People v. Jones

2016 IL 119391

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

(Docket No. 119391)

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.

DERRICK JONES, Appellant.

Opinion filed October 20, 2016.

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

Justices Thomas, Karmeier, and Theis concurred in the judgment and opinion.

Justice Burke dissented, with opinion, joined by Chief Justice Garman and

Justice Kilbride.

OPINION

¶1 Defendant Derrick Jones was convicted of aggravated robbery in the circuit

court of Will County and sentenced to an extended-term sentence of 24 years’

imprisonment based on a prior juvenile adjudication of delinquency referenced in

his presentence investigative report. Defendant appealed his sentence, contending

that the use of his prior juvenile adjudication to enhance his sentence violated the

rulings in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Shepard v. United

States, 544 U.S. 13 (2005). The appellate court affirmed. 2015 IL App (3d) 130053.

We allowed defendant’s petition for leave to appeal pursuant to Illinois Supreme

Court Rules 315 and 612 (Ill. S. Ct. R. 315 (eff. July 1, 2013); R. 612 (eff. Feb. 6,

2013)). For the following reasons, we affirm the judgment of the appellate court.

¶2 I. BACKGROUND

¶3 Defendant was charged by indictment with aggravated robbery, a Class 1

felony (720 ILCS 5/18-5 (West 2010) (repealed by Pub. Act 97-1108 (eff. Jan. 1,

2013))), as a result of an incident that occurred on January 6, 2012. Before

defendant’s jury trial began, the court asked the parties whether the sentencing

range for the aggravated battery charge would be 4 to 30 years. The State agreed, as

did defendant’s counsel. Defendant’s counsel stated that the State had tendered to

her a “certified court docket from the ’04 JD case” indicating that defendant, as a

juvenile, had been adjudicated delinquent on multiple counts of residential burglary

and that adjudication would make defendant eligible for an extended-term sentence

in the present case, with a range of 4 to 30 years.1 However, defendant’s counsel

also indicated that she spoke with defendant and defendant denied having an

adjudication for residential burglary. The court admonished defendant that he faced

a sentencing range of 4 to 30 years, and the case proceeded to trial.

¶4 At trial, the evidence presented was limited to the aggravated robbery charge.

No evidence regarding defendant’s prior juvenile adjudication was introduced. The

jury found defendant guilty of aggravated robbery, and the case proceeded to

sentencing.

¶5 A presentencing investigative report (PSI) indicated that defendant, as a

juvenile, had been adjudicated delinquent in 2005 of multiple offenses in case

number 04 JD 00276, including three counts of residential burglary. The PSI

provided:

1

The docket sheet for the 2004 juvenile proceeding was not made a part of the record.

-2-

“On April 28, 2005, with the then minor, Derrick Jones, having been

adjudicated delinquent in the original Petition alleging Assault, and the 1st, 2nd

and 3rd Supplemental Petitions alleging: Burglary, Criminal Trespass to Land,

Knowingly Damage to Property and Residential Burglary, three (3) Counts.

Derrick Jones was sentenced to 5 years and 8 months Probation, until his 21st

Birthday in the aforementioned offenses, with the first nine (9) months of

Probation to be under the directive of Intensive Probation Supervision ***.”

After considering various factors in aggravation and mitigation, the court sentenced

defendant to an extended-term sentence of 24 years’ imprisonment. Defendant’s

motion to reconsider his sentence was subsequently denied.

¶6 On direct review, defendant did not challenge his conviction for aggravated

robbery but did challenge his extended-term sentence. Defendant first argued that

his extended-term sentence violated his sixth amendment right to a jury trial

pursuant to the Supreme Court’s ruling in Apprendi, because the fact of his juvenile

adjudication was neither proven to a jury beyond a reasonable doubt nor alleged in

the indictment. The appellate court rejected his contention, finding that a prior

adjudication of delinquency was sufficiently analogous to a prior criminal

conviction to fall under the prior-conviction exception in Apprendi. 2015 IL App

(3d) 130053, ¶ 38. The court reasoned that because due process does not require the

right to a jury trial in juvenile proceedings, the absence of a right to a jury trial does

not undermine the reliability of a juvenile proceeding. Id. ¶ 37. It further stated that

a juvenile adjudication “reached only where all constitutionally required

procedural safeguards are in place, is a no less reliable basis for the enhancement of

a sentence than is a standard adult criminal conviction.” Id. ¶ 36. Defendant also

argued in the alternative that the circuit court improperly relied upon the PSI in

determining the fact of his prior juvenile adjudication in contravention of the

Supreme Court’s ruling in Shepard, contending that a PSI is “particularly

unreliable” in determining the fact of a prior adjudication of delinquency, as

opposed to a prior criminal conviction. The appellate court also rejected this

contention, finding that information in a PSI may be used as the basis for sentence

enhancement without running afoul of Shepard and that the PSI unequivocally

indicated defendant had been adjudicated delinquent pursuant to a petition alleging

three counts of residential burglary, a Class 1 felony. Id. ¶ 47. The appellate court

affirmed the judgment of the circuit court of Will County. Id. ¶ 50.

-3-

¶7 We granted defendant’s petition for leave to appeal (Ill. S. Ct. R. 315 (eff. July

1, 2013); R. 612 (eff. Feb. 6, 2013)) and affirm the judgment of the appellate court.

¶8 II. ANALYSIS

¶9 On appeal, defendant contends that a prior juvenile delinquency adjudication is

not the equivalent of a prior conviction for purposes of extended-term sentencing

under Apprendi and that such a fact must be alleged in the indictment and proven

beyond a reasonable doubt. Alternatively, defendant contends that even if a prior

adjudication of delinquency can qualify as a prior conviction for purposes of

extended-term sentencing, the information contained in his PSI failed to

conclusively establish that he had been adjudicated delinquent of residential

burglary. Defendant acknowledges that he failed to preserve these issues for review

but argues that an Apprendi violation may be reviewed as plain error where, as

here, the violation was prejudicial to him.

¶ 10 It is well settled that the plain-error doctrine allows a reviewing court to

consider unpreserved error when (1) a clear or obvious error occurred and the

evidence is so closely balanced that the error alone threatened to tip the scales of

justice against the defendant or (2) a clear or obvious error occurred and the error is

so serious that it affected the fairness of the defendant’s trial and the integrity of the

judicial process, regardless of the closeness of the evidence. In re Jonathon C.B.,

2011 IL 107750, ¶ 70; People v. Herron, 215 Ill. 2d 167, 178-79 (2005). Our

decision in Herron established two categories of plain error: prejudicial errors,

which may have affected the outcome in a closely balanced case, and

presumptively prejudicial errors, which must be remedied although they may not

have affected the outcome. People v. Nitz, 219 Ill. 2d 400, 415 (2006). In both

instances, the burden of persuasion remains with the defendant. Herron, 215 Ill. 2d

at 187. We have held that potential Apprendi violations fall under the first category

of prejudicial errors and have required defendants to prove that they were

prejudiced by the error. Nitz, 219 Ill. 2d at 415. In addressing a plain-error

argument, we first consider whether error occurred. In re Jonathon C.B., 2011 IL

107750, ¶ 70. Review of this issue presents a question of law, which we review

de novo. People v. Hopkins, 201 Ill. 2d 26, 36 (2002).

-4-

¶ 11 A. Apprendi’s Prior-Conviction Exception

¶ 12 We first consider defendant’s argument based on Apprendi. As noted above, the

offense of aggravated robbery is a Class 1 felony. 720 ILCS 5/18-5(b) (West 2010)

(repealed by Pub. Act 97-1108 (eff. Jan. 1, 2013)). The standard sentencing range

for a Class 1 felony is 4 to 15 years. 730 ILCS 5/5-4.5-30(a) (West 2010). The

extended-term sentencing range for a Class 1 felony is 15 to 30 years. Id. Section

5-5-3.2 of the Unified Code of Corrections (Code of Corrections) sets forth various

factors that the court may consider as a reason to impose an extended-term

sentence. 730 ILCS 5/5-5-3.2(b) (West 2010). Relevant here is the factor in

subsection (b)(7) of section 5-5-3.2, which governs “[w]hen a defendant who was

at least 17 years of age at the time of the commission of the offense is convicted of

a felony and has been previously adjudicated a delinquent minor under the Juvenile

Court Act of 1987 for an act that if committed by an adult would be a Class X or

Class 1 felony when the conviction has occurred within 10 years after the previous

adjudication, excluding time spent in custody.” 730 ILCS 5/5-5-3.2(b)(7) (West

2010). The offense of residential burglary is a Class 1 felony. 720 ILCS 5/19-3(b)

(West 2010). Based on the information in the PSI that defendant had been

adjudicated delinquent of the offense of residential burglary, section 5-5-3.2(b)(7)

of the Code of Corrections authorized the circuit court to impose an extended-term

sentence. Therefore, we consider whether the manner in which the court imposed

the sentence violated the rule set forth in Apprendi.

¶ 13 In Apprendi, the Supreme Court held that “[o]ther than the fact of a prior

conviction, any fact that increases the penalty for a crime beyond the prescribed

statutory maximum must be submitted to a jury, and proved beyond a reasonable

doubt.” Apprendi, 530 U.S. at 490. The Court found unconstitutional a New Jersey

hate-crime statute that permitted an increase in the defendant’s maximum prison

sentence based on the trial judge’s finding by a preponderance of the evidence that

the defendant had acted with purpose to intimidate the victim based on particular

characteristics of the victim. Id. at 491. The court emphasized, “there is a vast

difference between accepting the validity of a prior judgment of conviction entered

in a proceeding in which the defendant had the right to a jury trial and the right to

require the prosecutor to prove guilt beyond a reasonable doubt, and allowing the

judge to find the required fact under a lesser standard of proof.” Id. at 496.

-5-

¶ 14 In February 2001, our legislature amended section 111-3(c-5) of the Code of

Criminal Procedure of 1963 (Criminal Code) (Pub. Act 91-953 (eff. Feb. 23, 2001)

(adding 725 ILCS 5/111-3(c-5))) in response to the decision in Apprendi. This

amendment brought the Criminal Code into conformity with Apprendi, expressly

incorporating the prior-conviction exception as well as the due process protections

afforded to defendants when an extended-term sentence is sought. Section

111-3(c-5) of the Criminal Code provides in relevant part: “Notwithstanding any

other provision of law, in all cases in which the imposition of the death penalty is

not a possibility, if an alleged fact (other than the fact of a prior conviction) is not an

element of an offense but is sought to be used to increase the range of penalties for

the offense beyond the statutory maximum that could otherwise be imposed for the

offense, the alleged fact must be included in the charging instrument or otherwise

provided to the defendant through a written notification before trial, submitted to a

trier of fact as an aggravating factor, and proved beyond a reasonable doubt.” 725

ILCS 5/111-3(c-5) (West 2010).

¶ 15 The question here is whether defendant’s juvenile adjudication, which qualified

defendant for an extended-term sentence, falls within Apprendi’s prior-conviction

exception and, in turn, the exception in section 111-3(c-5) of the Criminal Code.

This question is an issue of first impression before this court.

¶ 16 To fully understand Apprendi’s holding, we must examine some of the cases

that preceded it, namely Almendarez-Torres v. United States, 523 U.S. 224 (1998),

and Jones v. United States, 526 U.S. 227 (1999). In Almendarez-Torres, the Court

first recognized the prior-conviction exception. There, the defendant was charged

pursuant to a federal statute with the offense of illegal reentry to the United States

by a deported alien. The offense authorized a prison term of up to two years. A

subsection of the statute authorized a prison term of up to 20 years if the defendant

had been deported subsequent to a conviction for the commission of an aggravated

felony. The question before the Court was whether the subsection of the statute

defined a separate offense or simply authorized an enhanced penalty.

Almendarez-Torres, 523 U.S. at 226. If the prior aggravated felony conviction was

a separate offense, the State was required to charge the conviction in the indictment

(and prove it beyond a reasonable doubt to a jury). Id. If the prior conviction merely

authorized an enhanced sentence, then the prior conviction was not an element of

the offense and need not be charged. Id. The Court concluded that the subsection

-6-

was a penalty provision that authorized a court to increase the sentence for a

recidivist but did not define a separate offense. Id. It reasoned that the relevant

statutory subject matter at issue was recidivism, which was “as typical a sentencing

factor as one might imagine.” Id. at 230.

¶ 17 In Jones, the Court considered whether a federal carjacking statute defined

three distinct offenses or a single offense with a choice of three maximum

penalties, two of them dependent on sentencing factors “exempt from the

requirements of charge and jury verdict.” Jones, 526 U.S at 229. The statute’s first

subsection authorized a maximum sentence of 15 years. The second and third

subsections authorized maximum sentences of 25 years and life imprisonment,

respectively, if the carjacking resulted in serious bodily injury or death. The Court

noted that the second and third subsections provided for “steeply” higher penalties

and also conditioned these penalties on further facts. It stated that “[i]t is at best

questionable whether the specification of facts sufficient to increase a penalty range

by two-thirds, let alone from 15 years to life, was meant to carry none of the process

safeguards that elements of an offense bring with them for a defendant’s benefit.”

Id. at 233. It concluded that the statute defined three separate offenses with distinct

elements, each of which must be charged by indictment, proven beyond a

reasonable doubt, and submitted to a jury for its verdict. Id. at 252. In

distinguishing its holding from Almendarez-Torres, the Court reiterated that it

viewed recidivism differently from other factors that enlarge the possible penalty

for an offense. The Court stated, “[o]ne basis for that possible constitutional

distinctiveness is not hard to see: unlike virtually any other consideration used to

enlarge the possible penalty for an offense, and certainly unlike the factor before us

in this case, a prior conviction must itself have been established through procedures

satisfying the fair notice, reasonable doubt, and jury trial guarantees.” Id. at 249.

¶ 18 Since Apprendi was decided, state and federal courts have not been uniform in

concluding whether a juvenile adjudication is the equivalent of a prior conviction

under Apprendi for sentencing purposes. The Ninth Circuit Court of Appeals was

the first court to address the issue in United States v. Tighe, 266 F.3d 1187 (9th Cir.

2001). In a split decision, the court determined that the prior-conviction exception

must be limited to prior convictions that were themselves obtained through

proceedings that included the right to a jury trial and proof beyond a reasonable

doubt. Id. at 1194. It concluded that juvenile adjudications that do not include the

-7-

right to a jury trial and the reasonable doubt burden of proof do not fall within the

prior-conviction exception. Id. The court relied on the language in Apprendi that

referred to accepting the validity of a prior judgment of conviction that was entered

in a proceeding in which the defendant had the right to a jury trial and the right to

require proof of guilt beyond a reasonable doubt. Id. It also relied on the language

in Jones that prior convictions are distinct because they were established through

procedures satisfying the fair notice, reasonable doubt, and jury trial guarantees. Id.

at 1193. The court characterized these constitutional procedural safeguards as the

“fundamental triumvirate of procedural protections.” Id.

¶ 19 The dissent in Tighe found that the court had reached an “unsupportable

conclusion” by taking the language in Jones and making a “quantum leap.” Id. at

1200 (Brunetti, J., dissenting). The dissent believed that the language in Jones only

stood for the basic proposition that Congress had the constitutional power to treat

prior convictions as sentencing factors subject to a lesser standard of proof because

the defendant presumably received all the process that was due when he was

convicted of the prior crime. Id. It explained that, for adults, such process would

include the right to a jury trial. For juveniles, however, such process would not

include that right. Therefore, the dissent concluded that when a juvenile

adjudication is the result of a proceeding in which a juvenile has received all the

process constitutionally due at the juvenile stage, there is no constitutional problem

in using that adjudication to support a later sentencing enhancement. Id.

¶ 20 Since Tighe, numerous courts have had the opportunity to address this issue. As

a result, there has been more agreement with the Tighe dissent. Agreeing with the

Tighe dissent and adopting what would become the majority view, in United States

v. Smalley, 294 F.3d 1030 (8th Cir. 2002), the Eighth Circuit Court of Appeals

concluded that juvenile adjudications could be characterized as “prior convictions”

for Apprendi purposes. Id. at 1033. The court explained that Apprendi did not

preclude such a conclusion, specifically noting “[w]e think that while the

[Apprendi] Court established what constitutes sufficient procedural safeguards (a

right to jury trial and proof beyond a reasonable doubt), and what does not

(judge-made findings under a lesser standard of proof), the Court did not take a

position on possibilities that lie in between these two poles.” Id. at 1032. Like the

Tighe dissent, the court also determined that the language in Jones that referred to

the “ ‘fundamental triumvirate of procedural protections’ ” was not intended to

-8-

define the term “ ‘prior conviction’ ” for constitutional purposes as a conviction

that “ ‘ha[s] been established through procedures satisfying fair notice, reasonable

doubt, and jury trial guarantees.’ ” Id. at 1032 (quoting Tighe, 266 F.3d at

1193-94). The court reasoned that the issue “should not turn on the narrow parsing

of words, but on an examination of whether juvenile adjudications, like adult

convictions, are so reliable that due process of law is not offended by such an

exemption.” Id. at 1033. Noting that the procedural protections afforded to

juveniles include the right to notice, the right to counsel, the right to confront and

cross-examine witnesses, the privilege against self-incrimination, and proof of guilt

beyond a reasonable doubt, it concluded that these safeguards were “more than

sufficient to ensure the reliability that Apprendi requires.” Id. Specifically

addressing the lack of a right to a jury for juveniles, the court believed that the lack

of such right did not undermine the reliability of adjudications in any significant

way because the use of a jury in the juvenile context is not constitutionally required

and, moreover, would not strengthen the fact-finding function. Id.

¶ 21 Joining the Eighth Circuit and embracing the majority view that a juvenile

adjudication falls within the Apprendi prior-conviction exception are the Courts of

Appeal for the First, Third, Fourth, Sixth, Seventh, and Eleventh Circuits. See

United States v. Jones, 332 F.3d 688, 696 (3d Cir. 2003) (because due process does

not require providing juveniles with the right to a jury trial, it follows that when a

juvenile is adjudicated guilty beyond a reasonable doubt in a bench trial that affords

all the due process protections that are required, the adjudication can properly be

characterized as a prior conviction for Apprendi purposes); United States v. Burge,

407 F.3d 1183, 1191 (11th Cir. 2005) (a prior nonjury juvenile adjudication that

was afforded all constitutionally required procedural safeguards can be

characterized as a prior conviction for Apprendi purposes); United States v.

Crowell, 493 F.3d 744, 750 (6th Cir. 2007) (the use of “procedurally sound”

juvenile adjudications to enhance a sentence does not violate due process because

juvenile adjudication proceedings provide sufficient procedural safeguards to

satisfy the reliability requirement “that is at the heart of Apprendi”); United States

v. Matthews, 498 F.3d 25, 35 (1st Cir. 2007) (finding no distinction between

juvenile adjudications and adult convictions for purposes of Apprendi’s

prior-conviction exception since both reflect “the sort of proven prior conduct that

courts historically have used in sentencing”); United States v. Wright, 594 F.3d

259, 264 (4th Cir. 2010) (because the defendant received all the process that was

-9-

due at his nonjury juvenile delinquency proceeding, the use of his juvenile

adjudication to enhance his sentence did not violate Apprendi); Welch v. United

States, 604 F.3d 408, 429 (7th Cir. 2010) (a prior juvenile adjudication, where the

defendant received all the protections to which he was constitutionally entitled, is a

prior conviction under Apprendi).

¶ 22 State supreme courts that have also joined the majority view are Kansas,

Indiana, Minnesota, Washington, and California. See State v. Hitt, 42 P.3d 732,

739-40 (Kan. 2002); Ryle v. State, 842 N.E.2d 320, 321-23 (Ind. 2005); State v.

McFee, 721 N.W.2d 607, 616-19 (Minn. 2006); State v. Weber, 149 P.3d 646, 653

(Wash. 2006) (en banc); People v. Nguyen, 209 P.3d 946, 957-58 (Cal. 2009).

¶ 23 Taking a middle ground position is the Supreme Court of Oregon. In State v.

Harris, 118 P.3d 236, 245-46 (Or. 2005) (en banc), the court held that the use of

prior juvenile adjudications as sentencing factors does not violate the jury trial right

guaranteed by the Sixth Amendment. Id. However, the court qualified its holding

by stating that the Sixth Amendment also requires that when such an adjudication is

offered as an enhancement factor to increase a criminal sentence, its existence must

either be proved to a trier of fact or be admitted by a defendant for sentencing

purposes following an informed and knowing waiver. Id at 246.

¶ 24 Agreeing with Tighe and joining the minority viewpoint is the Supreme Court

of Louisiana. In State v. Brown, 879 So. 2d 1276 (La. 2004), the court held that

because juveniles do not have a right to a jury trial in juvenile adjudicatory

proceedings, juvenile adjudications cannot be used to enhance adult felony

convictions. Id. at 1288. The court reasoned that although juvenile adjudications

are sufficiently reliable without a jury trial to support dispositions within the

juvenile system, those adjudications are not sufficiently reliable under Apprendi to

support enhanced sentencing for adults. Id. The dissenting justice disagreed,

concluding that “a fair reading of Apprendi” did not preclude the use of a juvenile

adjudication to enhance an adult criminal sentence. Id. at 1290-91 (Traylor, J.,

dissenting). The dissent reasoned that when a juvenile adjudication comports with

the requirements of fundamental fairness as set forth by the Supreme Court, it is

constitutionally permissible to use that adjudication to enhance an adult criminal

sentence. Id. at 1291.

- 10 -

¶ 25 Turning to this court’s case law, although this issue is one of first impression,

we did acknowledge and briefly discuss the issue in People v. Taylor, 221 Ill. 2d

157 (2006). In Taylor, we considered whether a minor who had been adjudicated

delinquent was considered a “person convicted of a felony” for purposes of the

offense of escape as set forth in section 31-6(a) of the Criminal Code of 1961 (720

ILCS 5/31-6(a) (West 1998)). Ultimately, we concluded that for purposes of the

escape statute, a juvenile adjudication could not be considered tantamount to a

felony conviction. Taylor, 221 Ill. 2d at 170. Relevant here is our statement that the

issue addressed in Taylor was “to be distinguished from the somewhat analogous

issue of whether a juvenile adjudication is considered a ‘prior conviction’ for

sentencing enhancement purposes under Apprendi.” Id. at 173. We noted the split

among the federal circuits in addressing this issue and stated “[w]e take no position

here with respect to the division among the federal circuits.” Id. at 175. Although

Taylor included a brief discussion of the issue we address in this appeal, it is clear

that our holding in Taylor is distinct from the question now presented, and our

conclusion in Taylor has no bearing on our analysis here.

¶ 26 Thus, we turn to the Supreme Court’s decision in McKeiver v. Pennsylvania,

403 U.S. 528 (1971) (plurality opinion). In McKeiver, the Supreme Court held that

there is no constitutional right to a jury trial in juvenile adjudicatory proceedings.

Id. at 545. The Court reasoned that “[t]he imposition of the jury trial on the juvenile

court system would not strengthen greatly, if at all, the factfinding function, and

would, contrarily, provide an attrition of the juvenile court’s assumed ability to

function in a unique manner.” Id. at 547.

¶ 27 In Illinois, article V of the Juvenile Court Act of 1987 (Juvenile Court Act) (705

ILCS 405/5-101 et seq. (West 2010)) governs juvenile delinquency proceedings. It

aims to balance a community’s interest in holding juveniles accountable for their

unlawful conduct with attempting to rehabilitate those juveniles. In re Rodney H.,

223 Ill. 2d 510, 520 (2006). The “important purposes” of article V are to protect

citizens from juvenile crime, hold each juvenile offender directly accountable for

his or her acts, provide an individualized assessment of each alleged and

adjudicated delinquent juvenile in order to rehabilitate and to prevent further

delinquent behavior, and provide due process as required by the constitutions of the

United States and the State of Illinois. 705 ILCS 405/5-101(1) (West 2010).

Further, article V provides that “minors shall have all the procedural rights of adults

- 11 -

in criminal proceedings, unless specifically precluded by laws that enhance the

protection of such minors,” except that “[m]inors shall not have the right to a jury

trial unless specifically provided by this Article.” 705 ILCS 405/5-101(3) (West

2010). Article V only provides the right to a jury trial when a minor is tried (1) as a

habitual juvenile offender (705 ILCS 405/5-815(d) (West 2010)), (2) as a violent

juvenile offender (705 ILCS 405/5-820(d) (West 2010)), or (3) under the extended

juvenile jurisdiction provision (705 ILCS 405/5-810 (West 2010)). Because

defendant’s delinquency proceedings did not involve any of the above provisions,

he did not have the right to a jury trial in those proceedings.

¶ 28 Here, we find the majority position persuasive and conclude that a prior

juvenile adjudication of delinquency falls within Apprendi’s prior-conviction

exception and the exception in section 111-3(c-5) of the Criminal Code. The

Supreme Court made clear in McKeiver that due process does not require the right

to a jury trial in juvenile proceedings, reasoning that a jury trial “would not

strengthen greatly, if at all, the factfinding function.” McKeiver, 403 U.S. at

545-47. In Almendarez-Torres, the Court repeatedly emphasized the tradition of

regarding recidivism as a sentencing factor, and in Jones, the Court explained that a

prior conviction was different from other factors that increase the sentence for an

offense because of the procedural safeguards inherent in the proceedings that

resulted in that conviction. Almendarez-Torres, 523 U.S. at 230; Jones, 526 U.S. at

249. The Court solidified those holdings in Apprendi, further noting the “vast”

difference between accepting the validity of a prior conviction and allowing a judge

to find a required fact under a lesser standard of proof. Apprendi, 530 U.S. at 496.

¶ 29 A juvenile adjudication of delinquency is similar to a prior conviction in the

sense that both are the result of a person’s prior unlawful behavior or recidivism.

The proceedings that result in a juvenile adjudication contain the same

constitutional procedural safeguards as those proceedings that result in a prior

conviction, except the jury trial right (unless specified by article V of the Juvenile

Court Act). However, because there is no constitutional right to a jury trial in

juvenile proceedings, a juvenile adjudication and a prior conviction both result

from proceedings in which the minor or the defendant received constitutionally

sufficient procedural safeguards. A juvenile adjudication, therefore, is no less valid

or reliable a form of recidivism than is a prior conviction. For purposes of

extended-term sentencing, they are on equal footing. Though defendant did not

- 12 -

have the right to a jury trial in his delinquency proceedings, he did have all the other

procedural rights of adults in criminal proceedings, such as the right to notice,

counsel, confrontation, cross-examination, and proof of guilt beyond a reasonable

doubt. See 705 ILCS 405/5-101(3), 5-525, 5-530, 5-605, 5-610 (West 2010). The

presence of such process in juvenile proceedings forecloses any conclusion that a

juvenile adjudication is not the equivalent of a prior conviction under Apprendi. We

note the following reasoning of the Fourth Circuit. In Wright, the court stated,

“there is no reason to hold that an adjudication that is constitutionally sufficient to

commit a juvenile to confinement, in some instances until age twenty-one, is

somehow off limits for sentencing consideration if the same juvenile later [commits

an offense as an adult].” Wright, 594 F.3d at 264. While the Juvenile Court Act

promotes accountability as well as rehabilitation, section 5-5-3.2(b)(7) of the Code

of Corrections anticipates that those juveniles who are not rehabilitated and commit

crimes as adults may be punished in accordance with their entire criminal history.

Considering a defendant’s entire recidivist past is in no way incongruent with the

aims of the Juvenile Court Act.

¶ 30 Moreover, we do not believe that the Supreme Court’s language in Apprendi

and Jones that referred to the jury trial right was intended to include only those

prior convictions that included that right. The Apprendi Court noted the jury trial

right as one of the procedural safeguards that assured the validity of a prior

conviction, but it did not specifically condition the prior-conviction exception upon

that right. Apprendi, 530 U.S. at 496. Nor did it specifically identify a jury trial as a

required procedural safeguard. We agree with the Eighth Circuit’s view that “while

the [Apprendi] Court established what constitutes sufficient procedural safeguards

(a right to jury trial and proof beyond a reasonable doubt), and what does not

(judge-made findings under a lesser standard of proof), the Court did not take a

position on possibilities that lie in between these two poles.” Smalley, 294 F.3d at

1032.

¶ 31 We are not persuaded by defendant’s contentions to the contrary. Defendant

argues that because section 5-5-3.2(b)(7) of the Code of Corrections and section

111-3(c-5) of the Criminal Code do not expressly define a prior delinquency

adjudication as a prior conviction, defendant’s prior adjudication does not fall

within Apprendi’s prior-conviction exception. He maintains that although section

5-5-3.2(b)(7) of the Code of Corrections allows a court to use an adult offender’s

- 13 -

prior delinquency adjudication for a Class X or Class 1 felony as a basis for

imposing an extended-term sentence, the statute is silent as to the manner in which

the prior adjudication must be pled or proven. Defendant relies on case law for

support as well as the Sex Offender Registration Act (Registration Act) (730 ILCS

150/1 et seq. (West 2010)), wherein the legislature expressly equated a juvenile

adjudication with a conviction. 730 ILCS 150/2 (West 2010).

¶ 32 We find defendant’s reliance on case law and the Registration Act misplaced.

He relies on People v. Villa, 2011 IL 110777, where we rejected the State’s

argument that juvenile adjudications should be put on equal footing with criminal

convictions for impeachment purposes, and In re W.W., 97 Ill. 2d 53 (1983), where

we determined that a conviction was not the same as a juvenile adjudication for

purposes of a statute authorizing State’s Attorney fees to defend an appeal. Villa,

2011 IL 110777, ¶ 40; In re W.W., 97 Ill. 2d at 57-58.2 However, both Villa and

In re W.W. involved the interpretation of statutes, which has no bearing on the issue

presented here. We reiterate that in Taylor we made clear that our interpretation of

the phrase “person convicted of a felony” for purposes of the offense of escape was

to be distinguished from the issue of whether a juvenile adjudication is considered a

prior conviction for sentencing enhancement purposes under Apprendi. Likewise,

regarding defendant’s reliance on the Registration Act, the fact that the legislature

expressly equated a juvenile adjudication with a conviction in that statute also has

no bearing on the issue presented here. Further, the purpose of the amendment to

section 111-3(c-5) of the Criminal Code was to codify Apprendi’s holding to bring

the Criminal Code into conformity with Apprendi. Thus, we reject defendant’s

contention that because section 5-5-3.2(b)(7) of the Code of Corrections and

section 111-3(c-5) of the Criminal Code do not expressly define a juvenile

adjudication as a prior conviction, his prior adjudication does not fall within

Apprendi’s prior-conviction exception.

¶ 33 We conclude that defendant’s prior juvenile adjudication, which qualified

defendant for an extended-term sentence, is the equivalent of a prior conviction

under Apprendi and falls within Apprendi’s prior-conviction exception as well as

2

Defendant also relies on People v. Rankin, 297 Ill. App. 3d 818 (1998); however, he

concedes that due to an amendment to the sentencing statute, it does not address the issue

presented here. Therefore, we need not address it.

- 14 -

the exception in section 111-3(c-5) of the Criminal Code. The State was not

required to allege the fact of his juvenile adjudication in the indictment or prove its

existence beyond a reasonable doubt. Since we find that no error occurred here,

defendant cannot establish plain error.

¶ 34 B. Defendant’s PSI

¶ 35 We next consider whether the information contained in defendant’s PSI

established that he had been adjudicated delinquent of residential burglary.

Defendant contends that the information contained in the PSI was “too ambiguous,

and too tenuous, to conclusively establish” that he had been adjudicated delinquent

of residential burglary. He argues that his PSI suffered from the same infirmities as

the documents found unreliable in Shepard.

¶ 36 The issue in Shepard concerned what sources a court may constitutionally rely

upon in its role as fact finder at sentencing. In Shepard, the United States Supreme

Court held that a court sentencing a defendant under the Armed Career Criminal

Act of 1984 (ACCA) (18 U.S.C. § 924(e) (2006)), which is thus required to

determine whether a burglary is a “generic burglary” under the statute, is generally

limited to examining the statutory definition, charging document, written plea

agreement, transcript of plea colloquy, and any explicit factual finding by the trial

judge to which the defendant assented. Shepard, 544 U.S. at 16. A sentencing judge

may not look to police reports or complaint applications to make the determination.

Id.

¶ 37 This court has previously held that a PSI is generally a reliable source for the

purpose of inquiring into a defendant’s criminal history. People v. Williams, 149

Ill. 2d 467, 491 (1992). A PSI is compiled pursuant to statutory guidelines set forth

in the Code of Corrections, which require the inclusion of certain information,

including the defendant’s “history of delinquency.” 730 ILCS 5/5-3-2(a)(1) (West

2010). Additionally, the Juvenile Court Act permits juvenile court records to be

accessed under certain circumstances, including when a minor becomes 18 years or

older and is the subject of criminal proceedings. 705 ILCS 405/1-8(A)(4)(d) (West

2014)).

- 15 -

¶ 38 We initially note that the accuracy of the PSI with regard to defendant’s prior

adjudication for residential burglary was not disputed at the sentencing hearing.

Defense counsel only sought to amend the PSI to include defendant’s claim that he

was a father, which the PSI did not reflect. An extensive discussion thus ensued as

to whether defendant could have been the father of a recently born child based on

the dates of his incarceration. However, there was no question or discussion as to

defendant’s criminal history as set forth in the PSI, despite several references that

defendant was eligible for an extended-term sentence based on his prior juvenile

adjudication for residential burglary. Although defendant points out that prior to

trial he denied having a prior adjudication for residential burglary, he clearly

abandoned that claim at sentencing. Had defendant continued to believe he did not

have a prior adjudication for residential burglary, he certainly knew how to inform

defense counsel and the court as to the alleged inaccuracy of the PSI, as he did with

his claim that he was a father.

¶ 39 Here, we find that defendant’s PSI established he had been adjudicated

delinquent of residential burglary. As set forth above, the PSI provided that in

2005, defendant had been adjudicated delinquent of the offenses alleged in the

numerous petitions, including a supplemental petition alleging three counts of

residential burglary, and had been sentenced to probation until his twenty-first

birthday for the aforementioned offenses. In addition to the above language, the

PSI enumerated each of the offenses alleged in the petitions and listed a disposition

next to each one. The disposition for each of the offenses, which included the three

counts of residential burglary, was “Juvenile Probation.” As the appellate court

aptly found, defendant’s PSI was “unequivocal” with respect to his prior juvenile

adjudication. We disagree with defendant that the information contained in the PSI

was ambiguous or tenuous.

¶ 40 Further, the use of defendant’s PSI does not run afoul of Shepard. The Court in

Shepard was concerned with what types of documents a court can rely upon at

sentencing to determine the facts about a conviction, rather than determining if the

defendant had a prior conviction. Shepard, 544 U.S. at 25-26. Here, the circuit

court only recognized that defendant had a prior adjudication for residential

burglary; it did not engage in any judicial fact finding about that adjudication.

Additionally, a PSI is of a markedly different character than a police report or

complaint application, with which the Court in Shepard was concerned. As noted

- 16 -

above, a PSI, with its statutorily mandated requirements, is generally viewed as a

reliable source of a defendant’s criminal history. We conclude that defendant’s PSI

conclusively established he had been adjudicated delinquent of residential burglary

and find no error in the court’s reliance on the PSI. Accordingly, since there is no

error, there can be no plain error and no basis to excuse defendant’s procedural

default. See, e.g., People v. Ceja, 204 Ill. 2d 332, 356 (2003); People v. Sims, 192

Ill. 2d 592, 624 (2000).

¶ 41 III. CONCLUSION

¶ 42 We conclude that defendant’s prior juvenile adjudication is the equivalent of a

prior conviction under Apprendi and falls within Apprendi’s prior-conviction

exception, as well as the exception in section 111-3(c-5) of the Criminal Code, and

that defendant’s PSI conclusively established the fact of his prior juvenile

adjudication for residential burglary. For the foregoing reasons, we affirm the

judgment of the appellate court.

¶ 43 Appellate court judgment affirmed.

¶ 44 JUSTICE BURKE, dissenting:

¶ 45 Defendant’s principal argument in this appeal is that his extended-term

sentence was imposed in violation of section 111-3(c-5) of the Code of Criminal

Procedure of 1963 (725 ILCS 5/111-3(c-5) (West 2010)) because the sentence was

based, in part, on a prior juvenile delinquency adjudication which was neither pled

in the indictment nor proved to the jury beyond a reasonable doubt. I agree. For this

reason I cannot join the majority opinion and, therefore, must respectfully dissent.

¶ 46 I

¶ 47 There is no dispute that, under Illinois law, a trial court may use an adult

offender’s prior juvenile delinquency adjudication as a factor to consider when

deciding whether to impose an extended-term sentence, so long as the adjudication

involved an act that, if committed by an adult, would be a Class X or Class 1 felony

- 17 -

and the conviction occurred within 10 years after the adjudication. 730 ILCS

5/5-5-3.2(b)(7) (West 2010). What is at issue in this appeal is the manner in which

the prior adjudication must be pled or proven before it may be used by the trial

court in this way.

¶ 48 In Apprendi v. New Jersey, 530 U.S. 466 (2000), the United States Supreme

Court held that the due process clause of the fourteenth amendment requires any

fact that increases the penalty for a crime beyond the prescribed statutory

maximum, other than the fact of a “prior conviction,” to be submitted to a jury and

proved beyond a reasonable doubt. Id. at 476, 490. After Apprendi was decided, the

General Assembly enacted section 111-3(c-5) of the Code of Criminal Procedure of

1963 (725 ILCS 5/111-3(c-5) (West 2010)) to bring our state law into conformity

with Apprendi’s constitutional requirements.

¶ 49 Section 111-3(c-5) provides, in pertinent part:

“[I]f an alleged fact (other than the fact of a prior conviction) is not an element

of an offense but is sought to be used to increase the range of penalties for the

offense beyond the statutory maximum that could otherwise be imposed for the

offense, the alleged fact must be included in the charging instrument or

otherwise provided to the defendant through a written notification before trial,

submitted to a trier of fact as an aggravating factor, and proved beyond a

reasonable doubt.”

¶ 50 Both Apprendi and section 111-3(c-5) explicitly exempt only “prior

convictions” from those facts that must be pled in the charging instrument and

proved beyond a reasonable doubt before they can be used as an aggravating factor

to increase the penalty for an offense. Neither Apprendi nor section 111-3(c-5)

makes any mention of prior juvenile delinquency adjudications.

¶ 51 Before this court, defendant contends that a juvenile delinquency adjudication

is not a “conviction” within the meaning of section 111-3(c-5). Therefore,

defendant maintains, a trial court may only base an extended-term sentence on a

prior adjudication if that adjudication was included in the charging instrument and

proved to the fact finder beyond a reasonable doubt. In this case, however,

defendant’s prior adjudication was referenced only in a presentencing investigative

- 18 -

report. Accordingly, defendant asserts that the trial court violated section

111-3(c-5) and committed plain error when it imposed an extended-term sentence.

¶ 52 Defendant’s argument raises a question of statutory construction. When

construing a statute, we first look to the language of the statute itself, which is the

surest and most reliable indicator of the legislature’s intent. People v. Pullen, 192

Ill. 2d 36, 42 (2000). The language of the statute must be given its plain and

ordinary meaning, and where the statutory language is clear and unambiguous, we

may not resort to other aids of construction. People v. Taylor, 221 Ill. 2d 157, 162

(2006); People v. Tucker, 167 Ill. 2d 431, 435 (1995). In addition, this court may

not correct what we believe to be a legislative oversight by rewriting a statute in a

manner inconsistent with its clear and unambiguous language under the guise of

statutory interpretation. Taylor, 221 Ill. 2d at 162-63; Pullen, 192 Ill. 2d at 42.

¶ 53 In construing the term “conviction” in section 111-3(c-5), we do not write on a

clean slate. Illinois courts have long held that, when used in a statutory enactment,

the word “conviction” does not include juvenile adjudications. For example, in

In re W.W., 97 Ill. 2d 53 (1983), this court held that section 8 of “An Act

concerning fees and salaries, and to classify the several counties of this state with

reference thereto” (Ill. Rev. Stat. 1979, ch. 53, ¶ 8), which provided that State’s

Attorney fees are to be taxed as costs and collected from the “defendant” upon

“conviction,” had no application to juvenile proceedings. In so holding, this court

concluded that “a minor is neither ‘convicted’ nor considered a ‘defendant’ or an

‘accused.’ ” In re W.W., 97 Ill. 2d at 57.

¶ 54 Similarly, in People v. Rankin, 297 Ill. App. 3d 818 (1998), our appellate court

found no authority for a trial court to impose an extended-term sentence based on

the defendant’s juvenile adjudication under the then-existing version of the statute.

The court reached this conclusion because juvenile proceedings are not criminal

and a juvenile adjudication does not constitute a conviction. Id. at 824-25.

¶ 55 In People v. Taylor, 221 Ill. 2d 157 (2006), this court considered whether a

minor who had been adjudicated delinquent for a felony offense could be

considered a “person convicted of a felony” for purposes of our escape statute (720

ILCS 5/31-6(a) (West 1998)). In our discussion in Taylor, we distinguished the

issue that was then before us from “the somewhat analogous issue of whether a

juvenile adjudication is considered a ‘prior conviction’ for sentencing enhancement

- 19 -

purposes under Apprendi v. New Jersey, 530 U.S. 466 *** (2000).” Taylor, 221 Ill.

2d at 173. We said:

“We take no position here with respect to the division among the federal

circuits. We only discuss the jurisprudence on the use of nonjury juvenile

adjudications for Apprendi purposes because we find it helpful to our analysis

to illustrate the important differences between the case before us and the federal

cases cited above. In each of the federal cases, a statute specifically defined a

‘conviction’ as a prior juvenile adjudication for purposes of the offense at issue.

Here, in contrast, the legislature has not defined the term ‘conviction’ in the

escape statute to include juvenile adjudications. Moreover, the key issue in the

present case involves proof of a prior conviction as an element of the offense

where the applicable statute fails to define an ‘adjudication’ as a ‘conviction.’

Thus, the primary issue here turns on a question of statutory construction, while

the principal issue in the federal cases turned on whether an adjudication could

be classified as a prior conviction for Apprendi purposes, not on whether it

could be classified as a ‘conviction’ for purposes of establishing an element of

an offense. The distinction is critical, of course, because nothing in a penal

statute may be construed against a defendant by intendment or implication

([People v. Laubscher, 183 Ill. 2d 330, 337 (1998)]).” (Emphasis in original.)

Id. at 175-76.

Citing In re W.W. and Rankin, we then went on to state the governing rule:

“In the absence of a statute expressly defining a juvenile adjudication as a

conviction, Illinois courts have consistently held that juvenile adjudications do

not constitute convictions.” Id. at 176.

¶ 56 Finally, and more recently, in People v. Villa, 2011 IL 110777, this court held

that a juvenile adjudication was inadmissible against a testifying defendant for

impeachment purposes. This conclusion rested, in part, on the fact that a juvenile

adjudication is not the same as a criminal conviction. Id. ¶ 40.

¶ 57 Section 111-3(c-5) exempts only “convictions” from those facts that must be

pled in the indictment and proved beyond a reasonable doubt before they can be

used as an aggravating factor to increase the penalty for an offense. Under

long-standing case law, a juvenile delinquency adjudication is not a “conviction.”

- 20 -

¶ 58 Further, it is worth noting that the General Assembly may have had good reason

for treating juvenile adjudications differently than adult convictions under section

111-3(c-5). Requiring a juvenile adjudication to be pled and proven to a jury before

it may be considered for extended-term sentencing provides the sentencing judge

with additional information regarding the nature of the prior offense, including, in

particular, the extent of the juvenile’s culpability. See, e.g., Miller v. Alabama, 567

U.S. ___, 132 S. Ct. 2455 (2012) (noting the lack of maturity and diminished

culpability of juveniles). In this way, the sentencing judge can make a more

informed decision as to whether extended-term sentencing should be imposed on

the adult offender.

¶ 59 Since section 111-3(c-5) does not equate juvenile adjudications with criminal

convictions, the requirements of the statute had to be met before defendant’s

juvenile adjudication could be considered by the trial court in imposing an

extended-term sentence. This means that the fact of the defendant’s qualifying

juvenile adjudication had to be included in the charging instrument or otherwise

provided to the defendant through a written notification before trial, submitted to

the trier of fact as an aggravating factor, and proved beyond a reasonable doubt.

That did not occur here. In my view, the imposition of defendant’s extended-term

sentence under these circumstances constituted plain error.

¶ 60 II

¶ 61 Despite the foregoing, the majority holds that a juvenile adjudication is a

“conviction” within the meaning of section 111-3(c-5). Supra ¶ 33. Notably,

however, the majority reaches this conclusion without ever conducting any

statutory analysis. Instead, the majority’s determination is based solely on their

examination of cases from other jurisdictions, both federal and state, which have

considered whether, under Apprendi, it would violate a defendant’s due process

rights to treat a juvenile adjudication like a “prior conviction” and exempt the

adjudication from Apprendi’s pleading and proof requirements.

¶ 62 After reviewing the split of authority on this issue, the majority agrees with the

line of cases which holds that, even though a juvenile offender is not afforded the

right to a jury trial, juvenile adjudications may be treated like “prior convictions”

for Apprendi purposes because juvenile adjudications, like adult convictions, are

- 21 -

sufficiently reliable so that due process is not offended by such an exemption. See,

e.g., United States v. Smalley, 294 F.3d 1030, 1033 (8th Cir. 2002). Having adopted

this view, the majority then reasons that, because it would not violate defendant’s

due process rights to treat a juvenile adjudication like a “prior conviction,” then it

must follow that juvenile adjudications are included within the “prior conviction”

exception in section 111-3(c-5). Supra ¶¶ 15, 33. I disagree.

¶ 63 The majority appears to be laboring under the misconception that a finding that

it would not violate due process to treat a juvenile adjudication like a “prior

conviction” under Apprendi means that an adjudication is equivalent to a

conviction under section 111-3(c-5). But this is not true. Whether treating

defendant’s prior delinquency adjudication like a conviction for purposes of the

Apprendi exception violates due process concerns is a separate question from

whether our legislature intended the term “conviction” in our statutory provision to

include a juvenile adjudication. Or, stated otherwise, it is one thing to say that a

certain practice does not violate due process; it is a completely different thing to say

that the practice was authorized by our legislature in the first place.

¶ 64 Furthermore, as a general principle, courts of this state rely, whenever possible,

on nonconstitutional grounds to decide cases (Mulay v. Mulay, 225 Ill. 2d 601

(2007) (citing In re E.H., 224 Ill. 2d 172, 178 (2006) (listing cases))). The majority

should therefore have considered first whether a juvenile adjudication may be

deemed a “conviction” for purposes of section 111-3(c-5), as a matter of statutory

interpretation, before determining whether defendant’s due process rights were

violated under Apprendi.

¶ 65 In Illinois, the rule is clear that, for statutory purposes, the term “conviction”

does not include juvenile delinquency adjudications. It follows, therefore, that a

juvenile adjudication is not a “conviction” within the meaning of section

111-3(c-5). Whether it would violate due process to base an extended-term

sentence on a juvenile adjudication, as was done in this case, is an important issue.

However, until such time as the General Assembly actually authorizes that practice

under section 111-3(c-5), there is no need to reach the issue.

¶ 66 For the reasons set forth above, I dissent.

- 22 -