People v. Patterson

2014 IL 115102

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

(Docket No. 115102)

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. RONALD

PATTERSON, Appellee.

Opinion filed October 17, 2014.

JUSTICE KILBRIDE delivered the judgment of the court, with opinion.

Chief Justice Garman and Justices Freeman, Thomas, Karmeier, and Burke

concurred in the judgment and opinion.

Justice Theis dissented, with opinion.

OPINION

¶1 Defendant was 15 years old when he was charged with three counts of aggravated

criminal sexual assault. Pursuant to the Illinois automatic transfer statute (705 ILCS

405/5-130 (West 2008)), his case was transferred from juvenile court to criminal court,

where defendant was tried as an adult, convicted by a jury of all three counts, and

sentenced to a total of 36 years in prison. On appeal, the appellate court reversed

defendant’s convictions and remanded the cause for a new trial, holding that the circuit

court of Cook County had erred by admitting defendant’s confession. 2012 IL App

(1st) 101573. The court also concluded that evidence of the victim’s sexual history was

admissible on remand under the “constitutional necessity” exception to the state rape

shield statute (725 ILCS 5/115-7(a) (West 2008)).

¶2 Before this court, the State argues that the appellate court erred by excluding

defendant’s confession and finding that evidence of the victim’s sexual past was

admissible on remand. Defendant filed a cross-appeal, contending that his confession

was also inadmissible because his trial counsel provided ineffective assistance during

the pretrial suppression hearing, an issue not reached by the appellate court. Defendant

also challenges the constitutionality of the automatic transfer provision (705 ILCS

405/5-130 (West 2008)) and asserts that his sentence was excessive. We reverse the

appellate court’s exclusion of defendant’s confession and determination that evidence

of the victim’s sexual history is admissible under an exception to the rape shield statute,

reject his ineffective assistance claim, and uphold the constitutionality of the automatic

transfer statute. Finally, we remand the cause to the appellate court for its initial

consideration of defendant’s excessive-sentence claim.

¶3 I. BACKGROUND

¶4 Defendant Ronald Patterson was a 15-year-old ward of the State of Illinois living in

a residential treatment facility when he committed a violent sexual assault on a

25-year-old staff member, E.C. While E.C. was driving defendant home from a

weekend family visit, he forced her to pull the facility van into a deserted parking lot

off the highway, where the assault occurred. After the assault, the victim returned to the

facility with defendant. Once defendant was secured in his unit, the victim immediately

reported the attack, and the police were called.

¶5 Defendant was charged in Cook County circuit court with three counts of

aggravated criminal sexual assault. His case was automatically transferred to criminal

court, and he was tried as an adult, as required by statute (705 ILCS 405/5-130 (West

2008)). On defense counsel’s motion, a fitness examination and hearing were held. At

the hearing, both parties stipulated to the testimony of the examining psychiatrist, Dr.

Nishad Nadkarni. Dr. Nadkarni found that defendant understood the charges against

him, the court proceedings, and the role of court personnel. Dr. Nadkarni concluded

that defendant was sane when the offenses were committed and did not suffer from a

mental impairment limiting his ability to appreciate the criminality of his actions or to

understand his Miranda rights. Defendant was able to define each of those rights

accurately and was able to assist his trial counsel and behave appropriately in court.

The trial court subsequently found defendant fit to stand trial without medication.

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¶6 Defendant next filed a motion to suppress his inculpatory statement to the police,

arguing that the police youth officer did not contact defendant’s legal guardian, the

Illinois Department of Children and Family Services (DCFS), before he was

interviewed and did not “affirmatively” protect his rights. The motion also claimed his

statement was involuntary because he was a special education student with limited

reading skills and comprehension who was not given his Miranda rights before

questioning. The motion did not allege, and defense counsel expressly denied, “any

type of coercion or duress” by the police.

¶7 At the suppression hearing, several witnesses testified, including the residential

treatment facility director, Stephen Kehoe. Kehoe stated that he spoke to two or three

police officers the night defendant was taken into custody at the facility at

approximately 8:30 p.m. on Sunday, December 14, 2008. Kehoe could not remember

whether any of the officers asked him for permission to speak to defendant, and he

denied possessing sufficient authority to grant permission, asserting that DCFS alone

retained that authority. Kehoe did recall, however, officers obtaining the name and

phone number of defendant’s DCFS caseworker the night defendant was taken into

custody.

¶8 Detective Joe Kaminski also testified at the suppression hearing. He stated that he

was the youth officer assigned to defendant’s case and knew defendant was a resident

of the treatment facility. After arriving at the police station on the night defendant was

taken into custody, Detective Kaminski briefly spoke to E.C. before talking to

defendant. Kaminski inquired about defendant’s grade in school but did not inquire

about his participation in special education classes. Detective Kaminski stated he called

both Kehoe and defendant’s caseworker shortly before 10 p.m. to notify them that

defendant was at the Schaumburg police station and was going to be questioned about

the assault. When they could not be reached, Kaminski left voicemail messages for

them. Defendant’s caseworker did not return his call for two days. Nonetheless,

Kaminski confirmed with another officer prior to the start of questioning that Kehoe

had been notified that defendant had been taken to the police station and that Kehoe had

given the police permission to speak to defendant. Detective Kaminski testified at trial

that after defendant was questioned he again called Kehoe, who confirmed that the

police had permission to speak with defendant as well as to search the facility’s van for

evidence.

¶9 Kaminski described the role of a youth officer as advising defendant of his rights

and ensuring his understanding, as well as answering defendant’s questions. Before the

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police interview, Detective Kaminski explained to defendant why he was at the station

and read his Miranda rights to him from a preprinted form at about 10 p.m., asking

defendant to explain each right in his own words. Defendant stated that he understood

his rights and accurately described each of them. The officer had defendant read the

form waiving his rights aloud, initial each sentence, and sign the form. The record does

not indicate that defendant either asked to speak to another adult or made any other

request prior to the start of questioning.

¶ 10 A second detective, John Atamian, then interviewed defendant for about 45

minutes about the alleged assault. Although Detective Kaminski remained in the room

during questioning, he did not participate. After the interview was over and defendant’s

statement was typed, it was read to defendant, who did not make any corrections.

Defendant then read the statement aloud and signed it at 11:15 p.m.

¶ 11 Defendant’s account of the events differed significantly. According to him, after he

had been at the Schaumburg Police Station for 30 to 45 minutes, the youth officer asked

him if he needed anything and questioning began shortly thereafter. He claimed he did

not receive any Miranda warnings until the interview was over and he had signed a

typewritten statement. He also asserted he did not read the statement before signing it.

During the suppression hearing, defendant did not claim that he had been threatened,

mistreated, or coerced by the police, that he failed to understand the interrogation

process, that he had asked to speak to another adult, or that he was a special education

student with trouble reading and writing.

¶ 12 The trial court denied defendant’s motion to suppress his statement, finding both

that the youth officer had fulfilled his duty and that it was reasonable for the police to

notify the residential facility director of defendant’s arrest as he was a State ward and

the facility “has been run under the supervision of [DCFS]. So it would be reasonable

to assume that the director has some authority to act on behalf of DCFS. Particularly

over people that are residents in his residence hall that he directs.” The judge also

provided general remarks addressing his observations during the hearing, noting that it

was “curious” that Kehoe’s counsel attempted, but was not permitted, to sit in the

witness box with him and describing Kehoe’s inability to recall whether he gave the

police permission to interview defendant as “interesting.” In addition, the judge noted

that Kehoe never denied giving his permission despite admitting that he had talked to

three different officers that night.

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¶ 13 The trial court expressly found Detective Kaminski’s testimony to be “very

credible” and emphasized that he had not participated in defendant’s questioning, while

rejecting as “ludicrous” defendant’s claim that he had not been read his Miranda rights

until after he signed the written statement. The court concluded that defendant’s rights

had been properly protected during questioning and that the police were not required to

suspend their investigation until defendant’s caseworker was notified “because then

they would be criticized for sitting on him for days.” In denying the suppression

motion, the court found that defendant understood his rights when he signed the waiver

form, and that, under “the totality of the circumstances,” his confession was voluntary.

¶ 14 The case proceeded to trial. The victim testified that defendant grabbed her arm and

forced her to take the next exit off the highway as she was driving him back to the

facility after his weekend family visit. At the time of the assault, defendant was 5 feet

10 inches and weighed between 250 and 300 pounds, while the victim was 5 feet 2

inches and weighed 115 pounds. After taking the exit, defendant directed her to park in

an empty lot in an industrial area and give him the keys to the van. She managed to

retain the keys and reached inside her purse for her cell phone to call the facility for

help, but defendant knocked the phone from her hand. Throughout the assault,

defendant told the victim not to make him hurt her, and she testified that she feared for

her life. She initially attempted to escape by opening the driver’s side door and stepping

out of the van, but defendant grabbed her coat and followed her out of the vehicle.

While returning the victim to the van, defendant pinned her against its sliding door,

holding her by the front of her neck as he opened the sliding door and shoved her

inside. She immediately tried to escape again, this time through the other sliding door,

but defendant caught her by the foot and pulled her back. At some point, the victim’s

global positioning system (GPS) was damaged, and the frayed cord fell onto the

parking lot, where it was later found by police.

¶ 15 Once back inside the van, defendant told the victim to remove her clothing. When

she refused, he forcibly removed her boots and jeans. He then ordered her to perform

oral sex, pushing her head down while gripping her by the hair and the back of her

neck. He grabbed the front of her neck and choked her until she opened her mouth.

After 20 or 30 seconds, defendant briefly stopped before choking her again as he forced

her to perform the act a second time. Next, defendant performed oral sex on the victim

before engaging in vaginal intercourse for 30 or 45 seconds. Throughout this time,

defendant appeared nervous and kept looking over his shoulder.

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¶ 16 Shortly after that, he apologized and said he did not want not to get in trouble. The

victim promised she would not tell anyone what happened, and he allowed her to dress.

They retrieved her cell phone as well as other items that had fallen out of her purse

before she drove the van back to the residential facility, arriving at about 6:30 p.m.

¶ 17 On the way into the facility, they passed one of the victim’s co-workers, and, after

defendant was secured behind locked doors, the victim ran back to him and collapsed,

sobbing. The co-worker carried the victim to the supervisor’s office, and the police

were called. The victim was taken back to the site of the assault before being examined

at a hospital. She reported experiencing pain in her genital area and finding it very

difficult to get out of bed the next day.

¶ 18 The emergency room physician who performed the sexual assault examination

testified for the State. He had treated about 100 sexual assault victims and was qualified

as an expert in emergency medicine. In his medical report, he noted redness, abrasions,

and a number of fresh bruises on the victim’s left thigh, wrist, elbow, and waist or hip.

An external genital examination failed to reveal any injuries, a finding the physician

explained was not unusual. An internal examination, however, revealed some cervical

redness. The physician was unable to attribute the redness to a sexual assault. On

cross-examination, the physician was unable to identify any specific source of the

redness.

¶ 19 The parties stipulated that the forensic report stated, “No DNA of Ronald Patterson

was found in the vaginal swab collected from [the victim].” During a subsequent

sidebar, defense counsel requested permission to question the doctor about the

presence of DNA (deoxyribonucleic acid) from someone other than defendant,

indicating that the victim “had recent intercourse, with someone else within 72 hours,

knowing how far—that’s about how long sperm last.” Counsel did not make an offer of

medical proof about how long cervical redness would have been present after

consensual intercourse. The State objected to the questioning, arguing the additional

questions would violate Illinois’s rape shield law, generally barring, in relevant part,

any examination of the victim’s prior sexual history with persons other than the

defendant. The State argued that the DNA found was from the victim’s boyfriend three

days before the assault and did not provide a basis for granting defendant’s request. The

trial court barred defendant from eliciting testimony about the victim’s prior activity to

explain the redness because the physician “did not even trace it back to this incident”

and “did not say it was the result of a rape.” After the sidebar, defense counsel did not

make any additional inquiry about cervical redness or its potential persistence.

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¶ 20 The investigating officers testified that the frayed cord to the victim’s GPS unit was

discovered in the parking lot where the assault occurred, while the GPS charger was

still inside the vehicle. In addition, the passenger side sun visor was torn from the

ceiling and found on the driver’s side floor. The side of the van was dirty, with visible

smudges and vague handprints outside the driver’s side door where defendant pinned

the victim after she tried to escape.

¶ 21 Detective Kaminski testified at trial, recounting portions of his suppression hearing

testimony and adding that he arrived at the residential facility around 9:15 p.m. and

spoke to the victim before she went to the hospital. He asserted that, as a trained youth

officer, his “responsibility was to first and foremost explain to [defendant] why he was

at the Schaumburg Police Department, After we got past that, then it was to read him

his Miranda warnings and to make sure that he understands what his Miranda warnings

were.” He determined defendant’s age, that defendant had lived at the residential

facility for three years, and that he was in ninth grade and could read. Detective

Kaminski indicated it was not his “job to give advice” to defendant and that he “made a

reasonable attempt” to contact defendant’s guardian before the interview began.

¶ 22 The officer who questioned defendant also testified at trial, stating that defendant,

who was not handcuffed at the time, gave two conflicting accounts of the incident. In

the first account, defendant claimed that the victim initiated the encounter, and he

denied that intercourse occurred. He also denied leaving the van while it was in the

parking lot. When the officer said he would check for surveillance footage from the

surrounding buildings, defendant’s demeanor changed suddenly. His shoulders

slumped, he hung his head, and he disclosed that he had not been telling the truth. He

then admitted committing the assault, stating he had not meant to hurt the victim but

had gotten angry because he had not taken his medication. Defendant’s second

statement was typed and read aloud before he signed it. The statement noted that

defendant was not threatened, coerced, or promised anything in return, and his

signature acknowledged that the statement was true, accurate, and voluntarily made

and that he previously had an opportunity to review and edit it.

¶ 23 Defendant testified in his own defense and refuted the inculpatory statements in the

confession. He asserted that the incident was consensual, without any struggle. He

testified that the victim simply exited the highway and parked in the lot without any

explanation before asking him to get into the backseat of the van. After he complied,

she unzipped his pants and performed oral sex for a few minutes before telling him it

was time to return to the facility. She told him that if he did not say anything, she would

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not either. They then returned to the front seats, and the victim drove back to the

facility. Defendant returned to his room, and Director Kehoe and defendant’s therapist

later came to get him from the dayroom and take him to the lobby, where the police

were waiting.

¶ 24 Defendant also described his interrogation at the police station, reiterating that he

was not given Miranda warnings until after the questioning. He denied knowing how

the van or the GPS unit was damaged or how the victim was injured. He also asserted

that the police lied about his confession. He maintained that he did not give the account

memorialized in the statement and that he was instructed to sign before reading it or

receiving any Miranda warnings.

¶ 25 To advance defendant’s consent defense, counsel questioned the victim’s

credibility during closing argument, asking the jury to consider why the victim was

“wearing elastic jeans that come down easily that might fall, and she doesn’t have any

underwear on” while working with teenage boys. He also asserted that the source of the

cervical redness was never established and emphasized the absence of any DNA from

defendant to raise questions about the validity of the victim’s story. Finally, counsel

argued that the validity of defendant’s confession was suspect because it was not

videotaped and the police should have “wait[ed] until Monday to get his guardian.”

¶ 26 After deliberating almost nine hours over two days, the jury found defendant guilty

on all three counts of aggravated criminal sexual assault, and he moved for a new trial,

contending that the police had not provided proper notice to his legal guardian. The

trial court denied the motion because “the police did make reasonable efforts to find a

guardian,” assigned a youth officer, and gave defendant “appropriate” Miranda

warnings that he understood.

¶ 27 Defendant’s motion for a new trial also alleged that the court erroneously denied

his request to ask about the victim’s sexual history to suggest an alternative explanation

for the cervical redness. He contended that the additional questions were necessary

because the jury may have assumed the redness was caused by defendant if they did not

know her boyfriend’s DNA had been found. The State countered that defendant had

extensively cross-examined the emergency room physician and had been allowed to

present his theory of the case adequately. The trial court denied defendant’s motion for

a new trial.

¶ 28 During sentencing, evidence was presented that defendant had been exposed to

cocaine before birth and taken into DCFS custody as an infant before being adopted by

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another family member. He had a long history of aggressive and violent behavior

toward both his family and others that resulted in several admissions to mental

hospitals with widely varying diagnoses, including depression, intermittent explosive

disorder, oppositional defiant disorder, bipolar disorder, and attention deficit

hyperactivity disorder. In 2006, his adoptive family voluntarily gave up custody to

DCFS based on defendant’s aggression and mental health needs.

¶ 29 The State’s aggravating evidence included a victim impact statement and reports of

defendant’s aggressive and violent behavior both toward residents and staff at the

treatment facility and while he was in custody awaiting trial. Defendant offered

mitigating letters and testimony requesting leniency due to his age, difficult childhood,

and mental health issues. After considering all the relevant factors, as well as

defendant’s potential for rehabilitation and the fact that he did not meet the statutory

criteria for mental retardation, the trial court sentenced defendant to three consecutive

12-year prison terms. The court subsequently denied defendant’s motions for a new

trial and to reconsider the sentence.

¶ 30 On appeal, defendant argued that the trial court’s denials of his suppression motion

and defense counsel’s request to introduce the victim’s sexual history were erroneous.

He also claimed defense counsel was ineffective for failing to offer evidence of his

mental impairment at the suppression hearing to establish the involuntary nature of his

confession. Finally, defendant contended that his sentence was excessive.

¶ 31 The appellate court reversed defendant’s convictions and remanded the cause for a

new trial, finding that his confession should have been suppressed because defendant’s

parents or another concerned adult had not been contacted before questioning and

Detective Kaminski’s actions conflicted with his role as defendant’s youth officer.

2012 IL App (1st) 101573, ¶¶ 37-39 (modified upon denial of rehearing Sept. 26,

2012). The court did not address defendant’s claim that his trial counsel had been

ineffective, however, instead initially “tak[ing] into consideration Patterson’s severely

limited intelligence and education” in its de novo review of the suppression issue. 2012

IL App (1st) 101573, ¶ 35 (modified upon denial of rehearing Sept. 26, 2012). The

court also addressed the merits of defendant’s rape shield claim, concluding that the

trial court erred in excluding evidence of the victim’s sexual history. 2012 IL App (1st)

101573, ¶ 45 (modified upon denial of rehearing Sept. 26, 2012).

¶ 32 The State filed a petition for rehearing, and the appellate court modified its opinion

to eliminate any consideration of defendant’s “severely limited intelligence and

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education,” but it still did not directly rule on defendant’s ineffective assistance claim.

2012 IL App (1st) 101573, ¶ 35 (modified upon denial of rehearing Sept. 26, 2012).

Applying a de novo standard of review, the appellate court again suppressed

defendant’s typewritten confession as involuntary, based on the same rationale it used

in its original opinion. 2012 IL App (1st) 101573, ¶¶ 38-40 (modified upon denial of

rehearing Sept. 26, 2012). Based on this disposition, the court did not reach the merits

of defendant’s excessive sentence claim.

¶ 33 This court allowed the State’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff.

July 1, 2013). We also permitted amicus curiae briefs to be filed by the Center on

Wrongful Conviction of Youth et al., and by the Children and Family Justice Center

et al. Ill. S. Ct. R. 345 (eff. Sept. 20, 2010).

¶ 34 II. ANALYSIS

¶ 35 Before this court, the State’s appeal raises two issues: (1) whether the appellate

court erred in suppressing defendant’s confession by concluding that: (a) a concerned

adult was not contacted pursuant to section 5-405(2) of the Juvenile Court Act of 1987

(705 ILCS 405/5-405(2) (West 2008)); and (b) the police youth officer improperly

participated in defendant’s interview; and (2) whether the trial court properly applied

the Illinois rape shield statute (725 ILCS 5/115-7(a) (West 2008)) in denying

defendant’s request to introduce evidence of the victim’s sexual history. In his

cross-appeal, defendant presents two additional issues: (1) whether defense counsel

provided ineffective assistance by not offering evidence of defendant’s diminished

mental capacity during the suppression hearing; and (2) whether the mandatory transfer

of certain minors from juvenile court to adult criminal court under the relevant portion

of section 5-130 of the Juvenile Court Act of 1987 (705 ILCS 405/5-130 (West 2008))

is constitutional under the due process clause, the Eighth Amendment, and the Illinois

proportionate penalties clause, particularly in light of the United States Supreme

Court’s rationale in Roper v. Simmons, 543 U.S. 551 (2005) (abolishing the death

penalty for all juveniles); Graham v. Florida, 560 U.S. 48 (2010) (barring life without

parole for juveniles in non-homicide cases), and Miller v. Alabama, 567 U.S. ___, 132

S. Ct. 2455 (2012) (barring mandatory life without parole for all juveniles).

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¶ 36 A. Suppression of Defendant’s Confession

¶ 37 In its appeal, the State initially argues that the appellate court erred in holding

defendant’s motion to suppress his confession should have been granted. The State

specifically refutes two of the court’s findings: (1) the police did not make a sufficient

effort to notify a concerned adult under section 5-405(2) (705 ILCS 405/5-405(2)

(West 2008)); and (2) the youth officer improperly participated in the investigation. In

his cross-appeal, defendant asserts an alternative rationale for upholding the appellate

court’s determination. He argues that his trial counsel provided him with ineffective

assistance at the hearing on the suppression motion. Although we review de novo the

ultimate question of whether defendant’s confession was voluntary after examining the

totality of the circumstances, we examine the trial court’s underlying factual findings

deferentially, overturning them only if they are against the manifest weight of the

evidence. In re G.O., 191 Ill. 2d 37, 50, 54 (2000).

¶ 38 1. The Statutory Notice Requirement

¶ 39 In examining whether the police complied with section 5-405(2), we look first to

the relevant portion of the statutory language:

“(2) A law enforcement officer who arrests a minor without a warrant under

Section 5-401 shall, if the minor is not released, immediately make a

reasonable attempt to notify the parent or other person legally responsible for

the minor’s care or the person with whom the minor resides that the minor has

been arrested and where the minor is being held ***.” (Emphasis added.) 705

ILCS 405/5-405(2) (West 2008).

¶ 40 The key to resolving the question in this case is the reasonableness of the

Schaumburg police department’s actions before defendant was questioned. The

appellate court concluded that those actions did not constitute a “reasonable attempt” to

contact a concerned adult, and defendant emphasizes that the presence of a “concerned

adult” before or during the interrogation is an “important element” in determining the

voluntariness of his confession (People v. Griffin, 327 Ill. App. 3d 538, 545 (2002)).

¶ 41 The parties agree that youth officer Kaminski called both the director of

defendant’s residential facility, Stephen Kehoe, and defendant’s caseworker to notify

them that defendant was at the Schaumburg station and was going to be questioned

about the assault shortly before questioning began at 10 p.m. When they could not be

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reached, Kaminski left voicemail messages for each of them. The State notes that

defendant’s caseworker did not return Detective Kaminski’s call for two days. The trial

court acknowledged this fact as well, stating the police did not need to stop the

investigation and “sit on the Defendant for days because then they would be criticized

for sitting on him for days.”

¶ 42 In addition, Kaminski testified that he established with another officer prior to the

start of questioning that Kehoe had previously been told where defendant was taken

and had given the police permission to speak to defendant. Detective Kaminski further

testified that, after defendant was questioned, he again called Kehoe, who confirmed

that the police had permission to speak with defendant as well as to search the facility’s

van for evidence.

¶ 43 In its evaluation of the witnesses, the trial court noted that Kehoe did not deny

giving permission and admitted he had spoken to three police officers that night,

although he was unable to recall giving his permission. The judge appeared somewhat

skeptical of Kehoe’s lack of memory, describing the lapse as “interesting” and finding

it “curious” that Kehoe’s counsel attempted, but was not permitted, to sit in the witness

box with him during questioning. In contrast, the judge “believe[d] Officer Kaminski,”

describing his testimony as “very credible.” Due to the inherent limitations in

reviewing a cold transcript, we must give the trial court’s credibility findings

considerable deference. People v. Wheeler, 226 Ill. 2d 92, 114-15 (2007).

¶ 44 While Detective Kaminski undoubtedly could have taken additional steps to notify

a concerned adult, such as seeking out and calling the caseworker’s home phone

number, none of those steps are required by the statute. 705 ILCS 405/5-405(2) (West

2008). Statutory compliance is solely dependent on the police making a “reasonable

attempt” at notification, not on perfect performance. In this instance, defendant was

taken into custody at approximately 8:30 p.m. on a Sunday. Detective Kaminski

testified that he attempted to comply with the notice requirement by placing telephone

calls to both the director of defendant’s residential facility, Stephen Kehoe, and

defendant’s caseworker before defendant was questioned. When he was unable to

reach either party, Kaminski left phone messages. Kaminski was also informed by

another officer prior to the start of questioning that Kehoe already granted permission

to question defendant, and Kehoe did not dispute that he may have given permission.

Although the statute does not require permission to interview a juvenile defendant, a

grant of permission establishes that actual notice was given, fulfilling the statute. In

addition, Detective Kaminski testified he personally spoke to Kehoe after defendant

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was questioned but before his statement was typed, reviewed with him, and signed. The

trial judge found Detective Kaminski to be a “very credible” witness, and nothing in the

record refutes that assessment.

¶ 45 The reasonableness of the notification attempt by the police is also supported by the

description of the persons subject to notification. Section 5-405(2) requires the police

to make a reasonable attempt to notify “the parent or other person legally responsible

for the minor’s care or the person with whom the minor resides.” 705 ILCS

405/5-405(2) (West 2008).

¶ 46 While DCFS was indisputably defendant’s legal guardian, the person or persons

who were “legally responsible for [his] care” during the years he lived at the treatment

facility is less clear. Defendant contends that Kehoe was not an appropriate adult to

contact because he did not work for DCFS. We need not definitively answer that

question here, however, because our inquiry is limited to determining whether the

police made a reasonable attempt to notify a proper person.

¶ 47 As the director of the treatment facility where defendant had resided for three years,

Kehoe was at least arguably “a person with whom defendant resided,” and bore some

degree of responsibility for his care. Although defendant contends that Kehoe was

more likely to be concerned for his injured staff member than for defendant, the plain

language of the statute does not require that the individuals to be notified be concerned

exclusively with the defendant’s well-being, instead simply listing broad categories of

potentially concerned adults.

¶ 48 Defendant emphasizes the absence of a concerned adult is particularly relevant if

the police have prevented an adult from talking to a juvenile, citing People v. Murdock,

2012 IL 112362, ¶ 33. While we agree with that general statement, we disagree that it

applies to the facts of this case. The record shows that Director Kehoe did not deny

giving the police permission to speak with defendant, and the trial court appears to have

been seriously troubled by his alleged lack of memory, particularly when he admitted

he spoke with three police officers that night. Defendant does not cite any case law

holding that a particular concerned adult was “prevented” from contacting a juvenile

merely because another potentially concerned adult could not be contacted. The statute

does not expressly require the police to attempt to contact every possible concerned

adult, and in the absence of that legislative mandate, we decline to read that

requirement into the statute. See People v. Lewis, 223 Ill. 2d 393, 403 (2006).

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Accordingly, we are not convinced that the police “prevented” any adult from

contacting defendant under the facts of this case.

¶ 49 Defendant also contends that finding the police attempts at notification to be

reasonable would defeat the purpose of obtaining a concerned adult. As enacted, the

statute does not mandate the presence of a concerned adult or, even more critically, that

actual notice be provided before the start of questioning. Section 5-405(2) simply

requires that the police make a reasonable attempt to provide notification. 705 ILCS

405/5-405(2) (West 2008). This court may not add requirements to those already

imposed by the plain language of the statute. Lewis, 223 Ill. 2d at 403. Therefore, based

on our review of all the relevant facts, we conclude that the attempt here by police to

provide proper notice, while arguably not exemplary, was sufficient to comport with

the legislature’s statutory mandate. Accordingly, we reverse the appellate court’s

contrary finding.

¶ 50 2. The Role of the Youth Officer

¶ 51 As an additional basis for reversing the denial of defendant’s motion to suppress his

confession, the appellate court concluded that youth officer Kaminski improperly

participated in the criminal investigation and “did not even fulfill the most basic of a

youth officer’s tasks.” 2012 IL App (1st) 101573, ¶ 38 (modified upon denial of

rehearing Sept. 26, 2012). Before this court, defendant points to Kaminski’s allegedly

improper acts of talking to the victim upon his arrival at the police station and working

with the questioning officer by helping to type defendant’s statement, reading it to

defendant, and obtaining his signature. Defendant analogizes these actions to those of

the youth officer in Murdock, 2012 IL 112362, ¶¶ 50-51, who actively worked against

the defendant’s interests, completely abandoning his protective role by actively

questioning the defendant about his involvement in the alleged offenses.

¶ 52 We concluded in Murdock that the juvenile officer “was not merely *** standing

by while another officer took the lead in interviewing defendant; rather, [he] was the

lead interviewer. *** [He] could not act as a juvenile officer or concerned adult while

at the same time compiling evidence against defendant.” Murdock, 2012 IL 112362,

¶ 51.

¶ 53 In contrast, Detective Kaminski was “merely a juvenile officer standing by while

another officer took the lead in interviewing defendant” (Murdock, 2012 IL 112362,

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¶ 51). Although Kaminski was present during the interview, defendant does not allege

that he asked any questions. Moreover, Detective Kaminski fulfilled the fundamental

duties of a youth officer noted in Murdock, such as inquiring whether defendant needed

anything, ensuring that he was treated properly while in custody, reading defendant his

Miranda rights (Murdock, 2012 IL 112362, ¶ 49), as well as ascertaining that he

understood those rights by asking him to explain each one individually. Although

defendant testified that he was not read his rights until after he signed a statement that

had been fabricated by the police, the trial court found those allegations to be

“ludicrous” and Kaminski’s contradictory account to be “very credible.” Defense

counsel also specifically denied at the suppression hearing any allegation of coercion

or duress by the police.

¶ 54 Even though Kaminski briefly spoke to the victim when he arrived at the police

station, the record does not show what information he obtained at that time, and

defendant does not establish how that conversation adversely affected his performance

as a youth officer that night. Our review of the record also fails to reveal any connection

between Kaminski’s conversation and possible prejudice to defendant. Nor did

Kaminski’s ministerial acts of helping the investigating officer type up the statement

and reading it aloud to defendant clearly breach the proper role of a youth officer. In

fact, to ensure defendant’s understanding of the contents of the statement, Kaminski

took the additional step of having him read it aloud before signing it.

¶ 55 As we explained in Murdock, “[w]hile the presence of a juvenile officer is a

significant factor in the totality of the circumstances argument, there is no requirement

that a juvenile officer be present when a minor is questioned, and the absence of a

juvenile officer will not make a juvenile’s statements per se involuntary.” Murdock,

2012 IL 112362, ¶ 52. Notably, despite the youth officer’s complete abandonment of

his duties, we ultimately concluded that the juvenile’s statements were made

voluntarily and upheld their admission at trial. Murdock, 2012 IL 112362, ¶ 55.

¶ 56 Here, Detective Kaminski’s actions did not remotely approach the complete

abandonment of his role as a youth officer. If the complete absence of a youth officer

and the active, adverse participation of a purported youth officer in the questioning of a

juvenile are not sufficient to mandate a finding that a statement is involuntary, then

Kaminski’s involvement does not either. Accordingly, we reject defendant’s argument

that the appellate court properly concluded that his statement was involuntary based on

Kaminski’s improper participation in the investigation.

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¶ 57 3. The Totality of the Circumstances

¶ 58 Next, we must examine the totality of the circumstances to determine de novo

whether the trial court’s denial of defendant’s motion to suppress his statement was

erroneous. In making that determination, we recognize that taking a juvenile

confession requires great care to ensure it did not result from mere juvenile ignorance

or emotion. G.O., 191 Ill. 2d at 50, 54-55. Relevant factors to consider include the

minor’s age, mental capacity, education, physical condition, the legality and length of

the interview, and physical or mental abuse by the police, as well as the presence of a

concerned adult and any attempts by the police to prevent or frustrate that contact.

G.O., 191 Ill. 2d at 54-55.

¶ 59 Defendant argues that the appellate court correctly determined that his statement

was involuntary due to the coercive atmosphere created by this combination of factors:

(1) the absence of a concerned adult during questioning; (2) the insufficiency of police

attempts to contact a concerned adult; (3) youth officer Kaminski’s participation in the

investigation; (4) defendant’s youth and minimal criminal justice system experience;

(5) the officers’ use of trickery during questioning; and (6) the time when questioning

was conducted.

¶ 60 In its modified decision, the appellate court relied heavily on the first three factors

cited by defendant. Having previously found that the police did not violate the notice

provision in section 5-405(2) and that Kaminski’s conduct was not improper, however,

we need not further examine those separate factors. Supra ¶¶ 48, 53-54. As for the

fourth factor, defendant’s youth and limited prior contact with the police, defendant

alleged in his motion to suppress that he was “a special education student with limited

reading comprehension and comprehension skills” but offered no supporting evidence

at the motion hearing. The absence of that evidence serves as the basis for defendant’s

additional claim that trial counsel provided him with ineffective assistance, a question

we will address later. For our present purpose of reviewing the propriety of the trial

court’s denial of the suppression motion, however, we consider only the evidence

actually adduced at the suppression hearing.

¶ 61 We also note that defendant specifically disavowed at that hearing any police

coercion or duress and does not allege any physical abuse or overt promises by police

during questioning before this court. Thus, we examine only the remaining factors at

issue in this case: (1) defendant’s age; (2) his limited experience with the criminal

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justice system; (3) any possible police deception, and (4) the time, legality, and

duration of the questioning. See G.O., 191 Ill. 2d at 54-55.

¶ 62 Addressing the first two factors together, the record shows that defendant was 15

years old and in ninth grade when he was questioned by police. Although defendant

had received a “station adjustment” from police when he was 11, he had no other

contact with the criminal justice system. Based on his prior experience, defendant

posits that the failure to tell him that he was facing adult charges likely caused him to

believe he would be allowed to go home if he cooperated by signing the confession.

Defendant has never claimed, however, that the police promised him anything in

exchange for his confession. Moreover, after viewing defendant’s testimony at the

suppression hearing, the trial court found him to be sufficiently mature to be capable of

making a valid statement, describing him as:

“a very astute young man. He is not in my opinion someone who does not

understand things, his testimony, and his demeanor while testifying and so

forth. I guess for lack of a better explanation from a judge’s point of view is he

looks and acts much, much older than his age. That’s not saying that his mental

state is older, but I don’t see any reason in the record that or even outside the

record that I saw after consideration of everything that I have heard to suppress

this statement.”

The trial judge had the distinct advantage of watching defendant testify, and his

description of defendant’s apparent maturity is not belied by our review of the record.

Accordingly, we defer to the trial court’s assessment. Wheeler, 226 Ill. 2d at 114-15.

¶ 63 Moreover, we have upheld the admission of statements obtained without the

benefit of a concerned adult from defendants considerably younger and less

experienced than defendant. In G.O., the defendant was just 13 years old when he was

adjudicated delinquent of first degree murder, aggravated discharge of a firearm,

aggravated battery, and aggravated battery with a firearm. G.O., 191 Ill. 2d at 40. The

police contacted his mother, and, although she did not contact him prior to questioning,

they did not frustrate any attempt to speak with him. G.O., 191 Ill. 2d at 56. Despite his

young age, we upheld the admission of his confession after reviewing the totality of

circumstances that are nearly identical to those in this case. We weighed the

defendant’s youthfulness, lack of prior contact with law enforcement, and the absence

of a concerned adult against the absence of any request to speak to an adult or evidence

that the police frustrated any attempts at outside contact, the validity of the detention,

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the giving and understanding of the defendant’s Miranda rights, his intelligence, the

short duration of the questioning, the absence of handcuffs, the opportunities given to

the minor for food, drink, and access to the bathroom, and the lack of any physical

coercion, threats, or promises by the police. G.O., 191 Ill. 2d at 56.

¶ 64 Defendant is also older than the minor in People v. Morgan, who was only 14 years

of age when he was charged with the murders of his grandfather and grandmother,

charges that ultimately resulted in a prison sentence of 75 years. People v. Morgan, 197

Ill. 2d 404, 410 (2001). The defendant had been an average student prior to being

expelled from a private school for misconduct, although he had twice been hospitalized

for over a month with diagnoses of attention deficient disorder and depression and had

been prescribed antidepressants. Although he was handcuffed when initially taken into

custody, the defendant was not restrained during questioning, nor was he threatened,

coerced, or promised anything by police. Morgan, 197 Ill. 2d at 437-39.

¶ 65 This court was troubled most by the police department’s complete failure to

attempt to contact a concerned adult, or even a youth officer, prior to questioning, but

we noted that the police did not actively prevent or frustrate contact and the defendant

did not ask to speak to an adult. We also expressly recognized that a juvenile’s

confession should not be suppressed merely because he was denied an opportunity to

confer with a concerned adult. Morgan, 197 Ill. 2d at 439-40 (citing G.O., 191 Ill. 2d at

55).

¶ 66 The defendant in Morgan was offered food, drink, and bathroom access and was

held in custody for less than six hours. Morgan, 197 Ill. 2d at 436, 439. He was read his

Miranda rights before being subjected to two interviews of approximately 30 minutes

each. Although the defendant claimed he did not understand those rights and felt he had

no choice but to answer the officer’s questions, the record showed that he affirmatively

declined to answer one question. Consequently, we agreed with the trial court’s factual

finding that the defendant understood his rights and that his will had not been

overborne when he confessed to the murders. Accordingly, we affirmed the trial

court’s denial of the defendant’s motion to suppress his custodial statements. Morgan,

197 Ill. 2d at 441.

¶ 67 Finally, as in Murdock, 2012 IL 112362, ¶ 44, the instant defendant was “on the

older end of the juvenile scale.” In Murdock, the defendant was 16 years old when he

was tried as an adult and convicted of first degree murder and aggravated battery with a

firearm. Murdock, 2012 IL 112362, ¶ 3. The evidence established that the defendant

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received poor grades and had completed only one semester at an alternative high school

before trial. On appeal, he argued that the trial court erred by denying his motion to

suppress his statement as involuntary. Murdock, 2012 IL 112362, ¶ 28.

¶ 68 We concluded that the youth officer actively worked against the defendant’s

interests and that no other concerned adult was available to him prior to and during

questioning. Murdock, 2012 IL 112362, ¶¶ 50-51. Nonetheless, after examining the

totality of the circumstances, we affirmed the trial court’s determination that his

confession was voluntary and admissible. In reaching that conclusion, we looked at the

defendant’s lack of prior police contact, his demeanor and degree of understanding

during questioning, his physical condition, his opportunities for food, drink, and

bathroom use, and the absence of any coercion, physical or mental abuse, or promises

or trickery by the police. Murdock, 2012 IL 112362, ¶ 55.

¶ 69 Notably, the length of the defendant’s detention and interview in Murdock were

both considerably longer than those of defendant in this case. Murdock was detained

for six to seven hours and questioned for three hours, with the interview concluding

before “the very early morning hours.” Murdock, 2012 IL 112362, ¶ 47. Here,

defendant was taken into custody at 8:30 p.m., and signed his statement at 11:15 p.m.,

after just 45 minutes of questioning.

¶ 70 Our decisions in G.O., Morgan, and Murdock are highly instructive in this case,

and we are not persuaded by defendant’s attempts to distinguish Murdock and G.O. on

their facts. He contends that Murdock is distinguishable because there it was “clear”

that the juvenile’s grandfather, who was at the police station, never requested to speak

with him and the police officer testified contact would have been permitted if a request

had been made. Here, the police allegedly questioned defendant “with full knowledge

that no concerned adult would even know” he had been taken into custody,

contributing to the coercive atmosphere present during questioning.

¶ 71 We reject defendant’s argument for two reasons. First, Detective Kaminski testified

that he was informed prior to the start of questioning that Director Kehoe had already

given permission for the interview, and the trial court found his testimony to be highly

credible. Thus, Kaminski would have reasonably believed a concerned adult had been

notified and chose not to speak with defendant before questioning. Under those

circumstances, the police could not have leveraged any possible advantage from

withholding notice to a concerned adult during questioning. Second, defendant’s

argument is logically inconsistent. The coercive effect of the lack of contact between a

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minor defendant and a concerned adult prior to questioning is the same regardless of

whether it resulted from the failure of a concerned adult who was actually present at the

police station to request contact, as in Murdock, or a lack of notice to any concerned

adult at all, as defendant alleges here. Under either set of circumstances, the juvenile

would still be subject to questioning without the benefit of a concerned adult’s

experience and insight.

¶ 72 Defendant also attempts to distinguish Murdock because in that case the court had

the advantage of a videotape of the defendant’s confession. That videotape

contradicted his claims at his suppression hearing that the police promised he could go

home if he confessed and that he was tired and scared. Here, defendant’s confession

was not videotaped. When asked about the absence of a video recording in this case, the

interviewing officer testified that the police department’s policy was to videotape

statements only in homicide cases. While the trial court’s review of the parties’

demeanor and the actual conversation that took place in Murdock was undoubtedly a

factor in determining whether his confession was voluntary, no mandate to record

defendant’s statement in this case existed, and we decline to impose one judicially. We

conclude the absence of a video record here is a neutral factor that cannot support

defendant’s claim that his statement was involuntary.

¶ 73 Defendant also asserts that G.O. is distinguishable from this case for a similar

reason. He maintains that here the police prevented him from speaking to a concerned

adult by starting the interview only minutes after leaving messages for Director Kehoe

and defendant’s caseworker. We reject this argument for the same reasons we rejected

defendant’s similar contention about Murdock. Supra ¶ 71. Furthermore, we have

already held that the police complied with their statutory duty of notification. Supra

¶ 48. Having fulfilled that duty, the police were under no obligation to delay the start of

defendant’s interview.

¶ 74 Next, defendant attempts to distinguish G.O. because the juvenile in that case

performed well in school while this defendant’s motion to suppress alleged that he was

“a special education student with limited reading comprehension and comprehension

skills.” No evidence of defendant’s allegedly deficient reading and comprehension

skills was offered, however, at the motion hearing. In addition, we defer, as we must

under this record, to the trial court’s conclusion that defendant understood his rights

and possessed sufficient maturity and intellectual ability to make a valid statement.

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¶ 75 Indeed, the record shows he was astute enough to tell the police initially that the

victim had instigated the single act of consensual oral sex that he admitted took place.

This deliberate attempt to avoid culpability belies any claim that he was confused by

the questioning, intimidated by the authority figures, or unable to understand the

serious nature and consequences of the interview process.

¶ 76 Defendant next argues that, unlike in G.O., the police tricked and deceived him

during questioning. While deception is not per se unlawful, it can contribute to the

coerciveness of the interrogation and weigh against a finding of voluntariness. G.O.,

191 Ill. 2d at 54-55. Defendant asserts that his confession was made immediately after

Detective Atamian told him the police would check video surveillance footage from

businesses in the vicinity of the assault for discrepancies in his story even though the

officer did not know at that time whether any footage was available. He adds that even

if the officer’s statements were technically true, they amounted to trickery designed to

induce him to confess.

¶ 77 Defendant does not dispute that the examining officer never said incriminating

footage had actually been recovered, and the police looked later, unsuccessfully, for

surveillance cameras in the area. While the mere prospect that video footage revealing

inaccuracies in his statement could be recovered likely influenced defendant’s decision

to renounce his initial story, that result is consistent with the underlying purpose of any

interrogation, i.e., to elicit the truth. The officer’s statement accurately informed

defendant of what the police would be doing to verify his account. Therefore, we

decline defendant’s invitation to deem the interviewing officer’s utterly truthful

statement to be “trickery.” Overall, we conclude that the factual distinctions defendant

alleges exist between this case and G.O. are insignificant.

¶ 78 The appellate court, however, relied on defendant’s youth and inexperience, as well

as its view that the police did not do enough to contact a concerned adult and that

Detective Kaminski’s actions conflicted with his role as a youth officer, to conclude

that the trial court erred in denying defendant’s motion to suppress because it was

involuntary. After considering the totality of the circumstances surrounding

defendant’s confession, as well as our prior decisions in G.O., Morgan, and Murdock

that upheld the admissibility of statements under substantially similar conditions, we

hold the appellate court erroneously reversed the trial court’s denial of defendant’s

motion to suppress his statement.

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¶ 79 B. Ineffective Assistance of Counsel

¶ 80 As an alternative basis to uphold the appellate court’s finding that the trial court

erred in denying his suppression motion, defendant argues in his cross-appeal that his

trial counsel failed to provide him with effective legal assistance. He contends that by

not offering evidence of his diminished mental capacity at the suppression hearing to

support the bare claim in his motion to suppress that he was “a special education

student with limited reading comprehension and comprehension skills,” counsel

violated defendant’s right to effective assistance. He asserts that counsel’s knowledge

of his limited intellectual functioning and longstanding mental health issues was

demonstrated by counsel’s request for a pretrial fitness hearing and subsequent review

of the examining psychiatrist’s report.

¶ 81 To establish ineffective assistance of counsel, a defendant must satisfy the

two-prong Strickland test, demonstrating that: (1) counsel’s performance was

objectively unreasonable compared to prevailing professional standards; and (2) there

is a “ ‘reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different.’ ” People v. Domagala, 2013 IL 113688,

¶ 36 (quoting Strickland v. Washington, 466 U.S. 668, 694 (1984)). Satisfying the

prejudice prong necessitates a showing of actual prejudice, not simply speculation that

defendant may have been prejudiced. People v. Bew, 228 Ill. 2d 122, 128-29 (2008).

Furthermore, a “reasonable probability” is defined as a showing sufficient to

undermine confidence in the outcome, rendering the result unreliable or fundamentally

unfair. People v. Evans, 209 Ill. 2d 194, 220 (2004). When reviewing a ruling on a

motion to suppress, overcoming the prejudice prong requires the defendant to show a

reasonable probability both that: (1) the suppression motion would have been granted;

and (2) the trial outcome would have been different if the evidence had been

suppressed. Bew, 228 Ill. 2d at 128-29. Because we may properly resolve claims of

ineffective assistance after examining only the prejudice prong (People v. Hale, 2013

IL 113140, ¶ 17), we begin here by examining defendant’s allegations of prejudice.

¶ 82 Defendant claims that his lengthy mental health history and limited intellectual

capacity made him more susceptible to subtle police intimidation and coercion and that

the evidence of his mental functioning would have weighed heavily in his favor in

evaluating the voluntariness of his confession. If that evidence had been offered during

the suppression hearing, defendant asserts that the outcome would have been different

and his motion would have been granted, establishing prejudice.

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¶ 83 Even if we accept defendant’s contention that the trial court would have suppressed

his statement in light of the additional evidence, he has still failed to demonstrate a

reasonable probability that the outcome of the entire trial would have changed,

resulting in his acquittal. See Bew, 228 Ill. 2d at 128-29 (requiring a reasonable

probability of different outcomes at both the suppression hearing and the trial).

Disregarding any evidence related to defendant’s statement, the trial evidence consists

predominantly of the conflicting accounts offered by defendant and the victim, along

with physical evidence of her injuries and the damage to her GPS and the treatment

facility’s van. At its core, the 25-year-old victim testified that she was assigned by her

employer to pick defendant up in the van and return him to the center after a weekend

visit with his family. After starting back to the facility with defendant, she described

being frightened and physically overwhelmed by the much larger defendant, who

forced her to exit the highway and park the van in a vacant parking lot. Although she

repeatedly tried to escape, defendant was able to grab and restrain her, sometimes

choking her into compliance. She was forcibly subjected to two brief nonconsensual

oral sex acts, as well as to nonconsensual sexual intercourse, that lasted between 30 and

45 seconds. At the end of the assault, defendant apologized and said he had not

intended to hurt her. After stating she would not tell anyone what had happened, she

was allowed to drive the van back to the residential treatment facility. Once defendant

was locked inside his unit, she immediately reported the assault to a co-worker,

collapsing and sobbing, and the police were called.

¶ 84 Photographs taken several hours after the incident and testimony from the police

officer who initially interviewed the victim and the treating emergency room physician

confirmed that she was visibly upset and exhibited fresh bruises on her left thigh, wrist,

elbow, and waist or hip. The police officer also recalled seeing a red mark on the side of

her neck that did not photograph well several hours after the attack. In addition, a large

area of dirt on the driver’s side of the van was smeared and a smudged handprint was

discovered near the sliding door, consistent with the victim’s story that defendant

caught her by her coat hood after she escaped from the van and pushed her against its

side before shoving her inside again. Also consistent with E.C.’s account, her frayed

GPS cord was found in the parking lot where the assault took place. Finally, the van’s

visor was recovered from the floor of the vehicle, ripped from its hinge, consistent with

a struggle.

¶ 85 For his part, defendant’s testimony differed in nearly every respect. He stated that

before this incident he had recognized the victim as a facility staff member and that she

had taken him to a movie he had earned as a behavioral reward a few days before the

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incident. On the day of the assault, he claimed it was E.C. who chose to exit the

highway and park in the vacant lot. She then asked defendant to get into the backseat of

the van, and she exited the vehicle merely to get into the backseat with him. She

unzipped defendant’s pants and proceeded to perform oral sex for three or four minutes

before saying it was time to return to the facility and telling him she would not say

anything about the events if he did not. He denied engaging in any other sexual activity

with her. He then returned to the front seat through the middle aisle of the van while the

victim exited the vehicle and re-entered through the driver’s side door. At some point,

she mentioned to defendant that it was her birthday. After returning to the treatment

facility, defendant relaxed in the dayroom until he was escorted to the lobby by his

therapist and Director Kehoe, where he was handcuffed and taken into custody before

being driven to the police station. Defendant expressly denied the details of the assault

related in the victim’s testimony.

¶ 86 On cross-examination, defendant indicated E.C. made up the allegations. He denied

ever getting out of the van or struggling with her while parked in the vacant lot. He had

no explanation for the multiple fresh bruises on the victim’s body within hours of the

assault or the damage to the van and the GPS.

¶ 87 Although credibility is generally a question for the trier of fact (People v. Wheeler,

226 Ill. 2d 92, 114-15 (2007)), here the physical evidence strongly corroborated E.C.’s

testimony. The details of her account were entirely consistent with the physical

evidence of a violent assault, while defendant’s account could not be reconciled with

that evidence. Given the overwhelming evidence corroborating the victim’s testimony

and weighing against defendant’s account, we are not persuaded that it is reasonably

probable that a jury would have acquitted defendant even in the absence of any

reference to his confession at trial. The reasonably probable impact of counsel’s

alleged error is not sufficient to undermine our confidence in the outcome of the trial.

Therefore, defendant has failed to establish the prejudice prong of the Strickland test,

and we reject his claim that defense counsel provided constitutionally ineffective

assistance. See Hale, 2013 IL 113140, ¶ 17 (noting that claims of ineffective assistance

of counsel may be decided on the Strickland prejudice prong alone). Because the

appellate court erred in holding defendant’s motion to suppress his statement should

have been granted, we reverse that portion of its judgment and affirm the trial court’s

denial of defendant’s motion.

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¶ 88 C. Constitutionality of the Mandatory Transfer Statute

¶ 89 In his cross-appeal, defendant argues that the mandatory transfer provision of the

Juvenile Court Act of 1987 (705 ILCS 405/5-130 (West 2008)), automatically

transferring certain minors from the jurisdiction of the juvenile court to the adult

criminal court, is constitutionally invalid. More specifically, he contends that the

automatic transfer statute, either alone or in conjunction with Illinois’s mandatory

consecutive sentencing scheme (730 ILCS 5/5-8-4(a)(ii) (West 2008)) and “Truth in

Sentencing” rules requiring him to serve at least 85% of his sentence (730 ILCS

5/3-6-3(a)(2)(ii) (West 2008)), is unconstitutional. These provisions purportedly do not

take into account the inherent differences between juveniles and adults, including

juveniles’ reduced culpability and greater ability to change. Therefore, defendant

argues that the provisions are fatally “flawed,” violating the federal and state due

process clauses (U.S. Const., amends. V, XIV; Ill. Const. 1970, art. I, § 2), the cruel

and unusual punishment clause of the eighth amendment of the federal Constitution

(U.S. Const., amend. VIII), and the proportionate penalties clause of the Illinois

Constitution (Ill. Const. 1970, art. I, § 11).

¶ 90 Constitutional challenges carry the heavy burden of successfully rebutting the

strong judicial presumption that statutes are constitutional. In addition, courts have a

duty to uphold the constitutionality of a statute whenever reasonably possible,

resolving any doubts in favor of its validity. We review the constitutionality of any

statute de novo. People v. Dabbs, 239 Ill. 2d 277, 291 (2010).

¶ 91 Here, the automatic transfer statute requires juveniles who are at least 15 years old

and charged with one of the enumerated crimes to be prosecuted in adult criminal court

rather than in juvenile court. The specified crimes are first degree murder, aggravated

battery with a firearm, when the minor has personally discharged the firearm, armed

robbery committed with a firearm, aggravated vehicular hijacking committed with a

firearm, and aggravated criminal sexual assault. 705 ILCS 405/5-130 (West 2008).

Because defendant was 15 years old when he was charged with aggravated criminal

sexual assault, the provision required him to be automatically transferred to criminal

court for trial and, if convicted, sentenced as an adult.

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¶ 92 1. The Due Process Claim

¶ 93 We first address defendant’s due process claim. As both parties recognize, this

court rejected a similar claim challenging the predecessor to section 5-130 in People v.

J.S., 103 Ill. 2d 395 (1984). In that consolidated case, the three defendants were each 16

years old when the offenses were committed, and they were automatically transferred

to criminal court under the statute. The trial court in each case found the transfer statute

unconstitutional, and on direct appeal to this court, the defendants argued it violated

both procedural and substantive due process. J.S., 103 Ill. 2d at 402.

¶ 94 In rejecting that claim, this court distinguished Kent v. United States, 383 U.S. 541

(1966), where the United States Supreme Court invalidated a District of Columbia

statute allowing minors to be tried as adults, potentially exposing some of them to the

death penalty or life imprisonment, if the trial court determined that juvenile court

jurisdiction should be waived after a “full investigation.” Kent, 383 U.S. at 547. The

Court held that due process was violated because the statute did not provide sufficient

guidance in deciding when waiver was proper, permitting potentially arbitrary rulings,

and because the statute did not provide juveniles with a hearing before that

determination was made. Kent, 383 U.S. at 561-62. We concluded in J.S. that Illinois’s

automatic transfer statute did not suffer from the same failing because it required all

15- and 16-year-olds charged with the listed offenses to be transferred to criminal

court, thus eliminating the potential for the use of unguided discretion in the juvenile

court that was found to be unconstitutional by the Supreme Court. J.S., 103 Ill. 2d at

405. Applying a similar rationale in People v. P.H., 145 Ill. 2d 209, 236 (1991), we also

rejected a juvenile defendant’s due process challenge to the “gang-transfer” provisions

of the transfer statute.

¶ 95 Furthermore, this court again upheld the automatic transfer statute against a due

process challenge in People v. M.A., 124 Ill. 2d 135, 147 (1988). In that case, the

juvenile defendant’s challenge was based on the legislature’s 1985 statutory

amendment of the transfer provision, adding unlawful use of weapons on school

grounds to the list of eligible offenses. M.A., 124 Ill. 2d at 138. We concluded that the

legislature did not act irrationally or arbitrarily or contravene the purpose of the

Juvenile Court Act in amending the statute and upheld the constitutional validity of the

amended statute. M.A., 124 Ill. 2d at 145-46.

¶ 96 Here, however, defendant asserts that J.S. is no longer valid law in light of the

United States Supreme Court’s subsequent rulings in Roper v. Simmons, 543 U.S. 551

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(2005), Graham v. Florida, 560 U.S. 48 (2010), and Miller v. Alabama, 567 U.S. ___,

132 S. Ct. 2455 (2012). Defendant argues that this court’s reliance on the absence of

any statutory judicial discretion in J.S. to uphold the transfer statute supports his

allegation of a due process violation in this case because those Supreme Court

decisions emphasized a need to recognize the unique characteristics of youthful

offenders that is inconsistent with an automatic transfer.

¶ 97 As previously discussed, in J.S., the defendant unsuccessfully attempted to support

his due process argument by distinguishing the Supreme Court’s due process analysis

in Kent. J.S., 103 Ill. 2d at 404-05. In contrast, here defendant is attempting to support

his due process argument by relying on the Supreme Court’s eighth amendment

analysis in Roper, Graham, and Miller. Defendant’s constitutional argument is crafted

from incongruous components. Although both the Supreme Court and defendant have

emphasized the distinctive nature of juveniles, the applicable constitutional standards

differ considerably between due process and eighth amendment analyses. A ruling on a

specific flavor of constitutional claim may not justify a similar ruling brought pursuant

to another constitutional provision. See People v. Davis, 2014 IL 115595, ¶ 45 (finding

the juvenile defendant’s sentence violated the eighth amendment but declining to

consider his state due process and proportionate penalties challenges). In other words, a

constitutional challenge raised under one theory cannot be supported by decisional law

based purely on another provision. United States v. Lanier, 520 U.S. 259, 272 n.7

(1997). Accordingly, we reject defendant’s reliance on the Supreme Court’s eighth

amendment case law to support his procedural and substantive due process claims.

¶ 98 Moreover, this court has recently had the opportunity to examine the effect of the

Supreme Court’s analyses in Roper, Graham, and Miller in a due process challenge

raised by the defendant in Davis, 2014 IL 115595, ¶ 30. As in this case, the defendant

in Davis relied heavily on the “special status” of juveniles acknowledged by the

Supreme Court. As we noted, however, this court recognized the special characteristics

and vulnerabilities of juvenile offenders several years earlier, substantially anticipating

the Supreme Court’s view in our extensive discussion in People v. Miller, 202 Ill. 2d

328 (2002) (hereinafter, Leon Miller). Davis, 2014 IL 115595, ¶ 45. We concluded in

Davis that res judicata precluded our reconsideration of whether due process was

violated by the imposition of a natural life sentence on the 14-year-old defendant even

in the aftermath of Roper, Graham, and Miller, and we find no more persuasive basis

here to reconsider our decision to uphold the transfer statute in the face of a due process

challenge in J.S.

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¶ 99 2. The Eighth Amendment and Proportionate Penalties Claims

¶ 100 Defendant more properly relies on the decisions in Roper, Graham, and Miller to

support his constitutional challenge to the Illinois automatic transfer statute under the

federal cruel and unusual punishment clause (U.S. Const., amend. VIII) and our state

proportionate penalties clause (Ill. Const. 1970, art. I, § 11). He contends that those

decisions require a finding that the transfer statute, either alone or in conjunction with

Illinois’s mandatory consecutive sentencing scheme (730 ILCS 5/5-8-4(a)(ii) (West

2008)) and “Truth in Sentencing” rules (730 ILCS 5/3-6-3(a)(2)(ii) (West 2008)

(requiring defendant to serve 85% of his sentence)), are fatally flawed because they do

not take juveniles’ distinctive characteristics into account. Defendant asserts that the

challenged statutes fail to recognize modern scientific research showing that youths are

different from adults in three ways. Research shows that juveniles differ from adults

because they are: (1) more impulsive; (2) more vulnerable to negative influences and

outside pressure; and (3) possess a less well formed character, making their actions less

indicative of irreversible depravity. Miller, 567 U.S. at ___, 132 S. Ct. at 2464. In

recognition of those findings, the Supreme Court has concluded that juveniles “are

constitutionally different from adults for purposes of sentencing.” Miller, 567 U.S. at

___, 132 S. Ct. at 2464). Defendant argues that, therefore, the Supreme Court has

extended two death penalty case rules to juveniles in non-capital cases: (1)

categorically disallowing application of the same harsh sentencing standards as adults

because they are inconsistent with evolving standards of decency; and (2) requiring

individualized sentences for juveniles because “death is different” and so are minors.

Miller, 567 U.S. at ___, ___, ___, ___, ___, 132 S. Ct. at 2463-64, 2460, 2467, 2470,

2475.

¶ 101 We begin our review by examining the relevant constitutional language. The eighth

amendment protects defendants against cruel and unusual punishment, while the

Illinois proportionate penalties clause similarly bars the imposition of unreasonable

sentences, stating 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). Under the definition of the plain language

used, neither clause applies unless a punishment or penalty has been imposed.

¶ 102 To support his claim that the transfer statute is covered by the eighth amendment

and the proportionate penalties clause because it is punitive rather than procedural,

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defendant analogizes to ex post facto cases where transfer statutes have been deemed to

be inherently punitive because they ultimately resulted in the imposition of harsher

sentences on juveniles. United States v. Juvenile Male, 819 F.2d 468, 471 (4th Cir.

1987). We are not persuaded by defendant’s line of reasoning.

¶ 103 Just as due process cases cannot be resolved based solely on eighth amendment

analyses, neither can eighth amendment issues be disposed of based solely on the

rationale and standards applied in ex post facto cases. See Lanier, 520 U.S. at 272 n.7

(explaining that a constitutional attack based on one provision cannot be supported by

decisions relying strictly on another provision). Defendant’s challenge is raised

pursuant to the eighth amendment and Illinois’s proportionate penalties clause. It does

not implicate ex post facto law, and, in any event, this court is not bound by decisions

cited by defendant (People v. Clemons, 2012 IL 107821, ¶ 32).

¶ 104 We also reject defendant’s assertion that the transfer statute effectively functions as

a sentencing statute, particularly when applied with mandatory consecutive sentencing

and “truth in sentencing” provisions. As this court has repeatedly explained, access to

juvenile courts is not a constitutional right because the Illinois juvenile justice system is

a creature of legislation. M.A., 124 Ill. 2d at 141; J.S., 103 Ill. 2d at 402. Whether a

defendant is tried in juvenile or criminal court is purely a matter of procedure. City of

Urbana v. Andrew N.B., 211 Ill. 2d 456, 486 (2004) (Freeman, J., dissenting); P.H.,

145 Ill. 2d at 222. Even if we accept the assertion that a juvenile who is convicted in

criminal court is always subject to a lengthier sentencing range and harsher prison

conditions than if he had been adjudicated in juvenile court, defendant cites nothing

that can convert a purely procedural statute into a punitive one.

¶ 105 This court has previously concluded that the purpose of the transfer statute is to

protect the public from the most common violent crimes, not to punish a defendant. In

enacting the automatic transfer statute, the legislature has reasonably deemed criminal

court to be the proper trial setting for a limited group of older juveniles charged with at

least one of five serious named felonies. J.S., 103 Ill. 2d at 403-04. Because we decline

to second-guess the validity of the legislature’s judgment (P.H., 145 Ill. 2d at 233),

defendant has not convinced us to disregard our long held view that the transfer statute

is purely procedural and now construe it to be punitive. As we stated in M.A., 124 Ill. 2d

at 146, “The differences in treatment created by the statute in question is not in the

penalty provided for different offenses.” The mere possibility that a defendant may

receive a potentially harsher sentence if he is convicted in criminal court logically

cannot change the underlying nature of a statute delineating the legislature’s

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determination that criminal court is the most appropriate trial setting in his case. We

reject the connection between the transfer statute and the imposition of harsher

punishment alleged by defendant as simply too attenuated to be persuasive.

¶ 106 Therefore, in the absence of actual punishment imposed by the transfer statute,

defendant’s eighth amendment challenge cannot stand. See Ingraham v. Wright, 430

U.S. 651, 671 n.40 (1977). Because the Illinois proportionate penalties clause is

co-extensive with the eighth amendment’s cruel and unusual punishment clause (In re

Rodney H., 223 Ill. 2d 510, 518 (2006)), we also reject defendant’s challenge under our

state constitution.

¶ 107 Finally, defendant suggests that, at a minimum, the combination of the transfer

statute and the applicable sentencing provisions is unconstitutional as applied to

non-homicide offenders because they are “categorically less deserving of the most

serious forms of punishment than are murderers.” Graham, 560 U.S. at 69. Because

defendant did not kill or intend to kill, he claims he has a “twice diminished moral

culpability” and does not deserve the most severe punishments. Graham, 560 U.S. at

69. Defendant asserts that youthfulness must be considered whenever “a harsh adult

sentence” is given to a minor because juveniles’ distinctive traits are not

crime-specific, citing Miller, 567 U.S. at ___, 132 S. Ct. at 2465. In support, defendant

also cites Leon Miller, 202 Ill. 2d at 340-41, where this court found the imposition of a

mandatory life sentence on a 15-year-old convicted of two counts of first degree

murder based on accountability after an automatic transfer to adult court

unconstitutional because the youth’s age and personal culpability were never

considered.

¶ 108 Here, defendant was sentenced to 12 years in prison on each of three counts of

aggravated criminal sexual assault. The sentences were required to be served

consecutively (730 ILCS 5/5-8-4(a)(ii) (West 2008)), and defendant was statutorily

mandated to serve at least 85% of his total prison term (730 ILCS 5/3-6-3(a)(2)(ii)

(West 2008)), or 30 years, 7 months. Although lengthy, that term is not comparable to

either the death penalty or “ ‘the second most severe penalty permitted by law,’ ” life in

prison without parole (Graham, 560 U.S. at 69 (quoting Harmelin v. Michigan, 501

U.S. 957, 1001 (1991) (Kennedy, J., concurring in part and concurring in the judgment,

joined by O’Connor and Souter, JJ.))). The Supreme Court has clearly distinguished

the latter sentences from any others, noting both the uniqueness of the “ ‘severity and

irrevocability’ ” of the death penalty and the “characteristics with death sentences that

are shared by no other sentences” besides life without parole. Graham, 560 U.S. at 69

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(quoting Gregg v. Georgia, 428 U.S. 153, 187 (1976) (joint opinion of Stewart, Powell,

and Stevens, JJ.)). The Supreme Court has also instructed that “[a] State is not required

to guarantee eventual freedom to a juvenile offender convicted of a nonhomicide

crime,” but only to give those offenders “some meaningful opportunity to obtain

release based on demonstrated maturity and rehabilitation,” expressly leaving the

specific mechanism and means to each State. Graham, 560 U.S. at 75. Most recently, in

Miller the Court reiterated the Graham rationale and emphasized the “unprecedented”

nature of the Court’s expansion of its categorical ban to the imposition of life without

parole for juveniles in nonhomicide cases. Miller, 567 U.S. at ___, 132 S. Ct. at 2466.

¶ 109 Similarly, this court has unanimously declined to expand the narrow rule in

Graham to all juveniles sentenced to life without parole for homicides. Davis, 2014 IL

115595, ¶¶ 48-49. Although defendant relies on Leon Miller, that decision is

inapposite. There, we described the minor defendant as “the least culpable offender

imaginable,” having been convicted of two murders solely on the theory of

accountability. Nonetheless, he was subject to mandatory life in prison with no

possibility of parole. Leon Miller, 202 Ill. 2d at 341. In our ruling, we focused on the

particular harshness and obvious lack of proportionality of that sentence in light of the

unique facts of the case. We expressly:

“agree[d] with defendant that a mandatory sentence of natural life in prison

with no possibility of parole grossly distorts the factual realities of the case and

does not accurately represent defendant’s personal culpability such that it

shocks the moral sense of the community. This moral sense is particularly true,

as in the case before us, where a 15-year-old with one minute to contemplate his

decision to participate in the incident and stood as a lookout during the

shooting, but never handled a gun, is subject to life imprisonment with no

possibility of parole—the same sentence applicable to the actual shooter.” Leon

Miller, 202 Ill. 2d at 341.

Nonetheless, we refrained from barring the imposition of a life sentence on any

juvenile offender, denying any implication “that a sentence of life imprisonment for a

juvenile offender convicted under a theory of accountability is never appropriate.” As

we explained, “[i]t is certainly possible to contemplate a situation where a juvenile

offender actively participated in the planning of a crime resulting in the death of two or

more individuals, such that a sentence of natural life imprisonment without the

possibility of parole is appropriate.” Leon Miller, 202 Ill. 2d at 341.

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¶ 110 Accordingly, both this court and the United States Supreme Court have closely

limited the application of the rationale expressed in Roper, Graham, and Miller,

invoking it only in the context of the most severe of all criminal penalties. A prison

term totalling 36 years for a juvenile who personally committed three counts of

aggravated criminal sexual assault does not fall into that category. We decline

defendant’s invitation to extend the Supreme Court’s eighth amendment rationale to

the facts of this case.

¶ 111 We do, however, share the concern expressed in both the Supreme Court’s recent

case law and the dissent in this case over the absence of any judicial discretion in

Illinois’s automatic transfer provision. While modern research has recognized the

effect that the unique qualities and characteristics of youth may have on juveniles’

judgment and actions (see, e.g., Roper, 543 U.S. at 569-70; infra ¶ 156), the automatic

transfer provision does not. Indeed, the mandatory nature of that statute denies this

reality. Accordingly, we strongly urge 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

proceedings in these juvenile cases.

¶ 112 D. The Illinois Rape Shield Law

¶ 113 After reversing defendant’s convictions and remanding the cause for a new trial,

the appellate court considered whether the trial court properly denied defendant’s

request to introduce evidence of the victim’s sexual history under an exception to the

Illinois rape shield statute (725 ILCS 5/115-7 (West 2008)). Following the rationale in

People v. Anthony Roy W., 324 Ill. App. 3d 181 (2001), the court held that the exclusion

of evidence that the victim had engaged in sexual intercourse with someone other than

defendant in the days prior to the assault was an abuse of the trial court’s discretion.

Consequently, the court directed the trial court to admit the evidence on retrial. 2012 IL

App (1st) 101573, ¶ 49.

¶ 114 In examining evidentiary rulings, we apply a deferential standard of review,

considering only whether they were an abuse of the trial court’s discretion. To establish

an abuse of discretion, defendant must persuade us that the trial court’s decision to

exclude the evidence was “arbitrary, fanciful or unreasonable or where no reasonable

man would take the view adopted by the trial court.” (Internal quotation marks

omitted.) People v. Santos, 211 Ill. 2d 395, 401 (2004). We have previously noted the

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“absolute” nature of the rape shield bar, subject only to two narrow statutory

exceptions for “evidence concerning the past sexual conduct of the alleged victim [or

corroborating witness] *** with the accused” and evidence that is “constitutionally

required to be admitted.” (Internal quotation marks omitted.) Santos, 211 Ill. 2d at 401.

See also 725 ILCS 5/115-7(a) (West 2008).

¶ 115 Here, the State’s argument against admission of the evidence relies on the

similarities between this case and Santos, while defendant claims that this case more

closely resembles Anthony. We find neither case to be dispositive here because both are

factually distinguishable.

¶ 116 The true core of defendant’s argument is based on dicta in People v. Sandoval, 135

Ill. 2d 159, 185 (1990), stating that one “extraordinary circumstance[ ]” potentially

satisfying the constitutional requirement exception to the rape shield statute is an offer

of evidence providing an alternative explanation for the victim’s observed injuries.

Here, the injury at issue was noted by the victim’s examining physician, who testified

that she had “some” cervical redness that was “consistent with sexual intercourse.” In a

sidebar, defense counsel requested permission “to go into whether or not sperm was

found in [the victim’s] vagina, which would otherwise be protected by the rape shield,

but [defendant] has a constitutional right, I think, to bring out that evidence when

there’s an inference that she had recent sexual intercourse and he’s denying that he had

sexual intercourse with her, and she had sexual intercourse, apparently, with someone

else within 72 hours, knowing how far—that’s about how long sperm lasts.”

¶ 117 In ruling on the request, the trial judge noted that the physician testified to the

presence of some redness but “did not say it was the result of a rape. He did not even

trace it back to this incident.” The trial court added that “[i]t would be different, ***, if

we were in a situation if he said he found some injury that was consistent with forced

sexual act within the last few hours. Then we’d be in a different ballpark, so I think

based on how he’s described it and how he described the significance or insignificance

of that finding to this jury. Respectfully your request is denied.” The appellate court,

however, reversed that ruling and permitted defendant, “on retrial, if the State

introduces any evidence of [the victim’s] physical condition to show that she had

intercourse within a day or two of the medical examination.” 2012 IL App (1st)

101573, ¶ 49.

¶ 118 Before this court, the State argues that defendant failed to provide adequate support

for his request to admit the evidence under the rape shield exception to create an

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appealable issue (People v. Maxwell, 2011 IL App (4th) 100434, ¶¶ 76-87; People v.

Grant, 232 Ill. App. 3d 93, 103-05 (1992)). We agree in light of the important purpose

underlying the rape shield statute, namely “to prevent the defendant from harassing and

humiliating the prosecutrix at trial with evidence of *** specific acts of sexual conduct

with persons other than the defendant” (Sandoval, 135 Ill. 2d at 180). To preserve a

claim on appeal, a party is required to make “considerably detailed and specific” offers

of proof after a denial of a request to admit evidence if the substance of the witness’s

answer is unclear. See People v. Peeples, 155 Ill. 2d 422, 457 (1993).

¶ 119 Here, the only support offered for defense counsel’s proffered evidence was his

speculation that the victim’s cervical inflammation occurred three days before the

assault because sperm could persist for 72 hours. No medical testimony was offered to

back up counsel’s bare assertion, and counsel did not take the opportunity to ask the

examining physician, or any other expert, questions about the general persistence of

cervical inflammation that could have provided a sufficiently detailed offer of proof.

¶ 120 Although defendant asserts the futility of asking additional questions because the

examining physician had already testified that he could not tell when the injury

occurred, our review of the record contradicts defendant’s position. On

cross-examination, the examining physician was asked, “You don’t know exactly when

[the cervical inflammation] occurred; is that correct, sir?” The physician responded, “I

don’t know when that occurred.” Contrary to defendant’s contention, the physician’s

response did not establish that he had a medical opinion on whether the redness could

have persisted for three days. The question asked only if the witness could tell “exactly

when” the inflammation occurred.

¶ 121 This distinction was not lost on defense counsel, who later used the inconclusive

nature of the physician’s testimony to establish his theory of the case during closing

arguments. Defense counsel asserted that the cervical redness:

“could be caused by anything. It could be a rash. I don’t know. The doctor says

there’s a redness in the cervix, and it could be caused by consensual or

nonconsensual sex. Consensual or nonconsensual sex, when? The doctor didn’t

say. Within the last three hours, within the last ten hours, the last three days, the

last four days? How does that prove he had sex with her? It doesn’t. It’s

meaningless.”

¶ 122 During his closing argument, counsel also noted the absence of any DNA from

defendant, arguing “the greatest meaning of anything in this case is no DNA. Don’t let

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them kid you about that. They can find DNA from saliva on a chicken bone that’s six

months old after you chew on it. There’s no DNA in this case. And according to them,

he’s all over her. He’s all over her. She can’t move.” After reviewing the testimony

elicited from the witnesses and defense counsel’s closing argument, we conclude that,

as in Sandoval, the trial court’s exclusion of the evidence of the victim’s sexual history

did not prevent defendant from presenting the jury with his theory of the case.

Sandoval, 135 Ill. 2d at 181.

¶ 123 Before this court, defendant also argues that the medical sources cited in the State’s

brief indicate cervical inflammation could, in fact, last three days. It was, however,

defense counsel’s burden to provide a sufficiently detailed offer of proof at trial, not

months or years later on appeal. See People v. Canulli, 341 Ill. App. 3d 361, 367-68

(2003) (stating that appellate review is limited to the record on appeal). When

reviewing an evidentiary ruling for an abuse of discretion, common sense dictates that

we evaluate the exercise of that discretion in light of the evidence actually before the

trial judge. Without a sufficient offer of proof, the trial court could not have known if

any witness would have testified that the victim’s cervical redness could have persisted

for three days or the possible underlying basis for that opinion. Because defendant did

not provide a sufficient offer of proof, defendant’s claim that the trial court erred in

denying his evidentiary request is not subject to review. See Peeples, 155 Ill. 2d at

457-58 (explaining courts’ inability to review appeal when an offer of proof is not

“considerably detailed and specific,” leaving the substance and basis of the witness’s

testimony unclear). Therefore, we reject the portion of the appellate court opinion

instructing the trial court to admit on remand the evidence requested by defendant.

¶ 124 E. The Excessive Sentence Claim

¶ 125 Lastly, because this court declined to grant defendant relief from his convictions or

sentence on another basis, he asks that this cause be remanded to the appellate court for

initial consideration of his excessive-sentence claim. The appellate court did not reach

that issue in its prior judgment, and we agree with defendant that it should decide that

question on remand from this court.

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¶ 126 III. CONCLUSION

¶ 127 For the reasons stated, we conclude that the police made a reasonable attempt to

contact a concerned adult on behalf of the juvenile defendant, as required by section

5-405(2) of the Juvenile Court Act of 1987 (705 ILCS 405/5-405(2) (West 2008)), the

youth officer’s conduct was not improper, and the trial court did not err by admitting

defendant’s inculpatory statement. We also conclude that defendant failed to establish

the prejudice necessary to show that defense counsel provided ineffective assistance

during the hearing on the motion to suppress defendant’s statement. We reject

defendant’s constitutional challenges to Illinois’s mandatory juvenile transfer

provision (705 ILCS 405/5-130 (West 2008)). Finally, we determine that, contrary to

dicta in the appellate court judgment, the trial court properly applied the Illinois rape

shield statute (725 ILCS 5/115-7(a) (West 2008)) to deny defendant’s request to

introduce evidence of the victim’s sexual history. Accordingly, we reverse the

appellate court judgment. We remand the cause to the appellate court for consideration

of defendant’s claim that his sentence is excessive.

¶ 128 Appellate court judgment reversed.

¶ 129 Cause remanded.

¶ 130 JUSTICE THEIS, dissenting:

¶ 131 I join my colleagues in parts II.A., II.B., II.C.1, II.D., and II.E. of the majority

opinion. I do not join them in part II.C.2. I believe that the excluded jurisdiction

provision, or automatic transfer statute, of the Juvenile Court Act (705 ILCS 405/5-130

(West 2008)) violates the eighth amendment of the United States Constitution (U.S.

Const., amend. VIII) and article I, section 11 of the Illinois Constitution (Ill. Const.

1970, art. I, § 11).

¶ 132 The eighth amendment, applicable to the states through the fourteenth amendment

(see Furman v. Georgia, 408 U.S. 238, 239 (1972) (per curiam)), forbids “cruel and

unusual punishment.” Article I, section 11 requires, “All 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 first part of our

constitutional clause is related to its federal counterpart (see People v. McDonald, 168

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Ill. 2d 420, 455-56 (1995); People v. Clemons, 2012 IL 107821, ¶ 40), and both

concern punishment or penalties. According to the majority, the plain language of

those clauses essentially decides this case. The majority asserts that because “neither

clause applies unless a punishment or penalty has been imposed” (supra ¶ 101), and

“the purpose of the transfer statute is to protect the public from the most common

violent crimes, not to punish” (supra ¶ 105), the defendant’s eighth amendment

challenge fails. The majority’s approach is ostensibly based upon a brief statement in

People v. J.S., 103 Ill. 2d 395, 404 (1984), where the court sketched, and accepted as

reasonable, the State’s offer of a possible rationale for the statute. The majority’s

approach also tracks that of the appellate court in a string of recent cases. See, e.g.,

People v. Jackson, 2012 IL App (1st) 100398, ¶ 24 (“The automatic transfer provision

does not dictate any form of punishment as that term is used throughout criminal

statutes.”); People v. Salas, 2011 IL App (1st) 091880, ¶ 68.

¶ 133 In my view, that approach is overly simplistic, and elevates form over substance.

The automatic transfer statute may indeed protect the public, but it does so by

mandatorily placing juveniles in criminal court based only on their offenses, and

thereby exposing them to vastly higher adult sentences and, in effect, punishing them.

“[T]he true impact and frequently articulated goal of transfer proceedings” is “to

subject the juvenile offender to the harsher sentencing scheme only available in the

adult justice system.” Jenny E. Carroll, Rethinking the Constitutional Criminal

Procedure of Juvenile Transfer Hearings: Apprendi, Adult Punishment, and Adult

Process, 61 Hastings L.J. 175, 180-81 (2009); see People v. P.H., 145 Ill. 2d 209, 231

(1991) (asserting that the purpose of the “gang transfer” provision of the Act is

decreasing the level of gang violence “by increasing the likelihood of criminal

prosecution and sentencing”).

¶ 134 “ ‘Adult time for adult crimes’ became the rallying cry for politicians across the

country, leading to changes in the law in almost every jurisdiction between 1992 and

1999. These laws extended adult court jurisdiction over youths by lowering the age

requirement for adult court prosecution, expanding the range of offenses which could

subject a juvenile to adult prosecution, and shifting the decision over who remains in

juvenile court and who goes to the criminal court from judges to prosecutors or

legislators.” Steven A. Drizin & Greg Luloff, Are Juvenile Courts a Breeding Ground

for Wrongful Convictions?, 34 N. Ky. L. Rev. 257, 265 (2007).

¶ 135 At the leading edge of that wave of such laws, our original automatic transfer

statute, and the precursor to section 5-130, was enacted in 1982. See Ill. Rev. Stat.

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1982, ch. 37, ¶ 702-7(6)(a) (recodified as Ill. Rev. Stat. 1991, ch. 37, ¶ 805-4(6)(a)).

There were spirited debates in both houses of the General Assembly. These debates are

highly relevant in divining the purpose behind the statute. See People v. Adams, 144 Ill.

2d 381, 387 (1991). They leave little doubt that legislators—both supporters of the bill

and supporters of the amendments—considered the statute to be punitive.

¶ 136 In the Senate, Senator Dawn Clark Netsch offered an amendment to the bill that

ultimately became the automatic transfer statute. Senator Netsch’s amendment did not

disagree with “the basic premise that there are a number of juveniles who are violent

offenders, and who ought not to be subjected, if you will, to the juvenile court system

but ought to be a part of the regular criminal court system.” 82d Ill. Gen. Assem.,

Senate Proceedings, May 26, 1982, at 34. Instead, the amendment would have

substituted automatic transfers for certain violent felonies with automatic hearings

before juvenile court judges, who would exercise discretion in deciding where a

juvenile would be tried. Id. She stated, “[P]hilosophically, it seems to me that there

ought to be some review by the presiding juvenile judge and that is what this

amendment is intended to offer as an option.” Id. at 35.

¶ 137 Senator Bowers, speaking against an amendment, suggested, “if you want to call

them juveniles, and if you want to pretend they’re juveniles, that’s fine, but under

today’s society and today’s societal acts that these people are committing, I don’t think

they ought to be treated that way.” Id. at 38. Senator Collins, speaking for an

amendment, stated, “I, for one, do not want to coddle criminals … hardened criminals,

and I do realize the necessity for us to try and do something about *** those youths

who get away under disguise of being youth, and who commit[ ] serious and hideous

crime.” Id. at 40. Also in support of an amendment, Senator DeAngelis talked about

perceptions: “In this particular instance, with the way the bill is right now, it’s

perceived that this is going to offer greater punishment to the juvenile[s] because they

have committed a more severe crime.” Id. at 43. And Senator Netsch, in closing,

insisted that the amendment was not “soft-on-crime.” Id. at 44.

¶ 138 The debate in the House of Representatives was longer and, at times, more

emotional. Representative Getty offered an amendment similar to Senator Netsch’s

amendment, which would have created a rebuttable presumption in favor of transfer,

but would also have given juvenile court judges some discretion over transfer

decisions. 82d Ill. Gen. Assem., House Proceedings, June 23, 1982, at 138.

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¶ 139 Representative Daniels, speaking against an amendment to the bill, offered an

example:

“ ‘If a fifteen-year-old is convicted of murder under the Juvenile Act, the max

sentence he can get is a period of six years, and with good time off, he’ll serve

three years’ time for a murder—three years’ time. *** I recall a conversation

that I had with [then-Cook County State’s Attorney] Rich[ard] Daley last year,

*** and he said to me, *** ‘crime sure is a real problem in this country today,

but the crime that I fear the most is the crime that’s being committed today by

the juveniles ***”.’ ” Id. at 142-43.

¶ 140 Representative Johnson had similar thoughts:

“ ‘[J]uvenile justice, juvenile crime, is an absolute joke in Illinois and around

the country. *** The purpose of this Bill *** is to say to the people of Illinois,

and we hope the same example is followed nation-wide, that the victims of a

juvenile rapist, armed robber or murderer are just as victimized as if the

fortuitous situation [occurred] where the perpetrator of the crime was eighteen

years of age. It’s an absolute necessity that we have a mandatory transfer. ***

[O]nce charged, a rapist, an armed robber, a murderer and so forth, ought to be

charged as an adult and tried as an adult, and handled, except for incarceration

purposes, through the adult criminal justice system ***.’ ” Id. at 144-45.

¶ 141 Representative Kosinski, speaking against an amendment, had “little sympathy for

some juveniles today, who through sophistication of the media *** and the education

of their peers—are hiding behind the realities of our law. I think it’s abominable that

we permit this to occur, and on that basis, I feel we should have an extremely strong

Bill” with automatic transfers, and not automatic hearings. Id. at 145. Representative

Stearney, also speaking against an amendment, was more stark in his comments:

“ ‘A young person, a 15 or 16 year old *** values no life whatsoever; he’ll take

my life simply to get a few dollars. That is the person that we must take off the

streets. If we’re going to have a semblance of organized society in the large

metropolitan areas of this state, we’ve got to remove the juvenile offender, that

person that is committing serious crimes ***.’ ” Id. at 148-49.

¶ 142 Representative Bullock echoed that theme, which he called a “law and order issue,”

stating,

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“I’m going to vote to take kids like that off the street before they hurt my kid

and someone’s else’s kid. And I think that if a kid, 15 year old, takes a shotgun

and goes out and robs someone, that he ought to be treated the same way we

treat an adult; and that’s to put him in jail, throw the key away, and we won’t

have to worry about that menace any more.” Id. at 150-51.

¶ 143 Representative Ewell also touched upon that, but in the context of prison space:

“ ‘In fact, if you have to triple the space, you’ll triple the space in order to

eliminate this heinous crime. *** Murder, rape, armed robbery, and deviate

sexual assault are indeed acts that ought to be transferred automatically, so the

message would go, not to the people who are dead and not to the victims, but to

the people who commit these heinous offenses.’ ” Id. at 153-54.

¶ 144 And Representative Bowman, speaking for a fiscal note on the bill, noted that the

proponents of the bill asserted that it would send many more juveniles into the criminal

justice system: “ ‘They are the ones who are suggesting this is going to keep more

criminals off the street.’ ” Id. at 162.

¶ 145 In the final debate on the bill, Representative Frederick mentioned that

Representative Getty’s amendment would have “ ‘allowed a modicum of

individualization, rather than carte blanche transfer of all juveniles involved in very

serious crime.’ ” But she insisted that all House members still “ ‘want to see juveniles

who commit serious adult crimes such as murder and rape *** brought to justice.’ ”

82d Ill. Gen. Assem., House Proceedings, June 24, 1982, at 70.

¶ 146 Representative Bullock spoke in favor of the bill:

“ ‘[W]hat we’re talking about in this legislation is providing once and for all a

clear statement of intent and a clear statement of principle to the victims of

crime, not only in Cook County, but in the State of Illinois. *** And what we

say in effect is that those individuals who are street-wise juveniles should be

given the same type of consideration before a bar of justice, of an adult who is

street-wise and happens not to be a juvenile. *** We are not going to allow ***

street-wise juveniles to enter into these acts and not be punished accordingly.’ ”

Id. at 71-72.

¶ 147 Representative Reilly agreed, focusing on the main point of the bill—automatic

transfer: “ ‘A kid, fifteen, sixteen years old who’s committed a murder, who’s

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committed a rape, who’s committed a very serious crime, is not a kid in the sense that

we ought to be concerned about that.’ ” Id. at 73.

¶ 148 Representative Currie summarized the intent of the bill’s sponsors, who were

“ ‘selling this as a measure that will get tough on juvenile crime.’ ” Id. at 74. And

Representative Henry explained his vote like this:

“ ‘I’m amazed at those who are against this Bill. I would like to know how

many youngsters in their districts are committing murder, raping *** senior

citizens, robbing the poor, and *** dealing dope in their communities. I would

just like to know, because I’m sick and tired of bleeding hearts telling me, and

telling some of my friends what we can and we cannot support. I would like to

take some of those juveniles, those tough juveniles, and transport them all to

their districts and let them deal with them.’ ” Id. at 79.

¶ 149 Even after its initial enactment, the punitive focus of the automatic transfer statute

remained unchanged. In the debates surrounding the bill that later became Public Act

91-15, which added aggravated battery with a firearm on or around school property to

the list of enumerated offenses excluded from juvenile court jurisdiction, the House

sponsor, Representative Schmitz, agreed with Representative Turner that its purpose

was to obtain “very meaningful” and “strict” prosecution—essentially, to “get tough on

crime” and juveniles who use or bring guns to school. 91st Ill. Gen. Assem., House

Proceedings, May 4, 1999, at 13-14. Representative Turner even queried why anyone

“ ‘would not be totally supportive of transferring these kinds of cases to the adult court

where they can be reckoned with on a harsh basis because they should be dealt with on

a harsh basis.’ ” Id. at 14. Further, a bill like the one that became Public Act 98-61,

which left all automatic transfers in place, “ ‘is not, in fact, soft on crime.’ ” 98th Ill.

Gen. Assem., House Proceedings, April 16, 2013, at 48 (statements of Representative

Currie).

¶ 150 These euphemisms indisputably mean punishment, and, in the minds of the

legislators on either side of the proverbial aisle, so do automatic transfers. Other courts

have recognized this for years. Defendant relies upon United States v. Juvenile Male,

819 F.2d 468 (4th Cir. 1987). There, a 15-year-old juvenile was charged with three

murders on a marine base. At the time of the offenses, the federal Juvenile Delinquency

Act did not allow the government to prosecute minors as adults. Congress then

amended the statute to provide for transfers. The federal district court determined that

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the amended statute could be applied retroactively because it was a procedural change

in the law.

¶ 151 The federal circuit court disagreed, holding that the amended statute could not be

applied retroactively because it plainly imposed greater, more burdensome, and more

onerous punishment by exposing the juvenile to a much more severe sentence. Id. at

470. The court explained:

“The 1984 amendment is ‘procedural’ only in the most superficial, formal

sense, in that it authorizes the government to move to ‘transfer’ the juvenile to

the district court for trial as an adult. Such a ‘transfer’ is no mere change in

venue ***; it is instead a means by which to impose on certain juveniles the

harsher sentences applicable to adults. The significance of the ‘transfer’ is not

that the transferred defendant must appear in a different court, the district court,

and defend himself according to the procedural rules of the district court instead

of those of a juvenile court. Rather, its significance is that the transferred

defendant is suddenly subject to much more severe punishment. Only by

closing one’s eyes to the actual effect of the transfer can one label this radical

increase in the applicable punishment a procedural change.” Id. at 471.

¶ 152 Accord Helton v. Fauver, 930 F.2d 1040, 1045 (3d Cir. 1991) (holding that “it is

indisputable that [the defendant’s] punishment was increased as a result of the waiver

of juvenile court jurisdiction”); Saucedo v. Superior Court, 946 P.2d 908, 911 (Ariz.

Ct. App. 1997).

¶ 153 The majority rejects defendant’s line of reasoning, but not on its merits. The

majority has chosen to remain blind to the true effect of automatic transfers on the

grounds that that effect was observed in ex post facto clause cases. But the holdings in

those cases are not so easily cabined, and their reasoning is persuasive. The key is not

whether the defendant here has raised an ex post facto clause challenge to the automatic

transfer statute, but whether that provision is punitive. In my view, it is.

¶ 154 That conclusion, however, does not end the inquiry. What makes the automatic

transfer statute unconstitutional is not that it is punishment, but that it runs afoul of

“evolving standards of decency that mark the progress of a maturing society.” Trop v.

Dulles, 356 U.S. 86, 100-01 (1958) (plurality op.). Here is where Roper v. Simmons,

543 U.S. 551 (2005), Graham v. Florida, 560 U.S. 48 (2010), and Miller v. Alabama,

567 U.S. ___, 132 S. Ct. 2455 (2012), enter our conversation. Those cases have

incrementally led to a general rule that “youth matters,” so statutes with mandatory

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sentencing consequences for juveniles that fail to account for their diminished

culpability and individual characteristics are constitutionally infirm. See id. at ___, 132

S. Ct. at 2471. That rule, I believe, dictates the proper outcome of this case.

¶ 155 In Roper, the Supreme Court considered whether the eighth amendment prohibited

capital sentences for juveniles who commit murder. The Court stated that the cruel and

unusual punishment clause, like other expansive language of the Constitution, “must be

interpreted according to its text, by considering history, tradition, and precedent.”

Roper, 543 U.S. at 560. To do so, the Court reiterated that it must refer to “ ‘the

evolving standards of decency that mark the progress of a maturing society’ to

determine which punishments are so disproportionate as to be cruel and unusual.” Id. at

561 (quoting Trop, 356 U.S. at 100-01). According to the Court, the beginning point of

the analysis is “a review of objective indicia of consensus, as expressed in particular by

the enactments of legislatures” regarding the challenged punishment, followed by an

exercise of independent judgment as to whether that punishment is indeed

disproportionate. Id. at 564.

¶ 156 The Supreme Court determined that there was a national consensus against capital

sentences for juveniles, shown by the fact that 30 states prohibited the juvenile death

penalty, and the other 20 states practiced it infrequently. Id. at 564-67. The Court then

turned to the other part of its analysis: its own judgment about the proportionality of

capital sentences for juveniles. Capital sentences should be reserved for those offenders

whose extreme culpability warrants such a sanction (id. at 568), but “[t]hree general

differences between juveniles under 18 and adults demonstrate that juvenile offenders

cannot with reliability be classified among the worst offenders” (id. at 569).

“First, as any parent knows and as the scientific and sociological studies ***

tend to confirm, ‘[a] lack of maturity and an underdeveloped sense of

responsibility are found in youth more often than in adults and are more

understandable among the young. These qualities often result in impetuous and

ill-considered actions and decisions.’ Johnson [v. Texas, 509 U.S. 350, 367

(1993)]; see also Eddings [v. Oklahoma, 455 U.S. 104, 115-16 (1982)] (‘Even

the normal 16-year-old customarily lacks the maturity of an adult’). It has been

noted that ‘adolescents are overrepresented statistically in virtually every

category of reckless behavior.’ Arnett, Reckless Behavior in Adolescence: A

Developmental Perspective, 12 Developmental Rev. 339 (1992). ***

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The second area of difference is that juveniles are more vulnerable or

susceptible to negative influences and outside pressures, including peer

pressure. Eddings, [455 U.S.] at 115 (‘[Y]outh 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’). This is explained in part by the

prevailing circumstance that juveniles have less control, or less experience with

control, over their own environment. See Steinberg & Scott, Less Guilty by

Reason of Adolescence: Developmental Immaturity, Diminished

Responsibility, and the Juvenile Death Penalty, 58 Am. Psychologist 1009,

1014 (2003) *** (‘[A]s legal minors, [juveniles] lack the freedom that adults

have to extricate themselves from a criminogenic setting’).

The third broad difference is that the character of a juvenile is not as well

formed as that of an adult. The personality traits of juveniles are more

transitory, less fixed. See generally E. Erikson, Identity: Youth and Crisis

(1968).” Roper, 543 at 569-70.

¶ 157 According to the Court, these differences militate against any conclusion that

juveniles fall among the worst offenders, and their “diminished culpability” means the

penological justifications for the death penalty—retribution and deterrence—apply to

them with less force. Id. at 570-71. As for retribution, the Court noted that if most adult

murderers are not culpable enough to receive capital sentences, juvenile murderers

certainly are not: “Retribution is not proportional if the law’s most severe penalty is

imposed on one whose culpability or blameworthiness is diminished, to a substantial

degree, by reason of youth and immaturity.” Id. at 571. As for deterrence, the Court

noted that it remains unclear whether the death penalty factors into the calculus of

juvenile murders: “[T]he absence of evidence of deterrent effect is of special concern

because the same characteristics that render juveniles less culpable than adults suggest

as well that juveniles will be less susceptible to deterrence.” Id.

¶ 158 In Graham, the Court considered whether the eighth amendment prohibited

life-without-parole sentences for juveniles who commit nonhomicide offenses. The

Court stated that its eighth amendment jurisprudence could be broken into two groups:

cases involving specific challenges to term-of-years sentences, and cases involving

general challenges to the propriety of certain sentences for certain offenders. Graham,

560 U.S. at 59. The second group has typically concerned the death penalty. Id. at 60.

In that context, the Court has outlawed capital sentences for defendants guilty of

nonhomicide offenses, as well as for defendants who fall into certain categories,

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including juveniles. Id. at 61 (citing Roper, 543 U.S. 551). The analysis used in the

cases adopting categorical bans on capital sentences has two steps: The Court initially

considers objective indicia of society’s standards, as expressed in legislation across the

country regarding such sentences, then it exercises its own independent judgment

about the constitutionality of such sentences. Id.

¶ 159 The Court found only a mild consensus against life-without-parole sentences for

juveniles guilty of nonhomicide offenses, but noted that it faced a similar situation

more than 20 years earlier in Thompson v. Oklahoma, 487 U.S. 815 (1988) (plurality

op.), where it concluded that capital sentences for juveniles under age 16 violated the

cruel and unusual punishment clause. Graham, 560 U.S. at 66. There, and relevant to

the case before us, a plurality of the Court stated that the fact that many states

considered juveniles between ages 15 and 18 old enough to be tried in criminal court

did not mean those states had made a judgment about what sentences those juveniles

should receive. Id. (quoting Thompson, 487 U.S. at 826 n.24). The Court stated:

“Many States have chosen to move away from juvenile court systems and to

allow juveniles to be transferred to, or charged directly in, adult court under

certain circumstances. Once in adult court, a juvenile offender may receive the

same sentence as would be given to an adult offender, including a life without

parole sentence. But the fact that transfer and direct charging laws make life

without parole possible for some juvenile nonhomicide offenders does not

justify a judgment that many States intended to subject such offenders to life

without parole sentences.

*** [T]he statutory eligibility of a juvenile offender for life without parole

does not indicate that the penalty has been endorsed through deliberate,

express, and full legislative consideration.” Graham, 560 U.S. at 66-67.

¶ 160 The Court then turned to its own task of interpreting the eighth amendment. That

task requires consideration of the culpability of the offenders in light of their crimes

and characteristics, the severity of the sentence, and the sentence’s relation to

“legitimate penological goals,” including retribution, deterrence, incapacitation, and

rehabilitation. Id. at 67, 71. The Court returned to Roper, and reiterated that juveniles

have less culpability than adults: they generally display a lack of maturity and an

underdeveloped sense of responsibility, making them more vulnerable to negative

influences and outside pressures. Id. at 68 (discussing Roper). Juveniles should not be

absolved of their transgressions, but they are not as morally reprehensible, and,

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consequently, not as deserving of the most severe punishments. Id. (quoting Thompson,

487 U.S. at 835). The Court emphasized:

“[D]evelopments in psychology and brain science continue to show

fundamental differences between juvenile and adult minds. For example, parts

of the brain involved in behavior control continue to mature through late

adolescence. [Citations.] Juveniles are more capable of change than are adults,

and their actions are less likely to be evidence of ‘irretrievably depraved

character’ than are the actions of adults. Roper, 543 U.S., at 570. It remains true

that ‘[f]rom a moral standpoint it would be misguided to equate the failings of a

minor with those of an adult, for a greater possibility exists that a

minor’s character deficiencies will be reformed.’ Ibid.” Id.

The Court also observed that a life-without-parole sentence is the second most severe

penalty permitted by law. Id. at 69.

¶ 161 Turning to penological goals, the Court stated that retribution could not support

life-without-parole sentences for juveniles: The case for retribution is just not as strong

with a minor as with an adult. Id. at 71 (quoting Roper, 543 U.S. at 571). The Court

further stated that deterrence could not support such a sentence because juveniles are

less likely to consider possible punishment when making decisions due to their

impulsiveness and impetuosity. Id. at 72. Regarding incapacitation, the Court stated,

“To justify life without parole on the assumption that the juvenile offender forever will

be a danger to society requires the sentencer to make a judgment that the juvenile is

incorrigible. The characteristics of juveniles make that judgment questionable.” Id. at

72-73. Stated differently, “ ‘incorrigibility is inconsistent with youth.’ ” Id. at 73

(quoting Workman v. Commonwealth, 429 S.W.2d 374, 378 (Ky. Ct. App. 1968)).

Finally, the Court stated that rehabilitation cannot justify a life-without-parole sentence

because the penalty “forswears altogether the rehabilitative ideal.” Id. at 74. Such a

judgment is not appropriate in light of juveniles’ capacity for change. Id. They should

not be deprived of the opportunity to achieve maturity of judgment and self-recognition

of human worth and potential. Id. at 79. The Court concluded that an offender’s age is

relevant to the eighth amendment, and “criminal procedure laws that fail to take

defendants’ youthfulness into account at all would be flawed.” Id. at 76.

¶ 162 In Miller, the Court considered whether the eighth amendment prohibited

mandatory life-without-parole sentences for juveniles who commit murder. The Court

began by examining two lines of precedent: the categorical ban cases like Roper and

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Graham, and capital cases where the Court has required the sentence to consider the

characteristics of the defendant and the circumstances of the offense before imposing

the death penalty. According to the Court, Roper and Graham establish that “children

are constitutionally different from adults for purposes of sentencing.” Miller, 567 U.S.

at ___, 132 S. Ct. at 2464. Those cases relied on three significant gaps between

juveniles and adults. First, juveniles lack of maturity and a developed sense of

responsibility. Id. at ___, 132 S. Ct. at 2464 (quoting Roper, 543 U.S. at 569). Second,

juveniles are more vulnerable to negative influences, so they lack the ability to

extricate themselves from crime-producing settings. Id. at ___, 132 S. Ct. at 2464.

Third, juveniles lack well formed and fixed characters, and their actions are not

indicative of irretrievable depravity. Id. at ___, 132 S. Ct. at 2464. Those were not only

supported by common sense, but also by social science. Id. at ___. 132 S. Ct. at 2464.

The Court noted that “none of what [Graham] said about children—about their

distinctive (and transitory) mental traits and environmental vulnerabilities—is

crime-specific. *** So Graham’s reasoning implicates any life-without-parole

sentence imposed on a juvenile, even as its categorical bar relates only to nonhomicide

offenses.” Id. at ___, 132 S. Ct. at 2465. In short, “youth matters” in determining the

appropriateness of a life-without-parole sentence. Id. at ___, 132 S. Ct. at 2465.

¶ 163 The Court stated that the mandatory penalty schemes there prevented the sentencer

from taking account of these central considerations:

“By removing youth from the balance—by subjecting a juvenile to the same

life-without-parole sentence applicable to an adult—these laws prohibit a

sentencing authority from assessing whether the law’s harshest term of

imprisonment proportionately punishes a juvenile offender. That contravenes

Graham’s (and also Roper’s) foundational principle: that imposition of a

State’s most severe penalties on juvenile offenders cannot proceed as though

they were not children.” Id. at ___, 132 S. Ct. at 2466.

¶ 164 The Court concluded that mandatory life-without-parole sentences for juveniles

violate the eighth amendment (id. at ___, 132 S. Ct. at 2469), but insisted that its

holding, while flowing from its holdings in Roper and Graham, was not a categorical

bar like those imposed there (id. at ___, 132 S. Ct. at 2471). Instead, the Court

mandated only that the sentencer consider an offender’s youth and its attendant

characteristics before imposing such a penalty. Id. at ___, 132 S. Ct. at 2471. By

treating every juvenile as an adult, the sentencer “misses too much,” including the

juvenile’s chronological age and immaturity, his family and home environment, and

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his degree of participation in the offense, as well as the fact that he might have been

charged and convicted of a lesser offense if not for his own incompetencies—“for

example, his inability to deal with police officers or prosecutors *** or his incapacity to

assist his own attorneys.” Id. at ___, 132 S. Ct. at 2468.

¶ 165 The Court rejected the states’ arguments that a national consensus in favor of

mandatory life-without-parole sentences for juveniles exists. Id. at ___, 132 S. Ct. at

2471. As it did in Graham, the Court downplayed the fact that a majority of states allow

such sentences. Id. at ___, 132 S. Ct. at 2471. “[S]imply counting them would present a

distorted view,” because most of those states do not have separate penalty provisions

for juveniles tried in criminal court and impose penalties regardless of age. Id. at ___,

132 S. Ct. at 2471. And the presence of discretion in some states’ transfer statutes does

not make the consensus stronger because many states use mandatory transfer systems:

“Of the 29 relevant jurisdictions, about half place at least some juvenile

homicide offenders in adult court automatically, with no apparent opportunity

to seek transfer to juvenile court. Moreover, several States at times lodge this

decision exclusively in the hands of prosecutors, again with no statutory

mechanism for judicial reevaluation. And those prosecutorial discretion laws

are usually silent regarding standards, protocols, or appropriate considerations

for decisionmaking.” (Internal quotation marks omitted.) Id. at ___, 132 S. Ct.

at 2474.

Notably, the Court cited, not approvingly, section 5-130 as one of the automatic

transfer statutes. See id. at ___ n.15, 132 S. Ct. at 2474 n.15.

¶ 166 In those three cases, the Court outlined the proper analysis for reviewing the

constitutionality of the automatic transfer statute under the cruel and unusual

punishment clause and the proportionate penalties clause. First, the court must consider

objective indicia of society’s standards, as expressed in legislation across the country

regarding automatic transfers. Second, the court must exercise its own independent

judgment and consider the culpability of juveniles subject to that provision, the severity

of their sentences due to that provision, and the legitimate penological goals behind

that provision—that is, how well it serves the state’s interest in the four goals that the

Supreme Court has recognized as legitimate: retribution, deterrence, incapacitation,

and rehabilitation. See Graham, 560 U.S. at 71 (citing Ewing v. California, 538 U.S.

11, 25 (2003) (plurality op.)).

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¶ 167 On the first point, society’s standards have changed since 1982, when the General

Assembly first passed the automatic transfer statute. As the Supreme Court stated in

Miller, Illinois is now one of only 14 states with statutes that fail to provide juveniles

with an opportunity to seek transfer back to juvenile court, a fact of which the Supreme

Court is aware. Miller, 567 U.S. at ___ n.15, 132 S. Ct. at 2474 n.15. 1 Additionally, the

National Conference of State Legislatures has observed legislative initiatives between

2001 and 2011 that “reflect the trend in states to treat and rehabilitate youth in the

juvenile justice system instead of sending them to the more punitive-oriented adult

system.” Sarah A. Brown, Nat’l Conf. of St. Legislatures, Trends in Juvenile Justice

State Legislation: 2001-2011 5 (2012), available at http://www.ncsl.org/documents/cj/

trendsinjuvenilejustice.pdf. See Neelum Arya, Campaign for Youth Just., State Trends:

Legislative Victories from 2005 to 2010 Removing Youth from the Adult Criminal

Justice System 33 (2011), available at http://www.campaignforyouthjustice.org/

documents/CFYJ_State_Trends_Report.pdf (documenting a trend in ten states to

change transfer laws); see also People v. Willis, 2013 IL App (1st) 110233, ¶ 53 (“we

see a nationwide trend developing to treat juvenile offenders differently than adult

offenders”). 2

¶ 168 On the second point, an exercise of our independent judgment must be informed by

Roper, Graham, and Miller. Regarding culpability, every statement that the Court

made about juveniles, their psychological traits, and their developmental paths applies

with as much force in this case as those. Juveniles, like the defendant, are less culpable

than adults. Compared to adults, they lack maturity and a developed sense of

responsibility. See Roper, 543 U.S. at 569; Graham, 560 U.S. at 68; Miller, 567 U.S. at

___, 132 S. Ct. at 2464. Compared to adults, they are more vulnerable to negative

influences and outside pressures from family and peers, and have little control over

their own environments. See Roper, 543 U.S. at 569; Graham, 560 U.S. at 68; Miller,

567 U.S. at ___, 132 S. Ct. at 2464. And compared to adults, their characters are not

well formed, their traits are less fixed, and their behavior is less indicative of

1

As amici inform us, that number shrinks further in cases involving offenses that correspond with

aggravated criminal sexual assault in Illinois because only ten of those states allow automatic transfers

for such offenses.

2

That trend has reached Illinois. A bill to repeal section 5-130 is currently pending in the Illinois

House of Representatives. See 98th Ill. Gen. Assem., House Bill 4538, 2013 Sess. The bill, introduced

by Representative Nekritz and co-sponsored by seven other legislators, was approved by the House

Judiciary Committee in March, and has been re-referred to the House Rules Committee. Clearly, some

members of the General Assembly see the need for change.

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irretrievable depravity or irreparable corruption. Roper, 543 U.S. at 569-70; Graham,

560 U.S. at 68; Miller, 567 U.S. at ___, 132 S. Ct. at 2464.

¶ 169 Those decisions rely not only upon common sense, but also social science. Studies

have shown differences in adult and juvenile minds. The transient rashness, proclivity

for risk, and inability to assess consequences that mark the latter both lessen juveniles’

moral culpability and enhance their prospects for reform. See Roper, 543 U.S. at 570;

Graham, 560 U.S. at 68; Miller, 567 U.S. at ___, 132 S. Ct. at 2464-65.

¶ 170 Regarding sentence severity, Roper, Graham, and Miller are not “crime-specific”

(Miller, 567 U.S. at ___, 132 S. Ct. at 2465), but neither are they sentence-specific.

Juveniles are less deserving of harsh punishments (see Roper, 543 U.S. at 569;

Graham, 560 U.S. at 68; Miller, 567 U.S. at ___, 132 S. Ct. at 2464), particularly when

those punishments are mandatory, and the legislature has robbed the sentencer of the

ability to consider a juvenile’s individual characteristics in assessing whether such a

punishment is proportionate to the offense. Id. at ___, 132 S. Ct. at 2468 (“Graham and

Roper and our individualized sentencing cases alike teach that in imposing a State’s

harshest penalties, a sentencer misses too much if he treats every child as an adult.”).

That is what the automatic transfer statute does. The constitutional infirmity with the

statute is not that it exposes juveniles to adult sentences, but that it operates

automatically for those juveniles charged with certain offenses.

¶ 171 I am not suggesting that a categorical ban on all transfers is required. Just as there

are conceivable cases in which a life-without-parole sentence for a juvenile is

appropriate (see Miller, 567 U.S. at ___, 132 S. Ct. at 2469), there are cases in which

criminal court is the proper venue and a sentence under the Code of Corrections is

clearly appropriate. But, after Miller, that determination should be made on an

individual basis. In his dissent in People v. Pacheco, 2013 IL App (4th) 110409,

¶¶ 98-99 (Appleton, J., dissenting), appeal allowed, No. 116402 (Ill. Sept. 25, 2013),

Justice Appleton aptly commented:

“While there are juvenile offenders who may, based on the totality of the

circumstances, be eligible for adult prosecution, an automatic transfer provision

based on age and offense alone, without consideration of the wide variance in

the maturity, sophistication, intelligence, and social adjustment of any

particular juvenile offender, cannot pass constitutional muster. ***

To be sure, our legislature recognized the increase in violent, homicidal

crime committed by juvenile offenders and sought to address that problem. I

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believe it is the blanket transfer based on age that is the flaw in the legislature’s

response. Such decisions are better made on the circumstances of the offender

as well as the offense. In that sense, we should look to both the crime and the

nature of the criminal.” (Emphasis in original.)

¶ 172 Additionally, I recognize that the sentences available for the felonies enumerated

under the automatic transfer statute are not as serious as those addressed by the

Supreme Court, at least pursuant to our decision in People v. Davis, 2014 IL 115595

(holding that Miller applies retroactively). But we should still consider the fact that, if

convicted as adults, juveniles are much more likely not only to receive heavier

sentences than they would have in juvenile court, but also to receive sentences subject

to enhancements and other rules. This defendant is a good example. As a 15-year-old,

he was convicted on three counts of aggravated criminal sexual assault, sentenced to

three mandatory consecutive 12-year terms for a total term of 36 years’ imprisonment,

and, under truth-in-sentencing rules, must serve 85% of that term, or 30.6 years. He

will be eligible for release after his 45th birthday, and the prospects of him becoming a

useful member of society will be greatly diminished. See also People v. Jenkins, 2013

IL App (1st) 103006-U, appeal allowed, No. 115979 (Ill. Sept. 25, 2013) (involving an

automatic transfer for murder and a 45-year sentence due to a mandatory firearm

add-on and truth-in-sentencing rules); Pacheco, 2013 IL App (4th) 110409, appeal

allowed, No. 116402 (Ill. Sept. 25, 2013) (involving an automatic transfer for murder

based on accountability, and a 30-year sentence with no good-time credit due to

truth-in-sentencing rules); State v. Null, 836 N.W.2d 41, 71 (Iowa 2013) (holding that

lengthy term-of-years sentences are sufficient to trigger “Miller-type protections”);

State v. Lyle, No. 11-1339, 2014 WL 3537026 (Iowa Sept. 30, 2014) (holding that

mandatory minimum sentences for juveniles tried in criminal court violate the state

constitution’s provision against cruel and unusual punishment).

¶ 173 As for the four legitimate penological goals, Graham again is instructive. The case

for retribution is not as strong for juveniles. Additionally, as early as 1996, one

commentator had already criticized the inability of Illinois’s transfer provisions to

isolate serious offenders, as well as the ineffectiveness of those provisions in

sanctioning offenders. Elizabeth E. Clarke, A Case for Reinventing Juvenile Transfer,

47 Juv. & Fam. Ct. J. 3, 4 (Nov. 1996). Back then, automatic transfer provisions

resulted in criminal court proceedings against minors “who are, more often than not,

determined not to be dangerous enough to warrant imposition of a prison term.” Id. at

19. The statistics have remained largely the same, so that now “[t]he majority of cases

automatically transferred end up convicted for lesser offenses, offenses that could not

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have triggered transfer.” See Automatic Adult Prosecution of Children in Cook County,

Illinois. 2010-2012 (Juv. Just. Initiative, Evanston, Ill.), Apr. 2014, at 3, available at

http://jjustice.org/wordpress/wp-content/uploads/Automatic-Adult-Prosecution-of-

Children-in-Cook-County-IL.pdf (hereinafter Automatic Adult Prosecution).

¶ 174 Similarly, the case for deterrence is not as strong for juveniles. As early as 1993,

this court’s own Special Commission on the Administration of Justice (the Solovy

Commission) reported that an increasing number of juveniles were transferred to

criminal court in the first ten years of the automatic transfer regime without a

corresponding deterrent effect, but with a corresponding negative impact on minority

children. See Ill. S. Ct. Special Comm’n on the Admin. of Justice, Final Report Part II

(December 1993). The Solovy Commission even recommended that the General

Assembly consider a “waiver back” provision and an elimination of mandatory

minimum sentences for juveniles in automatic transfer cases. Id. And those conclusions

have only gained support. See Patrick Griffin et al., Trying Juveniles as Adults: An

Analysis of State Transfer Laws and Reporting, Juv. Offenders & Victims Nat’l Rep.

Series (Off. of Juv. Just. & Delinq. Prevention, D.C.), Sept. 2011, at 26, available at

https://www.ncjrs.gov/pdffiles1/ojjdp/232434.pdf (“the weight of the evidence

suggests that state transfer laws have little or no tendency to deter would-be juvenile

criminals”); Richard E. Redding, Juvenile Transfer Laws: An Effective Deterrent to

Delinquency?, Juv. Just. Bull. (Off. of Juv. Just. & Delinq. Prevention, D.C.), June

2010, at 4, available at https://www.ncjrs.gov/pdffiles1/ojjdp/220595.pdf (“the bulk of

the empirical evidence suggests that transfer laws, as currently implemented, probably

have little general deterrent effect on would-be juvenile offenders”).

¶ 175 Regarding incapacitation, incarcerating all juveniles charged with felonies

enumerated in the transfer statute for lengthy adult sentences is little more than a

judgment that they will remain a danger for that entire period, and are essentially

incorrigible. Further, the rehabilitative services available in juvenile detention are at

least as helpful as those in the adult prison system. A 2007 study by the federal Center

for Disease Control shows that transfer policies generally have had a

counter-rehabilitative effect, resulting in increased rates of recidivism, particularly for

violent crime, among juveniles sent to adult court as opposed to those kept in juvenile

court. See Effects on Violence of Laws and Policies Facilitating the Transfer of Youth

from the Juvenile System to the Adult Justice System, Morbidity & Mortality Wkly.

Rep. (Centers for Disease Control & Prevention, Atlanta, Ga.), Nov. 30, 2007, at 9,

available at http://www.cdc.gov/mmwr/PDF/rr/rr5609.pdf (“To the extent that transfer

policies are implemented to reduce violent or other criminal behavior, available

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evidence indicates that they do more harm than good.”); see also Automatic Adult

Prosecution, at 3 (“More than 30 years’ of studies have consistently demonstrated that

categorical treatment of children as adults prevents rehabilitation and positive

development, fails to protect public safety, and yields profound racial, ethnic and

geographic disparities.”).

¶ 176 The majority concludes that the eighth amendment does not apply. The majority is

wrong. Criminal procedure laws that fail to take defendants’ youthfulness into account

at all are flawed. See Graham, 560 U.S. at 76. 3 Like the laws involved in Roper,

Graham, and Miller, section 5-130 is mandatory and inflexible. Every juvenile who

commits one of the enumerated offenses is treated like every adult who commits the

same offenses. Transfers are automatic, and the statute contains no mechanism by

which a judge can consider characteristics of juveniles before transferring them to

criminal court, where, if convicted, they face stiffer adult penalties, enhancements, and

other rules to extend their time in prison. To comport with federal and state

constitutions, transfer proceedings must take into account how children are different

and how those differences may counsel against sending them to criminal court. Here, a

judge should have been allowed to consider the defendant’s intelligence, his

psychological and developmental issues, his family history and status as a ward of the

State, as well as any other characteristics that would have aided in making such a

determination.

¶ 177 Our state, home of the country’s first juvenile court and once a leader in juvenile

justice reform, should not be a place where we boast of locking up juveniles and

throwing away the key. Illinois should be a place where youth matters, and we work to

tailor punishment to fit the offense and the offender, as required by our federal and state

constitutions. For juveniles, that starts with abolishing automatic transfers.

¶ 178 I respectfully dissent.

3

The majority cites City of Urbana v. Andrew N.B., 211 Ill. 2d 456, 486 (2004) for the proposition

that “[w]hether a defendant is tried in juvenile or criminal court is purely a matter of procedure.” Supra

¶ 104. But, that proposition comes from Justice Freeman’s dissent. More importantly, the majority

ignores the breadth of the Court’s statement in Graham. If, as the majority indicates, transfer statutes are

criminal procedure laws, and if criminal procedure laws that fail to consider a defendants’ youth are

flawed, then, logically, then section 5-130, which operates automatically and gives judges no discretion

to factor a juvenile’s age into the transfer decision, is flawed.

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