THIRD DIVISION September 30, 2020

No. 1-18-1012

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 16 CR 15706 ) ORLANDAS MARTIN, ) Honorable ) Dennis J. Porter, Defendant-Appellant. ) Judge Presiding. ______________________________________________________________________________

PRESIDING JUSTICE HOWSE delivered the judgment of the court. Justices Ellis and Burke concurred in the judgment.

ORDER

¶1 Held: The judgment of the circuit court of Cook County finding defendant was eligible for Class X sentencing is vacated; a prior felony offense was committed when defendant was 17 years of age, therefore, it was not a qualifying conviction for Class X sentencing under section 5-4.5-95(b) of the Unified Code of Corrections (Code).

¶2 Defendant was convicted of possession of a controlled substance with intent to deliver

stemming from events which occurred on September 23, 2016. The trial court found defendant

was eligible for Class X sentencing based on his prior felony convictions, including two prior

convictions for possession of a controlled substance when he was 17 years of age. Defendant

was sentenced to 6 years’ imprisonment followed by three years of mandatory supervised

release. On appeal defendant argues the trial court should not have considered his 2011 1-18-1012

convictions as qualifying him for Class X sentencing because he was 17 years old when he was

convicted and, had he committed those offenses at the time of this current offense, he would

have been adjudicated delinquent as a juvenile, not convicted as an adult. Defendant asks this

court to vacate his Class X sentence and correct the mittimus to show a conviction of a Class 1

felony with a sentence of 2 years mandatory supervised release.

¶3 The sentencing issue raised by defendant in this case was raised in this court’s recent

decision in People v. Miles,

. We will follow the well-reasoned

decision in Miles to resolve the issues in this case. Therefore, we vacate defendant’s Class X

sentence, correct the sentence to reflect 2 years mandatory supervised release based on Class 1

sentencing, and direct the clerk of the circuit court to correct the mittimus accordingly.

¶4 BACKGROUND

¶5 Following a bench trial, defendant, Orlandas Martin, was found guilty of possession of a

controlled substance with intent to deliver more than one gram but not more than fifteen grams

of cocaine, a Class 1 offense.

¶6 Defendant’s conviction stems from events which occurred on September 23, 2016 when

defendant was observed by Chicago police officers engaging in three separate transactions in

which money was exchanged for objects defendant removed from his pant’s pocket. When

officers approached him, defendant fled. A chase ensued during which defendant was observed

by officers removing a clear bag from his pocket which he threw into an open window of a

parked vehicle. Defendant was subsequently apprehended. The bag defendant threw was also

recovered and found to contain 1.2 grams of cocaine. Defendant was found guilty of possession

of a control substance with intent to deliver.

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¶7 At sentencing, the parties agreed defendant’s criminal background qualified him for Class

X sentencing. Defendant’s presentence investigation report indicated that on July 11, 2011,

when defendant was 17 years old, he was convicted of a Class 1 felony—delivery of a controlled

substance in case number 11 CR 5641—and a second Class 1 felony—delivery of a controlled

substance in case number 11 CR 7935. The report further indicated that on April 11, 2013, defendant

was convicted of a Class 1 felony and a Class 2 felony in two separate drug cases.

¶8 Based on this criminal history, the trial court sentenced defendant as a Class X offender and

sentenced him to the minimum term of 6 years in the Illinois Department of Corrections followed by

a three year period of supervised release mandated for individuals sentenced as Class X offenders.

Defendant did not contest being sentenced as a Class X offender in the trial court.

¶9 This appeal followed.

¶ 10 ANALYSIS

¶ 11 Defendant appeals his sentence under the Class X sentencing statute. He contends his

2011 conviction was not a qualifying conviction for purposes of Class X sentencing under

section 5-4.5-95(b) of the Code (730 ILCS 5-4.5-95(b) (West 2018)). Defendant argues because

he was 17 years old when his 2011 drug offenses were committed his convictions for these Class

1 felonies would, at the time of his 2016 offense, fall under the exclusive jurisdiction of the

juvenile court. Therefore, his 2011 offenses would have resulted in a delinquency finding and

not a conviction as required for Class X sentencing. Alternatively, defendant argues the Class X

sentencing statute is ambiguous and should be interpreted under the rule of lenity and with

regard to the legislative history relevant to the statutes at issue to find that a conviction based on

juvenile conduct does not trigger mandatory Class X sentencing. As stated earlier, many of the

issues raised in this case were decided in Miles which we will follow.

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¶ 12 Plain-Error Doctrine

¶ 13 As acknowledged by defendant, his arguments on appeal were not properly preserved.

However, defendant argues his claims are reviewable under the second prong of the plain-error

doctrine. We agree with defendant.

¶ 14 “The plain-error doctrine bypasses normal forfeiture principles and allows a reviewing

court to consider unpreserved error when either (1) the evidence is close, regardless of the

seriousness of the error, or (2) the error is serious, regardless of the closeness of the evidence.”

(Internal quotation marks omitted.) People v. Glasper,

(2009) quoting

People v. Herron,

(2005). Plain error will only be found in exceptional

circumstances in which “the error seriously affects the fairness, integrity, or public reputation of

judicial proceedings.” (Internal quotation marks omitted.) People v. Sharp,

(2009).

¶ 15 In this case defendant argues his sentence is not authorized by statute. “A sentence that is

not statutorily authorized affects defendant’s substantial rights and is reviewable as second prong

plain error.” Miles,

(excusing forfeiture under second prong

plain-error where the defendant was improperly subject to Class X sentencing based on a non-

qualifying prior offense). We will follow Miles and review defendant’s claims as second prong

plain-error.

¶ 16 Class X Sentencing and Section 5-120 of the Juvenile Court Act

¶ 17 At issue here is section 5-4.5-95(b) of the Code entitled “General Recidivism Provisions”

which governs when a defendant is to be sentenced as a Class X offender. Specifically, section

5-4.5-95(b) states as follows:

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“When a defendant, over the age of 21 years, is convicted of a Class 1 or Class 2

felony, except for an offense listed in subsection (c) of this Section, after having

twice been convicted in any state or federal court of an offense that contains the

same elements as an offense now (the date the Class 1 or Class 2 felony was

committed) classified in Illinois as a Class 2 or greater Class felony, except for an

offense listed in subsection (c) of this Section, and those charges are separately

brought and tried and arise out of different series of acts, that defendant shall be

sentenced as a Class X offender. This subsection does not apply unless:

(1) the first felony was committed after February 1, 1978 (the effective

date of Public Act 80-1099);

(2) the second felony was committed after conviction on the first; and

(3) the third felony was committed after conviction on the second.” 730

ILCS 5/5-4.5-95(b) (West 2018).

¶ 18 Also relevant is the 2014 amendment to section 5-120 of the Act entitled “Exclusive

Jurisdiction” which raised the age of the juvenile court’s exclusive jurisdiction from minors 17

and older to minors under the age of 18. See 705 ILCS 405/5-120 (West 2010); see also 705

ILCS 405/5-120 (West 2014). Section 5-120 of the Act, as amended, provides as follows:

“Exclusive jurisdiction. Proceedings may be instituted under the

provisions of this Article concerning any minor who prior to his or her 18th

birthday has violated or attempted to violate, regardless of where the act occurred,

any federal, State, county or municipal law or ordinance. Except as provided in

Sections 5-125, 5-130, 5-805, and 5-810 of this Article, no minor who was under

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18 years of age at the time of the alleged offense may be prosecuted under the

criminal laws of this State.

The changes made to this Section by this amendatory Act of the 98th

General Assembly apply to violations or attempted violations committed on or

after the effective date of this amendatory Act.” 705 ILCS 405/5-120 (West

2016). 1

¶ 19 We agree with the Miles court’s interpretation of the statutes at issue and follow their

reasoning in our resolution of this appeal.

¶ 20 In Miles, the defendant was convicted and sentenced as a Class X offender. Miles,

. One of the two prior convictions used to impose Class X sentencing

was a 2006 conviction for an offense committed in 2005 when the defendant was 15 years old.

Id. at ¶ 3. On appeal, the defendant argued this conviction did not qualify as a prior conviction

under section 5-4.5-95(b) of the Code qualifying him for Class X sentencing. Id. at ¶ 1. The

defendant conceded he had one qualifying prior felony conviction from 2013 and did not contest

that his 2006 conviction, at the time of the conviction, was classified as a Class 2 or greater

felony conviction. Id. at ¶ 6.

¶ 21 However, the defendant argued amendments to the Act since his 2006 conviction had the

effect of excluding a 15-year old, as he was at the time of his prior offense, from prosecution in

adult court. Id. at ¶ 2. Therefore, had the offense been committed at the time of the defendant’s

1 We note that neither party argues that any of the exceptions to the juvenile court’s exclusive jurisdiction referenced in section 5-120 of the Act, 705 ILCS 405/5-120 (West 2016), are applicable in the instant case.

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2016 offense at issue, the 2006 conviction stemming from his 2005 offense would have been

heard in juvenile court rather than adult court resulting in an adjudication of delinquency not a

conviction as required to trigger mandatory Class X sentencing under the Code. Id. at ¶¶ 6-7.

The Miles court agreed. Id. at ¶ 11.

¶ 22 In construing the Code, the Miles court found the language in section 5-4.5-95(b)

unambiguous and thus, declined to consider its legislative history. Id. at ¶ 10. The court focused

on the statute’s plain language requiring a defendant to have “twice been convicted *** of an

offense that contains the same elements as an offense now (the date the Class 1 or Class 2 felony

was committed) classified in Illinois as a Class 2 or greater Class felony” before Class X

sentencing would be triggered. (Emphasis added.) Id. at ¶ 11.

¶ 23 The court concluded that the relevant inquiry was how the defendant’s 2006 prior

conviction would be treated had he committed the offense on the same date as his 2016 offense

for which he was being sentenced. Id. Due to the 2014 amendment to section 5-120 of the Act

and the 2016 amendment to section 5-130 of the Act, the defendant’s “2006 conviction, had it

been committed in 2016, would have been resolved with delinquency proceedings in juvenile

court rather than criminal proceedings” in adult court. Id. The court further concluded that

because defendant’s 2006 conviction would instead be a juvenile court delinquency adjudication

it would not be a qualifying offense for Class X sentencing. Id.

¶ 24 Here the court explained that the plain language of the statute requiring two prior

“convictions” before Class X sentencing would be employed did not include prior juvenile

delinquency adjudications citing our supreme court’s observation in People v. Taylor,

(2006), that “in absence of a statute expressly defining a juvenile adjudication as a

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conviction, Illinois courts have consistently held that juvenile adjudications do not constitute

convictions.” Miles,

.

¶ 25 The court distinguished People v. Jones,

; Apprendi v. New Jersey,

(2002); People v. Banks,

(1991); and People v. Bryant,

(1996)—all cases cited by the State in this appeal.

¶ 26 With respect to Jones, the Miles court explained that the statute at issue there involved

extended-term sentencing pursuant to 730 ILC 5/5-5-3.2(b)(7) (West 2016) which expressly

provides for the consideration of prior juvenile adjudications as a basis for imposing such

extended-term sentencing. Miles,

; see also 730 ILC 5/5-5-

3.2(b)(7) (West 2016) (noting section 5-5-3.2(b)(7)’s language specifically allowing the trial

court, in certain circumstances, to consider when a defendant “has been previously adjudicated a

delinquent minor under the Juvenile Court Act of 1987 for an act that if committed by an adult

would be a Class X or Class 1 felony” as a reason to impose an extended term sentence). The

court pointed out that section 5-4.5-95(b), unliked 5-5-3.2(b)(7), is silent with regard to

adjudications of delinquency and found that difference dispositive based on People v. Bailey,

, which explained that “ ‘When the legislature decides to

authorize certain sentencing enhancement provisions in some cases, while declining to impose

similar limits in other provisions within the same sentencing code, it indicates that different

results were intended.’ ” Miles,

. For the same reasons, the

Miles court distinguished Apprendi reasoning that under Taylor, “a juvenile adjudication is not a

criminal conviction in Illinois, except where specifically provided by law” and while “Apprendi

may indeed permit the use of a juvenile adjudication to extend a sentence without proving that

adjudication beyond a reasonable doubt” “this is only because subsection 5-5-3.2(b)(7)

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specifically allows prior juvenile adjudications to be considered as grounds for imposing an

extended-term sentence” as emphasized by the legislature’s decision to include such language in

section 5-5-3.2(b) of the Code but not in section 5-4.5-95(b) of the Code. Id. at ¶ 17.

¶ 27 The Miles court also distinguished Banks and Bryant both dealing with habitual criminal

adjudications under the Habitual Criminal Act (HCA) which states that a defendant would be

adjudicated a habitual criminal where they had been “twice convicted in any state or federal

court of an offense that contains the same elements as an offense now classified in Illinois as a

Class X felony, criminal sexual assault or first degree murder[.]” Id. at ¶¶ 19-20. The prior

convictions forming the basis for the habitual criminal adjudications were, at least in part, due to

prior convictions when the defendants were 15 in Banks and 16 in Bryant. Id. There the “courts

were presented with arguments focusing solely on the defendants’ status as minors at the time

they committed their prior armed robberies, and the decision in both cases rested on the Banks

court’s finding that nothing in the Juvenile Court Act or Criminal Code of 1961 indicated that

criminal convictions of a minor should be treated any differently than criminal convictions of an

adult.” Id. at ¶ 21.

¶ 28 The Miles court explained that unlike the defendants in Banks and Bryant the defendant’s

arguments in Miles focused on age and the legislature’s 2016 amendment to section 5-130 of the

Act giving juvenile court’s exclusive jurisdiction over minors charged with armed robbery or

aggravated vehicular hijacking where such minors would previously have been disqualified from

juvenile jurisdiction. Id. The Miles court reasoned “[t]his amendment provided some

indication—absent at the time Banks and Bryant were decided—that the legislature intended that

minors who commit armed robbery or aggravated vehicular hijacking should be treated different

than adults charged with those crimes.” Id.

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¶ 29 While the 2016 amendment to section 5-130 of the Act are not relevant here, we believe

the reasoning remains the same by virtue of the 2014 amendment to section 5-120 of the Act

which also postdate Banks and Bryant and similarly provides indication that the legislature

intended minors 17 and older, but under age 18 charged with crimes such as delivery of a

controlled substance to be treated differently than adults where such juveniles would now fall

exclusively under the exclusive jurisdiction of the juvenile courts where they previously would

have been disqualified from the juvenile court’s jurisdiction as was the case for defendant here.

See 705 ILCS 405/5-120 (West 2010); see also 705 ILCS 405/5-120 (West 2016).

¶ 30 The State contends this court’s decision in Miles directly conflicts with the Illinois Supreme

Court’s decision in Fitzsimmons v. Norgle,

(1984), and cannot be

reconciled with the court’s decision in People v. Richardson,

, and People v. Hunter,

, ¶ 43. We disagree.

¶ 31 As noted above, our supreme court in Taylor declined to “find a juvenile adjudication to be a

conviction[.]” Taylor,

. In doing so, the Taylor court specifically distinguished its

finding in various prior cases including Fitzsimmons stating,

“None of the *** cases hold that a juvenile adjudication is tantamount to a

‘conviction’ in any context, nor do any of the cases even consider the question.”

.

¶ 32 We note that even if Fitzsimmons could not be distinguished from Taylor, the later decided

supreme court’s decision in Taylor is controlling. See Bates v. Sandy,

(1888)

(holding that where our supreme court cases are in conflict, it is the appellate court’s duty to

conform to the latest decision).

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¶ 33 Notwithstanding, Fitzsimmons is not contrary to the reasoning in Miles as Fitzsimmons

involved a juvenile tried in adult court resulting in an adult court conviction. Fitzsimmons,

. This is in contrast to Miles and defendant here, where both juveniles were

convicted as juveniles in adult court prior to amendments to the Act, but due to those

amendments enacted since their convictions but prior to the time of their offenses at issue, would

have, if committed at the time of their offenses at issue, resulted in delinquency adjudications in

juvenile court rather than convictions in adult court. Section 5-4.5-95(b) of the Code requires

that we look to the time of the offense for which a defendant is being sentenced to determine if

Class X sentencing is appropriate. At the relevant time, defendant’s prior offense would have

been addressed in juvenile court resulting in a delinquency adjudication. Taylor makes clear that

such adjudications are not convictions as would be required to trigger Class X sentencing under

the Code. See 730 ILCS 5/5-4.5-95(b) (West 2018); see also Taylor,

.

¶ 34 As to Richardson and Hunter, we note that both cases dealt with the question of whether the

amendments to sections 5-120 and 5-130 of the Act applied retroactively. Richardson,

; Hunter,

. That issue has no bearing on our ruling here. Instead, at

issue is the interpretation of section 5-4.5-95(b) of the Code. The only reason the amendments to

the Act come into play is because section 5-4.5-95(b) of the Code asks that we assess defendant’s

prior convictions as if they had occurred at the time of the offense on which he is being

sentenced—2016 rather than 2011. We do not retroactively apply section 5-120 of the Act, we

merely imagine the offense had occurred in 2016 as required by section 5-4.5-95(b) of the Code.

See 730 ILCS 5/5-4.5-95(b) (West 2018).

¶ 35 Here, defendant’s 2011 convictions for delivery of a controlled substance—offenses

committed when he was 17 years old—would, if adjudicated at the time of his 2016 offense at

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issue, be resolved in delinquency proceedings before the juvenile court leading to juvenile

adjudications rather than convictions. See 705 ILCS 405/5-120 (West 2016); see also Taylor,

(holding a juvenile adjudication is not a conviction). Accordingly, pursuant to

section 5-4.5-95(b) of the Code, defendant’s 2011 convictions are not qualifying prior offenses

for Class X sentencing.

¶ 36 Defendant’s only two remaining convictions for delivery of a controlled substance and

possession of a controlled substance with intent to deliver occurred in 2013. These convictions,

however, constitute only one qualifying conviction because, pursuant to 5-4.5-95(b)(2) of the

Code, the second felony has to be committed after a conviction on the first. See 730 ILCS 5/5-

4.5-95(b)(2) (West 2018) (stating section 5-4.5-95(b)(2) of the Code “does not apply unless: ***

the second felony was committed after conviction on the first”). The parties do not dispute that

defendant’s 2013 convictions occurred on the same day. Accordingly, the requirement the

felony be “committed after conviction on the first” cannot be met. Therefore, defendant’s Class

X sentencing was not statutorily authorized and was in error.

¶ 37 Having found error occurred, we provide defendant relief pursuant to the second prong of

the plain-error doctrine finding his unauthorized Class X sentence affected defendant’s

substantial rights. See Miles,

(excusing forfeiture under second

prong plain-error where the defendant was improperly subject to Class X sentencing based on a

non-qualifying prior offense).

¶ 38 The Illinois Department of Corrections website indicates defendant’s current status is

paroled on August 15, 2019 with a discharge date of August 15, 2022. As relief, defendant asks

that “this Court correct the mittimus in this case to reflect a Class 1, rather than a Class X felony

sentence, and vacate his term of mandatory supervised release of 3 years and impose a term of 2

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years of mandatory supervised release consistent with the Class 1 sentencing range per 730 ILCS

5/5-4.5-3[0].” The State does not address defendant’s argument here and only asks that

defendant’s Class X sentence be affirmed. We exercise our authority under Illinois Supreme

Court Rule 615(b)(4), Ill. S. Ct. R. 615(b)(4) (eff. Jan. 1, 1967), and vacate defendant’s Class X

felony sentence and direct the clerk of the circuit court to correct the mittimus to reflect a Class 1

felony sentence with a two year term of mandatory supervised release consistent with Class 1

sentencing ranges.

¶ 39 In light of our conclusion here, we need not reach defendant’s alternative arguments on

appeal.

¶ 40 CONCLUSION

¶ 41 For the foregoing reasons, we vacate defendant’s sentence and impose a term of 2 years

mandatory supervised release consistent with the Class 1 sentencing and direct the clerk of the

circuit court to correct the mittimus to reflect defendant’s conviction as a Class 1 felony with two

years mandatory supervised release.

¶ 42 Sentence vacated, defendant resentenced, mittimus corrected.

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