M., 2012 IL App (1st) 100866; and recently, our supreme court adopted our
reasoning concerning Apprendi, stating “[w]e agree with the reasoning put forth by our
appellate court” (In re M.I., 2013 IL 113776, ¶ 44).
¶ 94 A. Apprendi
¶ 95 In his brief to this court, defendant argues that “the facts that qualify the juvenile for
prosecution under the EJJP statute are not required to be submitted to a jury for a
determination or proved beyond a reasonable doubt.” In Omar M., the defendant made
almost the exact same argument that the effect of an EJJP “designation is to expose a
respondent to the longer adult sentence based on information found by the judge on the basis
of only probable cause.” In re Omar M., 2012 IL App (1st) 100866, ¶ 62.
¶ 96 In the case at bar, defendant argues, “[b]ecause the EJJP statute did not require that the
facts used to extend [his] sentence beyond the maximum juvenile sentence *** be proved to
a jury beyond a reasonable doubt, the EJJP statute violated *** Apprendi.” In Omar M., we
answered this argument, explaining “the statutory maximum for Apprendi purposes is not
the maximum punishment allowed in the juvenile system.” In re Omar M., 2012 IL App (1st)
100866, ¶ 63. In Omar M., as in the case at bar, “a jury found every element required for the
statutory sentence beyond a reasonable doubt,” and “[t]he sentence was within the statutory
range of 20 to 60 years for first-degree murder.” In re Omar M., 2012 IL App (1st) 100866,
¶ 64. Thus, there was no Apprendi violation. In re Omar M., 2012 IL App (1st) 100866, ¶ 65.
¶ 97 In his brief, defendant acknowledged that at least four appellate court decisions have held
that the EJJP statute did not violate Apprendi. In Omar M., 2012 IL App (1st) 100866, ¶ 65;
In re J.W., 346 Ill. App. 3d 1, 10-12 (2004); In re Christopher K., 348 Ill. App. 3d 130, 142-
43 (2004), aff’d in part & rev’d in part on other grounds, 217 Ill. 2d 348, 363 (2005); In re
Matthew M., 335 Ill. App. 3d 276, 286-90 (2002). Nonetheless, defendant argued that these
cases were wrongly decided. However, between the filing of his brief and the filing of our
-18-
opinion, our supreme court issued an opinion adopting the reasoning of these appellate cases
and thus settling, once and for all in this state, the outcome of this argument. In re M.I., 2013
IL 113776, ¶¶ 44, 46.
¶ 98 Citing with approval our opinion in Omar M., our supreme court agreed, stating: “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.” In re M.I.,
2013 IL 113776, ¶ 46. Our supreme court explained that, where the fact finder “found every
element for the statutory sentence beyond a reasonable doubt,” and where the sentence was
“within the statutory range of the criminal offense,” there was no Apprendi violation. In re
M.I., 2013 IL 113776, ¶ 46.
¶ 99 B. Vagueness
¶ 100 In his brief to this court, defendant also claims that the EJJP statute is “unconstitutionally
vague, because it [1] does not provide fair warning of the conduct that will invoke the
imposition of the adult sentence and [2] fails to provide adequate guidance to authorities
called upon to enforce its provisions.”
¶ 101 The EJJP statute provides that a court may revoke the stay of a minor’s adult sentence
if he “violate[s] the conditions of his or her sentence” and shall revoke the stay if he
“committed a new offense.” (Emphases added.) 705 ILCS 405/5-810(6) (West 2008). In the
case at bar, defendant claims: that the words “conditions” and “offense” are
unconstitutionally vague and that, although the EJJP statute permits a court to revoke the stay
after a violation of “conditions,” it provides no guidelines concerning when the court should
do so.
¶ 102 As we explained in Omar M., the term “conditions” explicitly refers to the “ ‘conditions
of his or her sentence.’ ” (Emphasis in original.) In re Omar M., 2012 IL App (1st) 100866,
¶ 84 (quoting 705 ILCS 405/5-810 (6) (West 2008)). “Where the trial court orders provisions
such as probation or drug counseling in addition to the juvenile detention term, those
provisions of the juvenile sentence would be part of the *** ‘conditions.’ Where the trial
court does not impose any additional provisions at sentencing, the term ‘conditions’ refers
only to the minor’s completion of his or her sentence and the minor’s adherence to the
Illinois Department of Corrections (IDOC) rules and regulations during that time.” In re
Omar M., 2012 IL App (1st) 100866, ¶ 84; Christopher K., 348 Ill. App. 3d at 146, 147
(finding that the EJJP statute was not vague, the appellate court held that a juvenile violates
the “conditions of his or her sentence” by a “failure to comply with the juvenile sentence”),
aff’d in part & rev’d in part on other grounds, 217 Ill. 2d 348, 363 (2005). As a result, this
term is not vague. In re Omar M., 2012 IL App (1st) 100866, ¶ 84.
¶ 103 The court in Omar M. also addressed the challenge to the meaning of the term “offense”:
“The term ‘offense’ is equally plain and unambiguous, meaning ‘criminal offense.’ ” In re
Omar M., 2012 IL App (1st) 100866, ¶ 85. Accord Christopher K., 348 Ill. App. 3d at 147
(“we find the legislature must have meant ‘offense’ as a criminal offense as such is defined
in the Criminal Code”), aff’d in part & rev’d in part on other grounds, 217 Ill. 2d 348, 363
(2005). As for the alleged lack of guidance, the court explained, “[c]ontrary to [defendant’s]
-19-
claim, the Juvenile Court Act’s section on ‘Purpose and policy’ provides guidance to trial
court judges,” and the Act “explicitly grants trial court judges discretion to affect these
goals.” In re Omar M., 2012 IL App (1st) 100866, ¶ 88. For these reasons, we found in Omar
M., and we still continue to find, that the EJJP statute is not unconstitutionally vague. In re
Omar M., 2012 IL App (1st) 100866, ¶ 91 (“Because the terms of the [EJJP] statute are plain
and unambiguous, the statute satisfies due process requirements and is not unconstitutionally
vague.”); accord Christopher K., 348 Ill. App. 3d at 146-47, aff’d in part & rev’d in part on
other grounds, 217 Ill. 2d 348, 363 (2005). Our supreme court concluded in Christopher K.
that no authoritative determination of the vagueness issues was necessary at that time, since
the appellate court had thus far uniformly rejected defendant’s claims that the EJJP statute
was vague. Christopher K., 217 Ill. 2d at 362.
¶ 104 In its motion to cite additional authority, the State argued that the supreme court’s recent
decision in In re M.I., 2013 IL 113776, ¶ 36, resolved defendant’s vagueness claim.
However, the M.I. opinion does not decide defendant’s claim for the following reason. In In
re M.I., 2013 IL 113776, ¶ 36, the supreme court held that a defendant lacked standing, on
the particular facts and circumstances of the case before it, to raise a vagueness challenge to
the term “conditions” in the EJJP statute. In In re M.I., 2013 IL 113776, ¶ 34, the State had
already filed a petition to revoke the stay of the juvenile defendant’s adult sentence, and had
done so solely on the ground that the defendant had committed a new felony offense.
However, on appeal, the M.I. defendant claimed only that the term “conditions” was vague,
but he did not claim that the term “offense” was vague in any way. In re M.I., 2013 IL
113776, ¶ 36. Since any vagueness in the term “conditions” was going to have no impact on
him, our supreme court held that he lacked standing to challenge the vagueness of that
particular term. In re M.I., 2013 IL 113776, ¶ 36. However, our supreme court emphasized
the narrow precedential effect of its holding in In re M.I., 2013 IL 113776, ¶ 36, by stating
that it made “no determination today whether a petition to revoke the stay must be granted
or even filed to trigger standing.”
¶ 105 Lastly, defendant argues that the EJJP statute is not only facially vague but is also vague
as applied to him because the trial court failed to outline conditions specific to his juvenile
sentence. We reject this argument for the same reason that we rejected his facial challenge.
As we explained above, “[w]here the trial court does not impose any additional provisions
at sentencing, the term ‘conditions’ refers only to the minor’s completion of his or her
sentence and the minor’s adherence to the Illinois Department of Corrections (IDOC) rules
and regulations during that time.” In re Omar M., 2012 IL App (1st) 100866, ¶ 84;
Christopher K., 348 Ill. App. 3d at 146, aff’d in part & rev’d in part on other grounds, 217
Ill. 2d 348, 363 (2005). As a result, this term is neither facially vague nor vague as applied
to defendant. In re Omar M., 2012 IL App (1st) 100866, ¶ 97 (“we find that the statute
satisfied due process [as applied] for the same reasons that the statute is not vague on its
face”).
¶ 106 CONCLUSION
¶ 107 On this direct appeal, defendant claimed: (1) that the trial court committed reversible
-20-
error by refusing to instruct the jury on battery, where battery is a lesser-included offense of
mob action and, thus, a lesser included offense of felony murder predicated on mob action;
(2) that this court must vacate defendant’s conviction for felony murder, where the same acts
that formed the basis for murder also formed the basis for the predicate felony of mob action;
and (3) that the trial court erred in designating defendant’s case as an EJJP case, where
defendant was only 14 years old, he had no history of delinquency, his acts involved no
premeditation or use of a weapon, and he was amenable to treatment as a juvenile offender.
¶ 108 Defendant also claimed that the EJJP statute must be struck down as unconstitutional
because it violates a juvenile defendant’s due process rights, and because it is
unconstitutionally vague. Specifically, defendant argued: (1) that the EJJP statute violates
a juvenile defendant’s right to due process because it subjects him to the increased
punishment of a conditional adult sentence without a jury finding, in violation of Apprendi
v. New Jersey, 530 U.S. 466 (2000); and (2) that it is unconstitutionally vague because it
does not provide fair warning of the conduct that will invoke the imposition of the adult
sentence.
¶ 109 For the foregoing reasons, we do not find these arguments persuasive and, thus, we
affirm.
¶ 110 Affirmed.
-21-