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 1-14-2421

offender's youth and attendant characteristics as delineated by the United States Supreme

Court in Miller v. Alabama,

, ___,

(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,

(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,

,

(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."

at ___,

. Shermaine asserts that it also violates the

5 1-14-2421

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.,

(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."

. 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.

. But, as another

panel of this court held in In re A.P.,

, 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,

(2011). Statutes carry a strong presumption of constitutionality.

To overcome this presumption, the party challenging the statute must clearly establish

that it violates the constitution.

If reasonably possible, this court will construe a statute so

as to affirm its constitutionality. People v. Johnson,

(2007). Accordingly,

we will resolve any doubt as to the construction of a statute in favor of its validity. People v.

Boeckmann,

(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,

.

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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.,

(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,

.

¶ 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,

, 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.)

¶ 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,

(1980). Relying on the United States Supreme Court decision in Rummel v. Estelle,

(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,

. 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,

.

¶ 20 Shermaine acknowledges the holding in Chrastka, as well as its recent application in In

re A.P.,

(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,

(2005)), a sentence of life imprisonment without the

possibility of parole for juveniles convicted of nonhomicide offenses (Graham v. Florida,

(2010)), and a mandatory sentence of life without the possibility of parole

for homicide committed by a juvenile (Miller,

,

). 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,

,

. 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.

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].’

,

."

Miller,

,

.

¶ 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,

,

. 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 ___,

) 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.”

at ___,

.

¶ 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.

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."

at ___,

.

¶ 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,

.

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,

. Citing Clemons,

, 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,

(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.

. 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.

. 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]."

. 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."

.

¶ 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

13 1-14-2421

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,

; In re Rodney H.,

. 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,

. 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” (

)—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,

, 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,

, 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,

.

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

15 1-14-2421

cases."

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.

16