FIRST DIVISION JUNE 8, 2015

No. 1-14-3507

) Appeal from the ) Circuit Court of In re ISAIAH D., a Minor, ) Cook County. ) Respondent-Appellant. ) No. 14 JD 2396 ) ) Honorable ) Andrew Berman, ) Judge Presiding.

JUSTICE CUNNINGHAM delivered the judgment of the court, with opinion. Justice Harris concurred in the judgment and opinion. Justice Connors specially concurred, with opinion.

OPINION

¶1 This appeal arises from the trial court's November 25, 2014 order adjudicating

respondent-appellant Isaiah D. (respondent) to be an habitual juvenile offender (HJO) and a

violent juvenile offender (VJO) and sentencing him to the Department of Juvenile Justice (DOJJ)

until the age of 21, pursuant to the mandatory sentencing provisions of the Juvenile Court Act of

1987 (Juvenile Court Act or Act). See 705 ILCS 405/5-815, 5-820 (West 2012).

¶2 Respondent's appeal raises two sets of challenges to his sentence. First, respondent

argues that his guilty plea in a prior case in 2013 cannot be used as a predicate offense to support

his HJO or VJO status, due to the trial court's alleged errors in admonishing respondent in the

2013 case to ensure that his plea was knowing and voluntary. In other words, respondent

attempts to challenge the sufficiency of the admonishments given in his 2013 guilty plea, within

the context of this appeal of his 2014 conviction in which he was adjudicated an HJO and a VJO.

Separately, respondent urges that the Juvenile Court Act's mandatory sentencing provisions for a 1-14-3507

juvenile adjudicated an HJO or a VJO violate the eighth amendment of the United States

Constitution and the proportionate penalties clause of the Illinois Constitution.

¶3 BACKGROUND

¶4 Respondent, a minor born in 1997, has been adjudicated a delinquent minor on three

occasions—in 2012, 2013, and 2014. In conjunction with a jury verdict finding him guilty of the

third offense in 2014, he was adjudged an HJO pursuant to section 5-815 of the Juvenile Court

Act, which provides that a minor is an HJO upon a third adjudication of delinquency for an

offense that would be a felony if prosecuted as an adult. 705 ILCS 405/5-815 (West 2012). At

the same time, he was adjudicated a VJO under section 5-820 of the Juvenile Court Act. That

provision of the Juvenile Court Act applies upon a minor's second finding of delinquency for an

offense that, in an adult case, "would have been a Class 2 or greater felony[,] involving the use or

threat of physical force or violence," or which involves a firearm. 705 ILCS 405/5-820 (West

2012).

¶5 The respondent's guilt in the three underlying offenses is not in dispute. In 2012,

respondent was adjudicated a delinquent minor after entering a guilty plea to the offense of

possession of a stolen motor vehicle. The facts of that case are not at issue in this appeal.

¶6 In 2013, in a separate case, respondent entered a plea of guilty to the charge of

aggravated discharge of a firearm. The facts underlying the commission of that offense are not

at issue in this appeal. However, respondent’s appeal relies largely on the circumstances

surrounding his guilty plea in the 2013 case.

¶7 Respondent, who was represented by counsel in the 2013 case, appeared before the court

on July 25, 2013. On that date, respondent's counsel, the assistant State's Attorney, and the court

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participated in a conference and reached a plea agreement: in exchange for respondent’s guilty

plea, respondent would be sentenced to four months in the DOJJ, after which time the court

would receive a report regarding respondent's behavior. If the report was positive, the court

would release respondent on probation; otherwise, respondent could be sentenced to additional

time in the DOJJ. After the conference, respondent's counsel informed the court that respondent

would accept the plea agreement. According to the transcript, the court then addressed

respondent directly as follows:

"THE COURT: Okay. So I told you, Isaiah, that – I spoke

to your lawyer, actually, what I would do if you were to plead

guilty to the charge of aggravated discharge of a firearm, that I

would sentence you to four months in the Department of Justice or

DOC with a bring back, meaning if you come back through the

criminal courts that I'd put you back on a type of probation, but

you have to come back through the court. If you don’t come back

through this court,[ 1] you'll just go back there and serve out the

nine to twelve months, whatever it is that they give you. So do you

understand that? Is that a yes?

MINOR RESPONDENT: Yes.

1 In proceedings on September 24, 2014, the trial court explained that the phrase "come back through this court" was an inaccurate transcription of the court's discussion of the behavioral report to be submitted to the court after respondent's four months in the DOJJ had been completed. Respondent does not dispute this correction.

3 1-14-3507

THE COURT: Okay. Now, by accepting that offer, that

means that you're pleading guilty to the charge. It means that there

won't be a trial today. Where the witnesses that were in court

today would testify, you would be here with your lawyer watching

it happen. [Where you would watch your lawyer question the

witnesses 2], you could be a witness in your own case if you chose

to be. You could also call witnesses in your own defense if you

wanted to, and the State would have to prove to me beyond a

reasonable doubt that you did commit the crime of aggravated

discharge of a firearm on June 20th. So that will not happen if we

don't have a trial. So are you clear about all of those things?

MINOR RESPONDENT: Yes.

THE COURT: Now, you know the sentence is going to be

– I can't sentence you today because I have to get an updated social

investigation, so that will take – well, the problem is that I'm going

to be gone for two weeks, so because of that, I guess you're going

to be held here one week – I'm going to credit the four months

from today, but I won't be able to sentence you until I come back

2 Although the original transcript from the 2013 proceedings recorded the phrase "[w]hereas you question the witnesses," in proceedings on September 24, 2014, the trial court explained that the transcript was incorrect, and that the trial court actually said "[w]here you would watch your lawyer question the witnesses." Respondent does not dispute this correction.

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in a couple of weeks because I just want to have time to get that

done.

So this is what you want to do today then? Do you accept

that offer?

MINOR RESPONDENT: Yes."

¶8 Accordingly, respondent was sentenced pursuant to the July 2013 guilty plea. After

serving four months in the DOJJ, respondent was placed on probation. There is no indication in

the record, and respondent does not dispute, that he never moved to withdraw his guilty plea or

to appeal from the July 2013 sentence following his guilty plea.

¶9 In 2014, the instant case arose out of a new offense committed by respondent and

unrelated to the discharge of a firearm that was the subject of the 2013 guilty plea. On June 17,

2014, respondent was one of four young men who were arrested for assaulting and robbing a 15-

year-old boy, Anthony Sargent, of the dirt bike which Sargent had been riding. According to

Sargent, one of the four men struck him, causing him to lose control of the bike and fall to the

ground. Sargent testified that respondent then threw him to the ground while another individual

removed Sargent’s cellular phone from his pocket. Respondent and the other three assailants

took Sargent's bike and left the scene. Respondent and the other three young men were arrested

later that day hiding in the basement of one of the offenders' homes, where Sargent's bike and

cellular phone were recovered.

¶ 10 Respondent was charged with aggravated battery and robbery. Before trial, the State

filed a petition seeking to have respondent adjudicated as an HJO pursuant to section 5-815 of

the Juvenile Court Act, based on his 2012, 2013, and 2014 offenses. See 705 ILCS 405/5-815

5 1-14-3507

(West 2012). In the same petition, the State also sought adjudication of respondent as a VJO

pursuant to section 5-820 of the Act, on the basis of his 2013 guilty plea to aggravated discharge

of a firearm and the 2014 battery and robbery. See 705 ILCS 405/5-820 (West 2012).

¶ 11 On August 14, 2014, respondent filed a motion to dismiss the State's petition to prosecute

him as an HJO and VJO. That motion argued that, when respondent agreed to plead guilty on the

2013 charge of aggravated discharge of a firearm, the trial court violated his due process rights

by failing to determine whether respondent understood the rights that he was waiving by entering

the plea; failing to admonish him as to the consequences of his plea and the maximum penalty

that could be imposed; and failing to determine whether the plea was voluntary. As a result of

the alleged deficiencies surrounding that plea, respondent argued that the 2013 plea of guilty to

aggravated discharge of firearm could not be used as a predicate offense to establish respondent's

status as either an HJO or a VJO.

¶ 12 The State opposed the motion, arguing that the trial court's admonishments in the 2013

plea complied with due process requirements and that respondent understood his rights and

entered the guilty plea knowingly and voluntarily. The State argued that the court correctly

advised respondent that after four months in the DOJJ he could be recommitted to the DOJJ for

"whatever it is that they give you." The State argued that the court was not required to "use

magic words to admonish" respondent, but that it was sufficient that respondent was aware of his

rights—specifically, that he would serve only four months in the DOJJ and be permitted to serve

the remainder as probation rather than in the custody of DOJJ. The State claimed the trial court

"went above and beyond and gave an in-depth description of the trial rights the minor was giving

up" and a "complete and accurate statement of the possible consequences of entering the

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admission."' The State also noted that if respondent "had appealed or attacked the plea directly,

any insufficiency in the admonishments could have been remedied" in the 2013 case, and that he

"should not be allowed to accept a plea agreement when it behooves him to do so, and then,

having never attacked it directly, repudiate its collateral use and avoid the lawful consequences

of his actions."

¶ 13 On September 24, 2014, the trial court (which was the same judge who had presided over

the entry of respondent's 2013 guilty plea) heard argument and denied respondent's motion to

dismiss the VJO and HJO petitions. Notably, at the September 24, 2014 hearing, the trial court

stated that there were several errors in the official transcript of the 2013 admonishments. With

respect to the portion of the admonishments that was transcribed as the court telling respondent

that "you have to come back through the court" during the 2013 hearing, the judge explained that

this was an error:

"[W]hat I really was saying and what the transcript should have

said was I'm talking about coming back with a positive report –

which rhymes with court – and that's what we always say. And

you'd have to come back with a report and if you don’t come back

with a positive report ***. And so that whole paragraph is

nonsensical and the real thing that was said was talking about

coming back with a positive report to be then vacated. And I know

all the lawyers will not question that because you've all heard me

say that many times, and you know that's a typo."

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¶ 14 The court also stated that the portion of the transcript that says "[w]hereas you question

the witnesses" was wrong, explaining: "What I always say is [']where you would watch your

lawyer question the witnesses['], and that's what is said in every admonishment." Respondent

did not and does not dispute the trial court’s clarifications regarding the contents of its 2013

admonishments.

¶ 15 The State argued that the admonishments were more than sufficient, as "what the Court

admonished him would happen is exactly what did happen in that case—*** he served his four

months; he had a positive report; and then he was placed on probation." Respondent argued that

the court had failed to adequately admonish him, particularly "with respect to the maximum

punishment that can be provided." Respondent argued that although the court had told

respondent he could serve "9 to 12 months" after review of the report following his initial 4

months in custody, that time frame was "a guideline, but it is not the maximum punishment that

can be provided on a Class 1 felony."

¶ 16 The trial court noted that "[respondent] was in fact vacated after four months and put

back on probation," and thus respondent "got exactly the sentence that he was promised" at the

time of his 2013 plea. The trial court concluded that its admonishments had been sufficient, as it

had "made sure that [respondent] understood *** 'the things he was giving up' and exactly the

sentence he was going to receive, which was exactly the sentence that he did receive." Thus, the

court denied respondent's motion to dismiss the State's petition seeking to adjudicate him as an

HJO and a VJO.

¶ 17 A jury trial proceeded with respect to respondent's involvement in the 2014 robbery of

Sargent. On November 5, 2014, the jury found respondent guilty of aggravated battery and

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robbery. Respondent was sentenced on November 25, 2014. As the Juvenile Court Act states

that a juvenile who is adjudicated either an HJO or a VJO "shall" be committed to the DOJJ until

the age of 21, the trial court entered this mandatory sentence. See 705 ILCS 405/5-815, 5-820

(West 2012). Respondent filed a timely notice of appeal from that sentence on November 26,

2014; thus we have jurisdiction over his appeal pursuant to Illinois Supreme Court Rule 606(b).

Ill. S. Ct. R. 606(b) (eff. Feb. 6, 2013). The State does not dispute that we have jurisdiction over

respondent's constitutional challenges to his mandatory sentence. However, as discussed below,

the State disputes our jurisdiction with respect to respondent's arguments regarding the

admonishments given at the time of his 2013 guilty plea, which respondent faults as the predicate

for his adjudication as an HJO or a VJO.

¶ 18 ANALYSIS

¶ 19 Before we may reach the substance of the parties' arguments regarding the 2013

admonishments which respondent claims were insufficient, we must first address the State's

contention that we lack jurisdiction to review those admonishments. The State makes multiple

jurisdictional arguments.

¶ 20 First, the State argues that we lack jurisdiction to consider respondent's challenge to the

use of the 2013 plea to support his status as an HJO and a VJO because "it is not mentioned in

respondent's Notice of Appeal." The State argues that "respondent only listed that he was

appealing the robbery finding" and that his notice contained "no mention of the HJO or VJO

findings." Our supreme court has held that a notice of appeal is to be "liberally construed" and

"will confer jurisdiction on an appellate court if the notice, when considered as a whole, fairly

and adequately sets out the judgment complained of and the relief sought so that the successful

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party is advised of the nature of the appeal." Burtell v. First Charter Service Corp.,

(1979).

¶ 21 Liberally construed, the notice of appeal in this case encompassed the HJO and VJO

findings. The notice of appeal is initiated by use of a form which states: "An Appeal is taken

from the Order of Judgment described below." The form contains a list of blank spaces for the

appellant to provide information as to the nature of the offense, judgment, the date of judgment,

and sentence. Although in respondent's notice of appeal, "robbery" is handwritten in the entry

for "offense," the form also references the sentence of "commit[ment] to DOC [Department of

Corrections] until 21" and the sentencing date of November 25, 2014. As that particular

sentence was specifically mandated by the HJO and VJO provisions of the Juvenile Court Act,

the guilty plea in the 2013 case underpinned respondent's status as an HJO and a VJO and was

implicated by the notice of appeal.

¶ 22 There is nothing in the applicable rules of our supreme court suggesting that the notice of

appeal must contain further specificity. Rule 606 governs the perfection of appeals from juvenile

court cases as well as criminal matters. Ill. S. Ct. R. 606 (eff. Feb. 6, 2013). Rule 606(d) sets

forth a sample notice of appeal form and states that a party's "notice of appeal shall be

substantially in the following form." Ill. S. Ct. R. 606(d) (eff. Feb. 6, 2013). The sample form

set forth in Rule 606(d) contains entries for "[d]ate of judgment or order," "[o]ffense of which

convicted" and "[s]entence."

The form used by respondent in this case is substantially similar

to that which is prescribed by Rule 606(d). The rule does not suggest that respondent must

specifically state that he is challenging his HJO and VJO status, in addition to specifying the

underlying judgment or sentencing order.

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¶ 23 The case cited by the State regarding respondent's allegedly insufficient notice of appeal

concerned a civil appeal, and was not governed by Rule 606. See McGath v. Price,

(2003). The appellate court in that case found that there was no jurisdiction to

review an order that "was not designated in any manner whatsoever in the notice of appeal."

(Emphasis added.)

. That is not the situation here, as respondent specified that he was

appealing the November 25, 2014 order and corresponding sentence. Accordingly, we reject the

State's argument that respondent's notice of appeal is insufficient to invoke appellate jurisdiction.

¶ 24 The State additionally challenges our jurisdiction based upon respondent's failure to file

a motion to withdraw his 2013 guilty plea for aggravated discharge of a firearm or to file an

appeal from his sentence in the 2013 case, which was a separate case from the 2014 robbery case

that adjudicated him an HJO and a VJO. The State argues that the 2013 case was the proper

forum for respondent to challenge the adequacy of the admonishments surrounding his 2013

guilty plea, and that his failure to contest that plea in a timely manner deprives us of appellate

jurisdiction to consider those admonishments within the context of this subsequent 2014 case. In

other words, respondent's adjudication as an HJO and a VJO, which was done in the 2014 case,

rests in part upon his guilty plea entered in the 2013 case and his adjudication as an HJO and a

VJO will only stand if the 2013 guilty plea is allowed to stand.

¶ 25 The State's argument relies principally on our supreme court's 2006 decision in another

juvenile delinquency case involving a guilty plea, In re J.T.,

(2006). In J.T., a

juvenile agreed to plead guilty in exchange for a sentence of probation.

. After the trial

court admonished the juvenile of the consequences of the guilty plea, the court accepted the plea.

At the time that the trial court sentenced the juvenile to 18 months' probation, the court

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admonished the juvenile that he had a right to appeal the sentence within 30 days.

.

The juvenile did not move to withdraw his guilty plea or file a notice of appeal.

.

¶ 26 Over two months later, the State filed a petition alleging that the juvenile had violated the

provisions of the conditions of his probation by failing to attend school and committing other

offenses.

Following an evidentiary hearing, the court found that the juvenile had violated the

provisions of his probation and committed the juvenile to the Department of Corrections.

.

¶ 27 The juvenile then appealed, arguing that when the trial court sentenced him to probation,

it had failed to properly admonish him regarding his right to seek withdrawal of his guilty plea

pursuant to Supreme Court Rule 605 (Ill. S. Ct. R. 605 (eff. Nov. 1, 2000)), and that the case

should be remanded to the trial court to permit him to move to withdraw his guilty plea. J.T.,

. The juvenile in J.T. "acknowledged that he did not file a written motion to

withdraw his plea or a notice of appeal, but argued that because juveniles have no right to

postconviction relief, the appellate court should consider the merits of his claims in the interest

of fairness."

¶ 28 The State responded that "because J.T. did not file a timely notice of appeal, the appellate

court was without jurisdiction to hear any issues relating to J.T.’s guilty plea."

The appellate

court rejected that argument, holding that "where the trial court has failed to give proper

[admonishments], the judgment may be attacked at any time."

Pursuant to Supreme Court

Rule 605(c) (Ill. S. Ct. R. 605(c) (eff. Nov. 1, 2000)), the appellate court in J.T. proceeded to find

that the trial court's admonishments had been insufficient because they failed to advise the minor,

among other things, that he could have an attorney to assist him in the postplea motion, that he

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would waive any grounds not raised in the motion, and that the State could reinstate any charges

that were dismissed as part of the plea negotiations. J.T.,

.

¶ 29 Upon appeal, our supreme court, however, concluded that the appellate court had lacked

jurisdiction to consider the sufficiency of the admonishments given in the juvenile's earlier plea.

First, the supreme court noted that "the appellate court's rationale for holding that a defendant

may attack the judgment at any time when the trial court has failed to give proper

[admonishments] was rejected" by a 2004 supreme court decision.

at 345 (citing People v.

Jones,

(2004)). The supreme court explained that in Jones, it had concluded that

"while the giving of improper [admonishments] constitutes error, it does not divest the circuit

court of jurisdiction" so as to render a resulting conviction a "void" judgment that may be

attacked at any time.

at 346 (citing Jones,

).

¶ 30 The supreme court further held that the appellate court's decision "suffer[ed] from a more

fundamental flaw–—[specifically,] the appellate court lacked jurisdiction to consider the

admonishment issue" due to the juvenile's failure to file a timely appeal following the entry of

judgment on the juvenile's guilty plea.

The supreme court stated that "an appeal is perfected

by the timely filing of a notice of appeal, and it is this step which vests the appellate court with

jurisdiction."

(citing Ill. S. Ct. R. 606(a) (eff. Dec. 13, 2005)). The court explained: "Rule

604(d) requires that in order to appeal from a judgment entered upon a plea of guilty, a defendant

must first file in the trial court a written motion to either withdraw his guilty plea or reconsider

the sentence. [Citation.] In such cases, the notice of appeal must be filed within 30 days of the

denial of that motion. [Citation.] The appellate court may also allow the filing of a late notice of

appeal. [Citation.]"

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¶ 31 The supreme court concluded: "In the present case, J.T. did not file a timely notice of

appeal from the order sentencing him to probation, a written motion to either withdraw his plea

or reconsider his sentence, or a motion for leave to file a late notice of appeal. Consequently, the

appellate court had no jurisdiction to consider any issues arising from either his guilty plea or his

sentence." Id. at 346-47. The court concluded that "because J.T. failed to timely perfect an

appeal from the order sentencing him to probation, the appellate court had no jurisdiction to

consider the issue of whether the cause should be remanded for proper Rule 605

[admonishments]." Id. at 353.

¶ 32 Notably, in addition to finding that the appellate court lacked jurisdiction, the supreme

court in J.T. discussed the minor's additional argument that the supreme court should exercise its

supervisory authority to remand the case to the trial court for proper admonishments; permit him

to file a late notice of appeal; or permit him to litigate the issue in a postconviction proceeding.

Id. at 347. However, after reviewing the content of the trial court's admonishments and noting

the minor's lengthy history of delinquency, the supreme court determined that "supervisory relief

is not warranted." Id. at 347-48 (noting that although the trial court's admonishments "did not

strictly comply with Rule 605(c), they were sufficient to put J.T. on notice that he could

challenge his guilty plea, and that some action on his part within 30 days was necessary if he

wished to appeal"). Further, the supreme court in J.T. specifically declined to "address the issue

of whether juveniles can seek relief under the Post-Conviction Hearing Act" (725 ILCS 5/122-1

et seq. (West 2012)) on the grounds that "the parties offer[ed] minimal argument on this issue."

J.T.,

.

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¶ 33 Notably, Justice Freeman authored a dissenting opinion in J.T. which articulated fairness

concerns that we find are also implicated by respondent’s appeal in this case. Justice Freeman's

dissent expressed concern that because the majority found that the appellate court lacked

jurisdiction, and further did not address whether the Post-Conviction Hearing Act applied to

juveniles, coupled with the supreme court's failure to exercise its supervisory authority, J.T. was

"left without remedy in spite of his age, his lack of maturity, and his limited mental faculties."

(Freeman, J., dissenting).

¶ 34 However, Justice Freeman "agree[d] that the appellate court lacked jurisdiction because

J.T. failed to file a timely notice of appeal or request leave to file a late appeal."

.

Justice Freeman explained that he dissented because he believed that "J.T.'s personal

circumstances, as well as the systemic differences between juveniles and adult defendants[,]

mandate the use of supervisory authority to provide J.T. the right to meaningful review."

Justice Freeman remarked that the majority opinion "turn[ed] a deaf ear to J.T.'s circumstances"

by failing to "determine whether his status as a juvenile argues for the use of supervisory

authority to afford him relief."

. Justice Freeman also criticized the majority for

failing to address whether the Post-Conviction Hearing Act should "provide juveniles an avenue

for a collateral attack upon a trial court's finding of delinquency."

. He wrote that he

believed the "punitive nature" of proceedings under the Juvenile Court Act supported the

application of the Post-Conviction Hearing Act.

. 3 Because the majority declined to

3 Justice Freeman’s dissent noted that the supreme court has recognized that the Juvenile Court Act " 'now contains a purpose and policy section which represents a fundamental shift from the singular goal of rehabilitation to include the overriding concerns of protecting the public and holding juvenile offenders accountable for violations of the law.' "

at 374 (quoting In re A.G.,

, 317 (2001), citing 705 ILCS 405/5-101 (West 1998)). 15 1-14-3507

either address that issue or to exercise its supervisory authority, Justice Freeman remarked that

the majority "effectively denie[d] J.T. any avenue of redress for his claims." Id. at 378. Justice

Kilbride also wrote separately, concurring in the majority's holding that the appellate court

lacked jurisdiction but "agree[ing] with Justice Freeman that when juveniles have no other

avenue to meaningful review, this court should exercise its supervisory authority to provide

relief." Id. at 354 (Kilbride, J., concurring in part and dissenting in part).

¶ 35 The State urges us in this case to strictly adhere to the ruling in J.T. Since respondent did

not appeal from his guilty plea in the 2013 case, the majority's holding in J.T. conclusively

governs the issue of jurisdiction here. Thus, the State argues that we lack jurisdiction to consider

the challenged admonishments from respondent's 2013 case, which respondent now attempts to

raise in the context of this appeal of the 2014 case.

¶ 36 Respondent notes, however, that in a 1987 juvenile delinquency decision with a similar

procedural history to his case, our appellate court reviewed the admonishments given with a plea

in a prior proceeding that was later used as a basis to find the juvenile to be an habitual offender.

See In re J.W.,

(1987). In J.W., the juvenile appealed from an order

adjudicating him an habitual offender on the basis that "one of two prior findings of delinquency,

which formed the basis of this adjudication, was made without respondent being properly

advised of his constitutional rights."

. Specifically, although the determination of HJO

status in J.W. was made after a jury found that the juvenile had committed an armed robbery in

December 1983, the juvenile's appeal challenged the sufficiency of admonishments made in

connection with his April 1983 plea for a prior offense of burglary.

. The appellate

court found that the trial court's admonishments had been insufficient, as the trial court "failed to

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ascertain whether the respondent understood that he had a right against self-incrimination and a

right to confront his accusers" and that his plea waived those rights. See

.

¶ 37 The juvenile in J.W. argued that the "improperly obtained admission could not be used in

finding him to be a habitual juvenile offender" (id. at 829), relying on the United States Supreme

Court's decision in Baldasar v. Illinois,

(1980). Baldasar concerned an indigent

defendant who had been convicted of misdemeanor theft in a proceeding in which he was not

represented by counsel and had not waived his right to counsel.

. In a subsequent

prosecution on a second theft charge, the State introduced evidence of the prior conviction,

pursuant to a statute under which a second conviction for the same misdemeanor offense could

be punished as a felony.

(citing Ill. Rev. Stat. 1975, ch. 38, ¶ 16-1(e)(1)). The United States

Supreme Court in Baldasar reversed the defendant's felony conviction. The majority opinion did

not explain its reasoning, but stated that it was reversing "[f]or the reasons stated in the

concurring opinions" (id. at 224), and was followed by three separate concurrences discussing

why the sixth and fourteenth amendments to the United States Constitution precluded the use of

the first conviction to enhance the sentence for the second offense.

.

¶ 38 In J.W., the First District of our appellate court concluded that in light of Baldasar, the

juvenile's guilty plea without appropriate admonishments could not be used to support a

determination that he was an HJO. J.W.,

("[L]ike the uncounseled guilty

plea in Baldasar, this admission was not sufficiently reliable to permit its subsequent use in

establishing that the minor respondent was a habitual offender."). The appellate court thus

vacated the juvenile's adjudication as an HJO.

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¶ 39 Notably, in J.W. the issue of appellate jurisdiction was not explicitly discussed or argued

except for the following brief reference: "The State notes that the respondent failed to directly

challenge the prior adjudication by appealing it. But we are here concerned with the collateral

use of the adjudication."

The J.W. decision noted that in Baldasar there was "no indication"

that the defendant's first theft conviction was ever appealed, but that the United States Supreme

Court had nevertheless proceeded to conclude that the prior conviction was "too unreliable for

subsequent use as a sentence-enhancing factor."

¶ 40 In this case that we now are asked to decide, the State urges that our 1987 decision in

J.W. does not control the question of whether we have jurisdiction over respondent's challenge to

his 2013 plea admonishments. Instead, the State contends that our supreme court's subsequent

holding in J.T. established that "respondent cannot collaterally challenge a prior conviction that

he failed to properly challenge directly." The State argues that in light of J.T., our appellate

court’s holding in J.W. is now "untenable." In other words, although not explicitly stated, the

State suggests that our supreme court's ruling in J.T. has implicitly overruled J.W.

¶ 41 Our reading of J.T. leads us to the conclusion that we lack jurisdiction to review

respondent's 2013 guilty plea within the context of this current appeal of his 2014 conviction.

We note that J.T., decided in 2006, does not explicitly discuss or overrule the appellate court’s

1987 decision in J.W. Nonetheless, it is our view that the language of the jurisdictional holding

of J.T. is inconsistent with the exercise of appellate jurisdiction that occurred in J.W. 4 Our

4 Moreover, it is notable that the United States Supreme Court's Baldasar decision, which was relied upon in J.W., has since been explicitly overruled. See Nichols v. United States,

(1994) (holding that it is "consistent with the Sixth and Fourteenth Amendments" that an "uncounseled misdemeanor conviction, valid *** because no prison term was imposed, is also valid when used to enhance punishment at a subsequent conviction"). 18 1-14-3507

supreme court’s holding in J.T. is explicit that under Rule 606(a) (Ill. S. Ct. R. 606(a) (eff. Dec.

13, 2005)), the "timely filing of a notice of appeal" is the determinative "step which vests the

appellate court with jurisdiction." J.T.,

. J.T. made clear that the minor's failure

in that case to "file a timely notice of appeal from the order sentencing him to probation, a

written motion to either withdraw his [guilty] plea or reconsider his sentence, or a motion for

leave to file a late notice of appeal" was all that was necessary to foreclose appellate jurisdiction

over "any issues arising from either his guilty plea or his sentence."

. That broad

holding encompasses the facts of this case. Here, as in J.T., respondent received probation after

entering a guilty plea, but he did not move to withdraw the plea and failed to file a timely notice

of appeal from the sentence imposed on that plea. As in J.T., respondent only challenged the

guilty plea after he was faced with a new, harsher sentence for his subsequent conduct after the

plea. Adhering to our supreme court's holding in J.T., we conclude that respondent's failure to

appeal from his guilty plea and corresponding sentence in a timely manner deprives us of

jurisdiction to consider that conviction within the context of his appeal from the 2014 conviction.

¶ 42 Respondent argues that J.T. does not deprive us of jurisdiction because it is procedurally

distinguishable from his situation. Respondent emphasizes that he is not attempting to withdraw

or vacate his 2013 guilty plea and sentence. Instead, he makes the esoteric argument that he is

challenging the use of that guilty plea as a predicate offense to support his adjudication as an

HJO or a VJO. That is, he does not seek to eliminate the 2013 guilty plea altogether; rather, he

seeks to prevent its collateral use to enhance his sentence in this subsequent case resulting from

his conviction in the 2014 robbery offense. In our view, however, the broad holding of J.T.

precludes our ability to review the 2013 guilty plea, notwithstanding respondent's interesting

19 1-14-3507

procedural distinction. J.T. unequivocally held that the juvenile's failure to file a timely notice of

appeal deprived the appellate court of "jurisdiction to consider any issues arising from either his

guilty plea or his sentence." (Emphasis added.)

Respondent does not dispute that he failed

to file a timely notice of appeal from that plea, and his challenge to the sufficiency of the 2013

guilty plea is certainly an "issue arising from" that plea, whether raised in an attempt to vacate

the plea entirely or, as he argues, to preclude its use to support his adjudication as an HJO and a

VJO in the 2014 case which is the subject of this appeal.

¶ 43 As we conclude that our exercise of jurisdiction over the challenged admonishments

would be incompatible with our supreme court's holding in J.T., we are precluded from reaching

the merits of respondent's arguments regarding the claimed deficiencies in his 2013 guilty plea.

"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.' " In re Shermaine S.,

(quoting People v. Fountain,

). Under our supreme court's holding in J.T., respondent cannot seek to

activate this court's power to review the allegedly insufficient admonishments within the context

of his 2014 conviction. In other words, it is too late. We thus conclude that we lack jurisdiction,

in the context of this appeal, to review the sufficiency of the admonishments given at the time of

respondent's guilty plea in his prior case in 2013.

¶ 44 Although we are bound by the holding of J.T.'s majority opinion that deprives us of

appellate jurisdiction, we are mindful of the fairness concerns articulated in Justice Freeman's

dissent in J.T. and reiterated by respondent’s arguments in this appeal. Specifically, we

acknowledge that as a juvenile, respondent is unable to make use of the Post-Conviction Hearing

20 1-14-3507

Act (725 ILCS 5/122-1 et seq. (West 2012)) to obtain collateral review of claimed errors in his

2013 case. An adult criminal defendant would not have those restrictions. See In re Timothy P.,

(2009) ("[W]e are mindful that the Post-Conviction Hearing Act

[citation] has never been held to apply to juvenile proceedings, thereby potentially leaving the

juvenile without a remedy for his constitutional claims."). 5 Thus, juveniles in similar

circumstances who fail to file a timely notice of appeal (and thus lose the ability to invoke

appellate review pursuant to J.T.) face the risk of being wronged by insufficient admonishments

without any procedural remedy to seek review of the claimed error.

¶ 45 However, our supreme court in J.T. considered this very concern but did not find it

persuasive. The majority opinion in J.T. expressly noted the minor's argument that "because

juveniles have no right to postconviction relief," fairness supported permitting appellate

jurisdiction notwithstanding his failure to file a timely notice of appeal. J.T.,

.

Nonetheless, J.T. was unequivocal that it is the "timely filing of a notice of appeal *** which

vests the appellate court with jurisdiction" pursuant to Rule 606(a), and thus the minor's failure

to do so was dispositive in precluding appellate jurisdiction.

.

¶ 46 Our lack of appellate jurisdiction pursuant to J.T., combined with respondent's inability to

use the Post-Conviction Hearing Act, means that, in the words of Justice Freeman, "[t]he minor

respondent is left without remedy."

(Freeman, J., dissenting). Like Justice Freeman,

we note that we are also "troubled" that J.T.'s holding, combined with the inability of juveniles to

5 Timothy P. applied the "plain error doctrine" to review the sufficiency of admonishments, notwithstanding the State's argument that the juvenile had forfeited the claim. Id. at 101-02. In contrast, we lack jurisdiction to review the claimed errors in respondent's 2013 case and thus the plain error doctrine does not permit us to review the circumstances of the admonishments given in that case.

21 1-14-3507

seek collateral review, "effectively denies [respondent] any avenue of redress for his claims." Id.

at 378-79.

¶ 47 However, as urged by Justice Freeman's dissent in J.T., the supreme court could

nonetheless consider whether respondent's "status as a juvenile argues for the use of supervisory

authority to afford him relief" from the allegedly deficient admonishments given in his 2013

guilty plea. Id. at 372. As noted by Justice Freeman, in another juvenile case, the supreme court

declined to decide whether the Post-Conviction Hearing Act applied to juveniles but

"nonetheless fashioned a remedy for the minor by remanding for further proceedings in

compliance with Rule 604(d)." Id. at 377 (citing In re William M.,

(2003)).

¶ 48 The supreme court "will issue a supervisory order only if the normal appellate process

will not afford adequate relief and the dispute involves a matter important to the administration

of justice, or where intervention is necessary to keep an inferior court or tribunal from acting

beyond the scope of its authority." Id. at 347 (majority opinion). Respondent's case may very

well be one in which the supreme court determines that exercise of supervisory authority is

warranted, in order to afford respondent an avenue of relief from the claimed errors committed in

connection with his 2013 guilty plea.

¶ 49 In this regard, we note that the State has acknowledged that the trial court’s

admonishments did not inform respondent of the maximum potential period of commitment, an

apparent violation of the Juvenile Court Act. See 705 ILCS 405/5-605(2)(a) (West 2012). This

court has held that "[a]bsent a clear articulation by the circuit court of the maximum penalty that

might be imposed, we cannot conclude that respondent's guilty plea was made with full

knowledge of the potential consequences or that there was substantial compliance with" section

22 1-14-3507

5-605(a)(2)) of the Juvenile Court Act. In re Timothy P.,

. On this basis

or other alleged deficiencies in respondent's 2013 guilty plea, the supreme court could determine

that exercise of its supervisory authority is warranted to prevent respondent from being left

without a remedy. However, under our reading of J.T., this court lacks jurisdiction to afford

respondent any relief from the claimed errors accompanying his 2013 guilty plea.

¶ 50 Apart from the issue of jurisdiction, the State additionally argues that respondent

forfeited appellate review of any issue related to the alleged insufficiency of the admonishments

at respondent's 2013 guilty plea. The State also argues that, assuming we could reach the merits

of the issue, the trial court's admonishments were sufficient and that any purported error did not

prejudice respondent. Having discussed at length why this court lacks jurisdiction to consider

respondent's arguments regarding his 2013 guilty plea, we need not address these additional

arguments raised by the State.

¶ 51 In addition to his claims regarding the sufficiency of the 2013 guilty plea admonishments,

respondent also raises constitutional challenges to the statutory provisions mandating his

sentence of confinement until the age of 21 upon his adjudication as an HJO and a VJO. The

Juvenile Court Act provisions regarding HJO and VJO status require, in substantially identical

language, that once the court has found that the predicate offenses for HJO or VJO status have

been proven, the court shall commit the minor to the DOJJ until his 21st birthday. 705 ILCS

405/5-815, 5-820 (West 2012). Respondent argues that the mandatory nature of this sentence

violates the eighth amendment of the United States Constitution, as well as the proportionate

penalties clause of the Illinois Constitution, because it removes the trial court's discretion in

sentencing minors. However, this court has recently rejected identical constitutional challenges

23 1-14-3507

to the mandatory sentence for an HJO. See In re Shermaine S.,

; In re

A.P.,

. As set forth below, the reasoning of those decisions is

persuasive with respect to both the HJO and VJO statutory provisions and thus respondent's

constitutional challenges are unavailing.

¶ 52 At the outset, 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). In that decision, our supreme court

concluded that a juvenile adjudication of wardship was not criminal in nature and did not impose

"punishment" within the meaning of the eighth amendment and proportionate penalties clause.

However, even if those constitutional provisions did apply, our precedent nonetheless has

rejected respondent’s arguments.

¶ 53 Whether a statute is constitutional is a question of law, subject to de novo review.

Shermaine S.,

. "Statutes carry a strong presumption of

constitutionality" and "[i]f reasonably possible, this court will construe a statute so as to affirm

its constitutionality."

That is, "we will resolve any doubt as to the construction of a statute in

favor of its validity."

¶ 54 We first consider respondent's challenge to the HJO and VJO provisions under the eighth

amendment of the United States Constitution. "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."

¶ 17 (citing U.S. Const., amend. VIII). Respondent contends that the

24 1-14-3507

provisions of the Juvenile Court Act requiring a sentence of commitment to the DOJJ until the

age of 21 for an HJO or a VJO violate the eighth amendment, as they preclude the trial court

"from fashioning individualized sentences for individual minors" and deprives the court of the

"opportunity to consider the respondent's youth, his potential rehabilitation, circumstances of the

offense or other important factors."

¶ 55 However, our supreme court has explicitly held that the HJO statutory provision

mandating commitment until the age of 21 does not violate the eighth amendment. See People

ex rel. Carey v. Chrastka,

(1980). Chrastka noted that "[s]tate legislatures have

traditionally been allowed wide latitude in setting penalties for State crimes" and concluded that

"we do not believe that the disposition authorized here rises to the level of cruel and unusual

punishment by any stretch of the imagination."

. This court, in rejecting another

eighth amendment challenge to the HJO mandatory sentencing provision, has recently reaffirmed

that "we still find Chrastka to be applicable." A.P.,

(noting that

"we are bound to honor our supreme court's conclusion on an issue" if not revised by our

supreme court or overruled by the United States Supreme Court); see also Shermaine S.,

("Because it is still applicable, we must follow the holding in Chrastka

and find that Shermaine's commitment *** until the age of 21 does not violate the eighth

amendment.").

¶ 56 Respondent acknowledges our supreme court’s holding in Chrastka but argues that it is

"ripe for being overturned" in light of subsequent United States Supreme Court precedent.

Particularly, respondent relies on Miller v. Alabama,

,

(2012),

which held that imposition of mandatory life sentences without the possibility of parole for

25 1-14-3507

persons under the age of 18 at the time of their crimes violates the eighth amendment.

at ___,

. However, we have specifically rejected a juvenile's reliance on Miller to

challenge the continuing validity of Chrastka. See Shermaine S.,

; A.P.,

. In particular, we have found that Miller is

distinguishable because it involved defendants who committed crimes as juveniles but were

charged and convicted in the adult court systems. Id. ¶ 22. Moreover, we have noted that Miller

"did not hold that the eighth amendment prohibited any mandatory penalties for juveniles, only

mandatory natural life sentences without the possibility of parole." (Emphasis in original.) Id.

Thus, we have concluded that Miller is "factually distinguishable and does not support deviating

from precedent established in Chrastka, which, as an appellate court, we are required to follow."

Shermaine S.,

. In this case, respondent urges that both A.P. and

Shermaine S. were wrongly decided, but raises no new argument to warrant departing from those

decisions. Thus, we again conclude that Chrastka remains binding and reject respondent's eighth

amendment challenge to the HJO and VJO mandatory sentencing provisions.

¶ 57 Separately, respondent urges that, even if they do not violate the eighth amendment, the

mandatory sentencing provisions nonetheless violate the proportionate penalties clause of the

Illinois Constitution, which 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. Respondent contends that, "by emphasizing

rehabilitation, Illinois provides greater protection than the federal constitution." For this point,

respondent relies on our supreme court’s statement in the 2012 decision People v. Clemons that

"the limitation on penalties set forth in the second clause of article I, section 11, which focuses

26 1-14-3507

on the objective of rehabilitation, went beyond the framers' understanding of the eighth

amendment and is not synonymous with that provision." People v. Clemons,

.

¶ 58 However, our supreme court has more recently held that "the Illinois proportionate

penalties clause is co-extensive with the eighth amendment's cruel and unusual punishment

clause." People v. Patterson,

(citing In re Rodney H.,

(2006)). Under that proposition, our rejection of respondent's eighth amendment challenge

pursuant to our supreme court's decision in Chrastka would likewise compel rejection of his

proportionate penalties argument. In fact, we recently applied that logic in rejecting a

proportionate penalties challenge: "[B]ecause in Chrastka, our supreme court held that

sentencing a habitual juvenile offender to a mandatory minimum sentence *** 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." Shermaine S.,

.

¶ 59 Respondent urges that our supreme court's statement that the proportionate penalties

clause is "co-extensive" with the eighth amendment (Patterson,

) should

be disregarded as an "outlier" that cannot be reconciled with a long history of "cases recognizing

the unique importance of rehabilitation, and the rehabilitation of youth in particular." However,

even before our supreme court decided Patterson, we had independently concluded that the

mandatory sentencing provision of the HJO statute did not violate the proportionate penalties

clause. See A.P.,

. In A.P., we reasoned that "[t]he

legislature is entitled to find that, in the case of a recidivist, violent offender such as respondent,

27 1-14-3507

there are no mitigating circumstances to allow for a lesser penalty." Id. ¶ 23 (noting our supreme

court's statement in People v. Taylor,

(1984), that "[t]he rehabilitative

objective of [the proportionate penalties clause] should not and does not prevent the legislature

from fixing mandatory minimum penalties where it has been determined that no set of mitigating

circumstances" would justify a lesser sentence).

¶ 60 We note that respondent's proportionate penalties challenge relies heavily on our supreme

court's decision in People v. Miller,

(2002), which recognized the "long-standing

distinction made in this state between adult and juvenile offenders" and that "young defendants

have greater rehabilitative potential."

. Miller held that a mandatory life sentence

was unconstitutional when applied to a 15-year-old offender convicted on two counts of first

degree murder on an accountability theory, as it eliminated the sentencing court's ability to

consider factors such as the defendant's age or degree of participation in the crime.

.

Nonetheless, in Shermaine S. we held that Miller is distinguishable from the HJO sentencing

provision, and that "reliance on [Miller] to support [a] claim of a violation of the proportionate

penalties clause is misplaced." Shermaine S.,

(noting that the

defendant in Miller was tried as an adult and was subject to a natural life sentence). As we

concluded in Shermaine S., our supreme court's decision in Miller is distinguishable from

respondent's case and thus does not undermine the constitutionality of the HJO and VJO

sentencing provisions.

¶ 61 We recognize that, although our decisions in A.P. and Shermaine S. concerned challenges

only to the HJO mandatory sentencing provision in section 5-815 of the Juvenile Court Act,

respondent here challenges both that provision and its VJO counterpart in section 5-820 of the

28 1-14-3507

Juvenile Court Act. See 705 ILCS 405/5-815, 5-820 (West 2012). However, respondent's

arguments are identical with respect to both provisions, and he has offered no persuasive reason

to distinguish his case from the identical eighth amendment and proportionate penalties

challenges that our court has rejected with respect to the HJO statutory provision mandating

commitment until the age of 21. We see no reason why our decisions rejecting the same

challenges to the HJO provision do not apply with equal force to the equivalent VJO provision.

Accordingly, we conclude that respondent's arguments with respect to both the HJO and VJO

mandatory sentencing provisions of the Juvenile Court Act must fail.

¶ 62 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

¶ 63 Affirmed.

¶ 64 JUSTICE CONNORS, specially concurring:

¶ 65 I concur with the majority that pursuant to our supreme court's decision in J.T., we are

compelled to find that we lack jurisdiction to afford respondent relief from the claimed errors

accompanying his 2013 guilty plea. However, I write separately to express my concerns

regarding the analysis in J.T., and its implications.

¶ 66 Our supreme court stated in J.T., a case that specifically analyzed proper admonishments

of a juvenile, that the appellate process could have provided the defendant adequate relief had he

availed himself of it, and that the case did not "involve an issue important to the administration

of justice." J.T.,

. The court found that having chosen not to file a timely notice

of appeal from the order in question, a written motion to either withdraw his plea or reconsider

his sentence or a motion for leave to file a late notice of appeal, the appellate court lost

jurisdiction to consider any issues arising from his guilty plea or his sentence, and left the

29 1-14-3507

defendant "in no different position than any other defendant who chooses not to file an appeal."

I disagree with these sentiments.

¶ 67 First, I wholeheartedly believe that this issue of properly admonishing a juvenile is

important to the administration of justice. An incarcerated juvenile, whose liberty has been

restrained, should have access to the same remedies and opportunities for justice as an adult

offender facing similar circumstances. As Justice Freeman stated in his dissent in J.T.:

"Juveniles are a vulnerable population. As the United

States Supreme Court observed in Eddings v. Oklahoma, [citation],

'youth is more than a chronological fact. It is a time and

condition of life when a person may be most susceptible to

influence and to psychological damage. Our history is replete with

laws and judicial recognition that minors, especially in their earlier

years, generally are less mature and responsible than adults.' "

(Freeman, J., dissenting) (quoting Eddings v. Oklahome,

(1982)).

¶ 68 Keeping the vulnerability of juveniles in mind, significant changes were made to the

Juvenile Court Act, and as our supreme court noted in In re A.G.,

(2001),

now "virtually all of the constitutional requirements of a criminal trial have been introduced into

juvenile delinquency proceedings." Our supreme court has also noted that an "incarcerated

juvenile's liberty is restrained just as effectively as that of an adult offender." In re B.L.S.,

(2002).

30 1-14-3507

¶ 69 As things stand after the decision in J.T., if a juvenile defendant who was not properly

admonished fails to file a timely notice of appeal from a guilty plea and sentence, a written

motion to either withdraw his plea or reconsider his sentence, or a motion for leave to file a late

notice of appeal, the appellate court loses jurisdiction to consider any issues arising from his

guilty plea or his sentence. This does not, as the majority opinion states in J.T., leave the

defendant "in no different position than any other defendant who chooses not to file an appeal."

J.T.,

. Rather, an adult defendant in the same position has the option of filing a

petition under the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2012)).

However, our supreme court has refused to analyze whether the Post-Conviction Hearing Act

applies to juveniles. See J.T.,

(declining to address the issue of whether

juveniles can seek relief under the Post-Conviction Hearing Act because the "parties offer[ed]

minimal argument on this issue"); In re William M.,

(2003) (the right of a juvenile

to file a petition under the Post-Conviction Hearing act has not been established); In re A.G.,

(this court has not reviewed holdings of the appellate court concluding that

relief from juvenile proceedings is unavailable under the Post-Conviction Hearing Act).

¶ 70 It seems fundamentally unfair to me that an incarcerated juvenile who was not properly

admonished does not have the same remedies available to him or her as an incarcerated adult

who was not properly admonished, despite our supreme court's expression that "virtually all of

the constitutional requirements of a criminal trial have been introduced into juvenile delinquency

proceedings." In re A.G.,

. I agree with Justice Freeman's opinion that "the

changed climate in the treatment of minors in the juvenile court system advocates strongly for

31 1-14-3507

the application of the Post-Conviction Hearing Act." J.T.,

(Freeman, J.,

dissenting).

¶ 71 Accordingly, while I agree with the majority's opinion that in light of our supreme court's

finding in J.T., we lack jurisdiction to hear the issue in this case, I look forward to guidance from

our supreme court regarding these important issues concerning juvenile justice.

32