People v. Fort

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Supreme Court Date: 2018.01.11

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People v. Fort, 2017 IL 118966

Caption in Supreme THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.

Court: CAMERON FORT, Appellant.

Docket No. 118966

Filed February 17, 2017

Decision Under Appeal from the Appellate Court for the First District; heard in that

Review court on appeal from the Circuit Court of Cook County, the Hon.

Vincent Gaughan, Judge, presiding.

Judgment Judgments reversed; cause remanded with directions.

Counsel on Michael J. Pelletier, State Appellate Defender, Alan D. Goldberg,

Appeal Deputy Defender, and Heidi Linn Lambros, Assistant Appellate

Defender, of the Office of the State Appellate Defender, of Chicago,

for appellant.

Lisa Madigan, Attorney General, of Springfield, and Anita Alvarez,

State’s Attorney, of Chicago (Alan J. Spellberg, Michelle Katz,

Annette Collins, and Veronica Calderon Malavia, Assistant State’s

Attorneys, of counsel), for the People.

Maya Szilak, of Chicago, for amici curiae Persons Concerned With

the Fair Sentencing of Minors–The John Howard Association of

Illinois et al.

Justices JUSTICE BURKE delivered the judgment of the court, with opinion.

Justices Freeman, Garman, and Theis concurred in the judgment and

opinion.

Chief Justice Karmeier dissented, with opinion, joined by Justices

Thomas and Kilbride.

OPINION

¶1 At issue in this appeal is whether a minor who is tried in adult court under the “automatic

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

but is later not convicted of the charges which brought him into adult court is subject to

mandatory adult sentencing under the Act. Defendant, age 16, was charged with multiple

counts of first degree murder and tried in adult court but was convicted only of the uncharged

offense of second degree murder. See 720 ILCS 5/9-2(a)(2) (West 2008). The circuit court of

Cook County sentenced defendant as an adult to 18 years in prison. We hold that the trial court

erred in automatically sentencing defendant as an adult pursuant to section 5-130(1)(c)(i) of

the Act because second degree murder was not a “charge[ ] arising out of the same incident” as

the first degree murder charges. 705 ILCS 405/5-130(1)(a), (1)(c)(i) (West 2008).

¶2 BACKGROUND

¶3 Defendant, Cameron Fort, was indicted and charged by a grand jury with 57 counts of first

degree murder, 9 counts of attempted first degree murder, and 3 counts of aggravated

discharge of a firearm in connection with the shooting death of Lee Ivory Miller on March 16,

2009. Defendant was 16 years old at the time of the incident.

¶4 The State proceeded to trial on four counts of first degree murder and dismissed the

remaining charges. Because defendant was charged with first degree murder, an offense

specified in section 5-130 of the Act (705 ILCS 405/5-130(1)(a) (West 2008)), also known as

the “automatic transfer” statute, defendant was tried as an adult. 705 ILCS 405/5-130(1)(b)(ii)

(West 2008).

¶5 Defendant elected a bench trial. A detailed recitation of the trial evidence is contained in

the appellate court’s order. 2014 IL App (1st) 113315-U. We briefly summarize the facts here,

bearing in mind that the issue presented in this appeal is one of law.

¶6 At trial, Keva Donaldson testified that on March 16, 2009, she met a group of friends after

school at the intersection of East 64th Street and South Stony Island Avenue. Donaldson and

her friends attended Hyde Park Academy. While Donaldson was talking to another girl, a boy

named “Bolo” began speaking to her and tapping her on the back. When Donaldson told him to

stop, Bolo hit her with a closed fist, leaving a mark on her face from his ring. Bolo and his

friends, including defendant, then ran away. Donaldson borrowed a cell phone and called a

male friend to ask him to confront Bolo. Airreon Sykes, Elijah Sullivan, Gerome Freeman,

Lamont Nichols, and Miller eventually arrived. Sometime later, Donaldson said, she went into

a convenience store. When she left the store, Sykes and another boy told her that defendant had

shot Miller a block away.

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¶7 Freeman testified that on March 16, 2009, he arrived at a location near 1516 East 65th

Place and began walking with Sykes, Sullivan, Nichols, Miller, and other individuals. Freeman

said he separated from the group and crossed the street to talk to a group of girls, then crossed

back to rejoin his friends who were standing near a vacant lot. Freeman testified that his friends

had surprised looks on their faces. He then saw defendant nearby pointing a gun at the group.

He said defendant hesitated for about 30 seconds and then began shooting. Freeman heard two

or three shots fired as he ran away but did not see defendant fire the gun. Freeman denied that

he or his friends had any guns or other weapons, but he testified that he thought Miller was

holding a stick in his hand.

¶8 Sykes testified that he was with Sullivan, Freeman, Nichols, Donaldson, and Miller on the

afternoon of March 16, 2009, at the corner of East 65th Street and Stony Island Avenue. Sykes

knew defendant from school and testified that defendant had been involved in a fight a week or

two before the shooting. Sykes saw defendant walking toward him and his group of friends.

Defendant then crossed the street and walked away from the group. Sykes testified that they

lost sight of defendant. A while later, Sykes and his friends split into two groups and began to

search the area for defendant. After they reached a vacant lot, they saw that defendant was

standing nearby but facing away from them. Defendant turned around and appeared surprised

to see them. Sykes saw defendant pull a gun out of his pocket and point it at the group. After

five to ten seconds, defendant began shooting. Sykes testified that no one in the group had any

weapons, sticks, or poles.

¶9 The parties stipulated that during an autopsy, three bullet entrance wounds were found on

Miller’s body—on his right shoulder, his upper left back, and his left buttock—and two bullets

were recovered from his body. Those bullets were later tested and determined to have been

fired from the same firearm.

¶ 10 The State then introduced a video recording of defendant’s interrogation by a detective and

assistant State’s Attorney on January 9, 2010, one day after his arrest. In the video, defendant

stated that he found a gun in an alley on March 14, 2009, and he intended to return it to that

location. Defendant said that on March 16, 2009, he saw Nichols at a bus stop near East 65th

Street and Stony Island Avenue. When Nichols approached defendant with his hand in his

pocket, defendant crossed the street to avoid him. Defendant said he had heard that Nichols had

threatened others with guns. Nichols continued to follow him as he walked down the street.

Defendant stated that he was panicking and thought he was going to die because he was

“eighty percent sure” that Nichols was holding a gun.

¶ 11 Defendant stated in the video that he pulled out a gun from his sweatshirt pocket before he

reached the vacant lot. He saw Sykes and Miller standing about 10 feet away. Defendant stated

that Sykes was holding a thick metal pole. He could not tell whether Miller had anything in his

hands. Defendant stated that he jumped, which caused the gun to discharge accidentally.

Defendant said he fired a second shot three seconds later because his ears were ringing and he

thought he heard Nichols shooting at him. He stated that he just wanted to scare them so that

they would leave him alone. He denied aiming at anyone and denied firing a third shot.

¶ 12 The State rested its case. Defendant did not present any evidence. Following closing

arguments, the trial court found defendant not guilty of two counts of murder and merged the

remaining two counts. The court found that the State had proved the elements of first degree

murder but also found that “at the time of the killing [defendant] believed the circumstances to

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be such that if they existed would have justified or exonerated the killing under the said

principles of self-defense, but his belief was unreasonable.” Accordingly, the trial court

reduced the offense of first degree murder to second degree murder based on the mitigating

factor of an unreasonable belief in self-defense. The court entered judgment on a conviction of

second degree murder (720 ILCS 5/9-2(a)(2) (West 2008)).

¶ 13 Although defendant was a minor, the State never filed a written motion requesting that

defendant be sentenced as an adult pursuant to section 5-130(1)(c)(ii) of the Act (705 ILCS

405/5-130(1)(c)(ii) (West 2008)). Nor did defendant object or argue at the time of sentencing

that he should have been sentenced as a juvenile. Instead, the trial court and the parties

proceeded directly to a sentencing hearing under the Unified Code of Corrections (730 ILCS

5/1-1-1 et seq. (West 2008)) pursuant to section 5-130(1)(c)(i) of the Act. Following the

sentencing hearing, defendant was sentenced to 18 years’ imprisonment in the Illinois

Department of Corrections with two years of mandatory supervised release. Defendant filed a

motion to reconsider sentence arguing that his sentence was excessive. The trial court denied

the motion.

¶ 14 On appeal, defendant argued, inter alia, that his adult sentence should be reversed because

he was convicted of second degree murder, a non-automatic transfer offense and, thus, he

should have been sentenced as a juvenile under section 5-130(1)(c)(ii). The appellate court

rejected this argument and affirmed defendant’s conviction and sentence. 2014 IL App (1st)

113315-U. The court held that a minor who is charged with first degree murder but convicted

only of the uncharged offense of second degree murder is subject to mandatory adult

sentencing under section 5-130(1)(c)(i) of the Act. Id. ¶¶ 29-33.

¶ 15 This court granted defendant’s petition for leave to appeal pursuant to Illinois Supreme

Court Rule 315 (eff. Jan. 1, 2015). We have permitted the John Howard Association of Illinois,

along with various other groups and individuals concerned with the fair sentencing of minors,

to file a brief as amici curiae in support of defendant. Ill. S. Ct. R. 345 (eff. Sept. 20, 2010).

¶ 16 ANALYSIS

¶ 17 I. Plain Error

¶ 18 At the outset, we recognize that defendant failed to challenge the propriety of his adult

sentence before the trial court. Defendant neither objected to his adult sentence at his

sentencing hearing nor raised such a claim in his motion to reconsider sentence. Accordingly,

this issue was forfeited and may not be considered on appeal unless it was plain error. Ill. S. Ct.

R. 615(a) (eff. Jan. 1, 1967); People v. Bannister, 232 Ill. 2d 52, 76 (2008) (to preserve a

sentencing claim for appeal, a defendant must make a contemporaneous objection at the

sentencing hearing and raise the issue in a postsentencing motion). The plain error doctrine is

set forth in this court’s jurisprudence as follows:

“[T]he plain-error doctrine bypasses normal forfeiture principles and allows a

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

regardless of the seriousness of the error, or (2) the error is serious, regardless of the

closeness of the evidence. In the first instance, the defendant must prove ‘prejudicial

error.’ That is, the defendant must show both that there was plain error and that the

evidence was so closely balanced that the error alone severely threatened to tip the

scales of justice against him. *** In the second instance, the defendant must prove

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there was plain error and that the error was so serious that it affected the fairness of the

defendant’s trial and challenged the integrity of the judicial process. [People v. Keene,

169 Ill. 2d 1, 17 (1995).] Prejudice to the defendant is presumed because of the

importance of the right involved, ‘regardless of the strength of the evidence.’

(Emphasis in original.) [People v. Blue, 189 Ill. 2d 99, 138 (2000).] In both instances,

the burden of persuasion remains with the defendant.” People v. Herron, 215 Ill. 2d

167, 186-87 (2005).

¶ 19 If defendant is correct that the trial court was statutorily prohibited from sentencing him as

an adult, this would amount to plain error pursuant to the second prong of our plain error

analysis. “The imposition of an unauthorized sentence affects substantial rights” and, thus,

may be considered by a reviewing court even if not properly preserved in the trial court. People

v. Hicks, 181 Ill. 2d 541, 545 (1998) (citing People v. Brown, 197 Ill. App. 3d 907, 918

(1990)); see also People v. Lewis, 234 Ill. 2d 32, 48-49 (2009) (plain error review is

appropriate to consider the imposition of a fine in contravention of the statute because it

implicates a defendant’s right to a fair sentencing hearing). Thus, our first task is to determine

whether defendant’s adult sentence was authorized under section 5-130 of the Act. 705 ILCS

405/5-130 (West 2008).

¶ 20 The issue presented in this appeal involves statutory construction, an issue of law which is

subject to de novo review. In re D.D., 196 Ill. 2d 405, 418 (2001). The cardinal rule in

interpreting a statute is to give effect to the intent of the legislature. Id. The language of the

statute is the best and most reliable indicator of the legislature’s intent. People v. Collins, 214

Ill. 2d 206, 214 (2005). Where the language is plain and unambiguous, we may not read into it

exceptions, limitations, or other conditions. In re D.D., 196 Ill. 2d at 419. However, where the

statutory language is ambiguous, a reviewing court may look beyond the language and resort to

further aids of statutory construction. Id. In addition to examining the statutory language, we

may discern legislative intent by considering “the purpose and necessity for the law, the evils

sought to be remedied, and goals to be achieved.” People ex rel. Sherman v. Cryns, 203 Ill. 2d

264, 280 (2003). “ ‘Legislative intent can be ascertained from a consideration of the entire Act,

its nature, its object and the consequences that would result from construing it one way or the

other.’ ” Id. (quoting Fumarolo v. Chicago Board of Education, 142 Ill. 2d 54, 96 (1990)).

Throughout this process, we presume that the legislature did not intend absurdity,

inconvenience, or injustice. Id.

¶ 21 II. Statutory Analysis

¶ 22 The Act, as it existed at the time of defendant’s offense, provides that juvenile proceedings

are properly instituted against any minor under 17 years of age who is charged with violating

any federal or State law or municipal or county ordinance.1 705 ILCS 405/5-120 (West 2008).

The Act further provides that “no minor who was under 17 years of age at the time of the

alleged offense may be prosecuted under the criminal laws of this State.” Id.

¶ 23 The automatic transfer provision in section 5-130 of the Act is an exception to the juvenile

court’s exclusive jurisdiction over minors charged with a crime. 705 ILCS 405/5-130 (West

1

The current statute expands the juvenile court’s jurisdiction to include all minors under 18 years of

age. 705 ILCS 405/5-120 (West 2014).

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2008). At the time of defendant’s offense, the automatic transfer statute provided, in pertinent

part:

Ҥ 5-130. Excluded jurisdiction.

(1)(a) The definition of delinquent minor under Section 5-120 of this Article shall

not apply to any minor who at the time of an offense was at least 15 years of age and

who is charged with: (i) first degree murder, (ii) aggravated criminal sexual assault,

(iii) aggravated battery with a firearm where the minor personally discharged a firearm

as defined in Section 2-15.5 of the Criminal Code of 1961, (iv) armed robbery when the

armed robbery was committed with a firearm, or (v) aggravated vehicular hijacking

when the hijacking was committed with a firearm.

These charges and all other charges arising out of the same incident shall be

prosecuted under the criminal laws of this State.

(b)(i) If before trial or plea an information or indictment is filed that does not charge

an offense specified in paragraph (a) of this subsection (1) the State’s Attorney may

proceed on any lesser charge or charges, but only in Juvenile Court under the

provisions of this Article. The State’s Attorney may proceed under the Criminal Code

of 1961 on a lesser charge if before trial the minor defendant knowingly and with

advice of counsel waives, in writing, his or her right to have the matter proceed in

Juvenile Court.

(ii) If before trial or plea an information or indictment is filed that includes one or

more charges specified in paragraph (a) of this subsection (1) and additional charges

that are not specified in that paragraph, all of the charges arising out of the same

incident shall be prosecuted under the Criminal Code of 1961.

(c)(i) If after trial or plea the minor is convicted of any offense covered by

paragraph (a) of this subsection (1), then, in sentencing the minor, the court shall have

available any or all dispositions prescribed for that offense under Chapter V of the

Unified Code of Corrections.

(ii) If after trial or plea the court finds that the minor committed an offense not

covered by paragraph (a) of this subsection (1), that finding shall not invalidate the

verdict or the prosecution of the minor under the criminal laws of the State; however,

unless the State requests a hearing for the purpose of sentencing the minor under

Chapter V of the Unified Code of Corrections, the Court must proceed under Sections

5-705 and 5-710 of this Article. To request a hearing, the State must file a written

motion within 10 days following the entry of a finding or the return of a verdict.

Reasonable notice of the motion shall be given to the minor or his or her counsel. If the

motion is made by the State, the court shall conduct a hearing to determine if the minor

should be sentenced under Chapter V of the Unified Code of Corrections. In making its

determination, the court shall consider among other matters: (a) whether there is

evidence that the offense was committed in an aggressive and premeditated manner;

(b) the age of the minor; (c) the previous history of the minor; (d) whether there are

facilities particularly available to the Juvenile Court or the Department of Juvenile

Justice for the treatment and rehabilitation of the minor; (e) whether the security of the

public requires sentencing under Chapter V of the Unified Code of Corrections; and

(f) whether the minor possessed a deadly weapon when committing the offense. The

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rules of evidence shall be the same as if at trial. If after the hearing the court finds that

the minor should be sentenced under Chapter V of the Unified Code of Corrections,

then the court shall sentence the minor accordingly having available to it any or all

dispositions so prescribed.” (Emphases added.) 705 ILCS 405/5-130(1) (West 2008).2

¶ 24 Defendant contends that his adult sentence was imposed in violation of the statute, based

on the fact that he was convicted of second degree murder, an uncharged non-automatic

transfer offense, and not convicted of all first degree murder charges. He argues that his

conviction for second degree murder was “not covered by” section 5-130(1)(a) because second

degree murder was not a “charge[ ] arising out of the same incident” as the first degree murder

charges. 705 ILCS 405/5-130(1)(a), (1)(c)(i) (West 2008). Therefore, defendant argues, he

should have been sentenced as a juvenile pursuant to section 5-130(1)(c)(ii) unless the State

specifically requested a hearing to sentence him as an adult. 705 ILCS 405/5-130(1)(c)(ii)

(West 2008). We agree.

¶ 25 In order to discern the legislative intent, it is necessary to consider the statute in its entirety

without construing any part of the statute in isolation. See Ultsch v. Illinois Municipal

Retirement Fund, 226 Ill. 2d 169, 184 (2007) (“a court determines the legislative intent in

enacting a statute by examining the entire statute and by construing each material part of the

legislation together, and not each part or section alone”). To that end, we will examine the

ways in which the various provisions in section 5-130 work together as a whole.

¶ 26 Section 5-130(1)(a) of the statute provides that a minor who is at least 15 years old at the

time of the offense and who is charged with one of the offenses listed in the statute is excluded

from the juvenile court’s jurisdiction. 705 ILCS 405/5-130(1)(a) (West 2008). The listed

offenses include first degree murder but not second degree murder. Id. Section 5-130(1)(a)

further provides that “[t]hese charges and all other charges arising out of the same incident

shall be prosecuted under the criminal laws of this State.” (Emphases added.) Id.

¶ 27 Section 5-130(1)(b) pertains to whether the minor is properly tried for his charged offenses

in juvenile court or adult court. Defendant does not dispute that he was properly tried in adult

court because he was charged with four counts of first degree murder, one of the listed offenses

in section 5-130(1)(a). See 705 ILCS 405/5-130(1)(a), (1)(b)(ii) (West 2008).

¶ 28 Section 5-130(1)(c) pertains to sentencing of minors subject to the automatic transfer

statute. 705 ILCS 405/5-130(1)(c) (West 2008). Section 5-130(1)(c)(i) provides that if the

minor is convicted of “any offense covered by” section 5-130(1)(a), the trial court shall

sentence him as an adult under chapter V of the Unified Code of Corrections. 705 ILCS

405/5-130(1)(c)(i) (West 2008). Conversely, section 5-130(1)(c)(ii) provides that if the minor

is convicted of “an offense not covered by” section 5-130(1)(a), the trial court must sentence

him as a juvenile unless the State files a written motion, within 10 days after the verdict or

finding, requesting adult sentencing. 705 ILCS 405/5-130(1)(c)(ii) (West 2008). If the State

files such a motion, the trial court must conduct a hearing, following the rules and taking into

consideration the factors set forth in section 5-130(1)(c)(ii). Id.

2

The statute has since been amended. The age upon which the automatic transfer statute becomes

effective has been increased to 16, and the offenses listed in subsection 5-130(1)(a) have been

modified. See 705 ILCS 405/5-130 (West Supp. 2015).

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¶ 29 Thus, the statutory language clearly requires that a minor be tried in adult court if he is

charged with one of the offenses listed in section 5-130(1)(a) of the statute. See 705 ILCS

405/5-130(1)(a), (1)(b)(ii) (West 2008). Moreover, a minor is properly tried in adult court on

all of the charged offenses “arising out of the same incident,” even if some of those charges are

not listed in section 5-130(1)(a). 705 ILCS 405/5-130(1)(a) (West 2008). This procedure

obviously benefits the State and the court system by avoiding separate trials in criminal court

and juvenile court for the same incident. However, the same logic does not apply to sentencing

when a defendant is not convicted of the charges that brought him into adult court and

ultimately is convicted of a less serious, uncharged offense.

¶ 30 The plain language in section 5-130(1)(c)(ii) evinces the legislative intent that when a

minor is convicted only of an uncharged, non-automatic transfer offense, the court must

proceed under the Juvenile Court Act for sentencing unless the State moves for adult

sentencing and that request is granted. Mandatory adult sentencing under section

5-130(1)(c)(i) only applies when a minor is convicted of an offense “covered by” section

5-130(1)(a). 705 ILCS 405/5-130(1)(c)(i) (West 2008). Section 5-130(1)(a) lists four specific

charges and provides that “[t]hese charges and all other charges arising out of the same

incident shall be prosecuted under the criminal laws of this State.” 705 ILCS 405/5-130(1)(a)

(West 2008). Thus, in order for a conviction to be “covered by” section 5-130(1)(a), it must be

for a charged offense, whether one of the enumerated charges or a separate charge arising out

of one of the enumerated charges. There is good reason why the legislature may have chosen to

limit the reach of section 5-130(1)(c)(i) solely to charged offenses. Limiting adult sentencing

in this way prevents the State from overcharging a minor defendant in order to secure an adult

sentence where the evidence does not support a finding of the more serious charge. This court

has recognized that the framework of the Act “turns on the offenses in the charging

instrument.” People v. King, 241 Ill. 2d 374, 385-86 (2011) (citing People v. J.S., 103 Ill. 2d

395, 403 (1984)). “Thus, it is the charging instrument that determines whether the minor has

the right to have the proceedings in juvenile court.” Id.

¶ 31 In this case, defendant was charged and tried for first degree murder but was not charged

with second degree murder. Second degree murder is a separate offense from first degree

murder. 720 ILCS 5/9-1, 9-2 (West 2008). While “[t]he State may charge second degree

murder without also charging first degree murder” (People v. Mohr, 228 Ill. 2d 53, 66 (2008)),

here, the State chose to proceed to trial on only the first degree murder charges. Therefore, the

offense of second degree murder did not qualify as an “other charge[ ] arising out of the same

incident” as the charged offenses. 705 ILCS 405/5-130(1)(a) (West 2008). Under the plain

language of the statute, defendant’s conviction on an uncharged offense was not “covered by”

section 5-130(1)(a). 705 ILCS 405/5-130(1)(a), (1)(c) (West 2008). Thus, sentencing should

have proceeded under section 5-130(1)(c)(ii) rather than section 5-130(1)(c)(i). In the absence

of a request by the State for adult sentencing, defendant’s adult sentence is contrary to the

express statutory language and must be vacated. See 705 ILCS 405/5-130(1)(c)(ii) (West

2008).

¶ 32 The State contends that defendant’s sentencing posture differs from that of a minor who is

charged with only a non-automatic transfer offense and is tried and sentenced in juvenile court.

The State argues that defendant was not “acquitted” of first degree murder because second

degree murder is considered a “lesser mitigated offense” of first degree murder. See Mohr, 228

Ill. 2d at 66. In convicting defendant, the trial court found that the State had proved all of the

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necessary elements for first degree murder but the evidence supported a mitigating factor,

which reduced the crime to second degree murder. According to the State, then, defendant’s

second degree murder conviction was “covered by” section 5-130(1)(a) because it arose out of

the same incident as the proven first degree murder charge. See 705 ILCS 405/5-130(1)(a),

(1)(c)(i) (West 2008).

¶ 33 The State’s argument is grounded in a faulty premise, i.e., that defendant was technically

still “convicted” of first degree murder. We reject this argument as both factually and legally

incorrect. The trial court considered the evidence presented by the State and found defendant

guilty of second degree murder, a lesser, reduced form of murder. The second degree murder

statute provides that the defendant has the burden of proving a mitigating factor by a

preponderance of the evidence. 720 ILCS 5/9-2(c) (West 2008). The State then has the burden

of proving beyond a reasonable doubt “the absence of circumstances at the time of the killing

that would justify or exonerate the killing under the principles stated in Article 7 of this Code.”

Id. Because defendant was convicted of second degree murder, the State obviously failed to

meet its burden of proof with respect to the absence of a mitigating factor.

¶ 34 When a defendant is charged with first degree murder but convicted of second degree

murder, the State is prohibited by collateral estoppel from later retrying the defendant for first

degree murder. See People v. Newbern, 219 Ill. App. 3d 333, 354 (1991); People v. Thomas,

216 Ill. App. 3d 469, 472-73 (1991); Illinois Pattern Jury Instructions, Criminal, No. 7.01S,

Committee Note (4th ed. 2000). Collateral estoppel, in the criminal context, is a component of

the double jeopardy clause. People v. Blue, 207 Ill. 2d 542, 549 (2003); People v. Carrillo, 164

Ill. 2d 144, 151 (1995). Accordingly, the State’s claim that defendant was convicted of first

degree murder is simply false.

¶ 35 Furthermore, the State’s reading of the statute leads to unjust and absurd results. The

process of statutory interpretation should not be divorced from consideration of real-world

results, and in construing a statute, courts should presume that the legislature did not intend

unjust consequences. People v. Marshall, 242 Ill. 2d 285, 293 (2011); Collins v. Board of

Trustees of the Firemen’s Annuity & Benefit Fund, 155 Ill. 2d 103, 110 (1993). To illustrate the

injustice of the State’s position, it is helpful to consider a scenario in which defendant is

initially charged only with second degree murder. The same evidence is introduced at trial with

the same verdict or finding rendered as in the instant case. In this scenario, defendant would

have remained under the jurisdiction of the juvenile court, affording him access to the

dispositions available to juveniles under the Act. See generally In re Rodney H., 223 Ill. 2d

510, 519-20 (2006); 705 ILCS 405/1-2(1), 5-101(1) (West 2008). By contrast, in this case, the

State’s decision to charge defendant with first degree murder, which was ultimately rejected by

the trier of fact in a final judgment on the merits, resulted in defendant’s categorical exclusion

from being treated as a juvenile at sentencing. This result cannot be what the legislature

intended.

¶ 36 The appellate court below relied on People v. King, 241 Ill. 2d 374 (2011), in support of its

decision to affirm defendant’s criminal sentence under section 5-130(1)(c)(i). King is factually

distinguishable and does not support the appellate court’s rationale. There, the 15-year-old

defendant was initially charged with five counts of first degree murder (720 ILCS 5/9-1(a)(1),

(a)(2) (West 2000)). The State subsequently filed an additional information, which added one

count of attempted first degree murder (720 ILCS 5/8-4(a), 9-1(a) (West 2000)) arising out of

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the same incident. King, 241 Ill. 2d at 376. On the same day, the defendant entered a negotiated

plea to the attempted murder charge in exchange for dismissal of the murder charges and a

15-year sentence in the Department of Corrections. The trial court entered judgment pursuant

to the plea agreement, sentenced defendant to the agreed-upon 15-year prison term, and

dismissed the murder charges. On appeal, defendant argued his sentence violated the Act

because the State failed to request a hearing under section 5-130(1)(c)(ii) to determine whether

he should be sentenced as an adult. Id. at 376-77. The appellate court agreed and reversed the

trial court’s judgment. People v. King, 395 Ill. App. 3d 985 (2009).

¶ 37 On appeal to this court, we reversed, holding that defendant was properly sentenced as an

adult pursuant to section 5-130(1)(c)(i). King, 241 Ill. 2d at 378. We held that a conviction for

an offense “ ‘covered by’ ” section 5-130(1)(a), as set forth in section 5-130(1)(c)(i), includes

both charges “ ‘specified in’ ” section 5-130(1)(a), as well as “ ‘all other charges arising out of

the same incident.’ ” Id. at 385. Thus, the attempted first degree murder charge was “ ‘covered

by’ ” section 5-130(1)(a) because it arose out of the same incident as the first degree murder

charges. Id. at 386.

¶ 38 The facts in the case at bar do not resemble those in King. The defendant in King pled

guilty to and was convicted of the charged offense of attempted first degree murder, and his

first degree murder charges were not dismissed until after defendant’s sentencing. Id. Unlike

King, who was actually charged with attempted first degree murder, defendant was never

charged with second degree murder. Thus, in this case, second degree murder is not a

“charge[ ] arising out of the same incident” as the first degree murder charges. See 705 ILCS

405/5-130(1)(a) (West 2008). Moreover, in King, the parties specifically negotiated the guilty

plea procedure with the intent that the minor receive an adult sentence. A negotiated guilty plea

involves different concerns than those in defendant’s case. See People v. Whitfield, 217 Ill. 2d

177, 190 (2005) (when a defendant enters a negotiated guilty plea in exchange for specific

benefits, both the State and the defendant must be bound by the terms of the agreement).

Accordingly, King is factually distinguishable and does not support the result reached by the

appellate court in the instant case.

¶ 39 The State contends that, even if it was error for the trial court to impose an adult sentence in

this case, it was not “clear” or “obvious” error requiring this court’s review. See In re M.W.,

232 Ill. 2d 408, 431 (2009) (“the term ‘plain’ as used in the plain-error rule is synonymous with

‘clear’ or ‘obvious’; error is not plain if the law was ‘unclear at the time of trial but becomes

clear on appeal because the applicable law has been clarified’ ” (quoting United States v.

Olano, 507 U.S. 725, 734 (1993)). The State’s point is not well taken. At the time of

defendant’s sentencing, King had been decided, but no appellate court had interpreted that

decision to apply to circumstances like those in the present case, where defendant was

convicted of an uncharged, non-automatic transfer offense. After defendant was convicted of

second degree murder, an offense “not covered by” section 5-130(1)(a) of the Act, the trial

court proceeded to sentence defendant as an adult pursuant to section 5-130(1)(c)(i). This was

clear and obvious error because it directly violated the express language in the statute.3

Subsequent to defendant’s sentencing, the appellate court in People v. Toney, 2011 IL App (1st)

3

090933, ¶¶ 48-51, applied King to circumstances in which a minor was charged and tried for first

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¶ 40 III. Remedy

¶ 41 Having determined that the trial court erred in imposing an adult sentence in violation of

the statute and that this error was so serious that it affected the fairness of defendant’s sentence

and challenged the integrity of the judicial process (People v. Herron, 215 Ill. 2d 167, 186-87

(2005)), we must decide the appropriate remedy.4 The record demonstrates that, immediately

following the verdict, the trial court ordered a presentence investigation and scheduled a date

for sentencing. The sentencing hearing took place 49 days after the verdict. The trial court

considered evidence in aggravation and mitigation and proceeded to sentence defendant as an

adult to 18 years in prison. At no time after the guilty finding did the trial court suggest to the

parties that defendant was subject to juvenile sentencing. The State thus had no reason to

request a hearing for the purpose of sentencing defendant under the Unified Code of

Corrections. Accordingly, we find that the proper resolution is to remand the cause to the trial

court with directions to vacate defendant’s sentence and allow the State to file a petition

requesting a hearing for adult sentencing pursuant to section 5-130(1)(c)(ii). Should the trial

court find after the hearing that defendant is not subject to adult sentencing, the proper remedy

is to discharge the proceedings against defendant since he is now over 21 years of age and is no

longer eligible to be committed as a juvenile under the Act. See 705 ILCS 405/5-755(1) (West

2008) (a defendant’s commitment under the Act terminates automatically upon his or her

twenty-first birthday); In re Jaime P., 223 Ill. 2d 526, 539-40 (2006).

¶ 42 CONCLUSION

¶ 43 For the foregoing reasons, the judgments of the lower courts are reversed. The cause is

remanded to the trial court with directions to vacate defendant’s sentence and allow the State to

file a petition requesting a hearing pursuant to section 5-130(1)(c)(ii) of the Juvenile Court Act.

705 ILCS 405/5-130(1)(c)(ii) (West 2008). In accord with the timeline provided in the statute,

the State must file its motion within 10 days of the date the trial court vacates defendant’s

sentence.

¶ 44 Judgments reversed; cause remanded with directions.

¶ 45 CHIEF JUSTICE KARMEIER, dissenting:

¶ 46 My colleagues reverse and remand for a new sentencing hearing on the grounds that the

crime for which defendant was ultimately convicted—second degree murder—was not a

“ ‘charge[ ] arising out of the same incident’ ” as the first degree murder charges which

warranted his prosecution under the Criminal Code of 1961 pursuant to section 5-130 of the

Juvenile Court Act of 1987. Supra ¶ 1 (quoting 705 ILCS 405/5-130(1)(a) (West 2008)). That

is incorrect as a matter of law. Second degree murder is not a separate crime from first degree

murder. It is not an “alternative to first degree murder.” People v. Parker, 223 Ill. 2d 494, 506

degree murder but convicted only of the uncharged offense of second degree murder. Toney is hereby

overruled.

4

Defendant argues in the alternative that his attorney was ineffective for failing to object to the

automatic imposition of his adult sentence. We need not reach this issue given our decision to review

the statutory violation under principles of plain error.

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(2006). It is not a lesser-included offense of first degree murder.5 Rather, it is a mitigated form

of the same crime. People v. Wilmington, 2013 IL 112938, ¶ 48 (citing People v. Jeffries, 164

Ill. 2d 104, 122 (1995), and People v. Toney, 2011 IL App (1st) 090933, ¶ 47); People v.

Staake, 2016 IL App (4th) 140638, ¶ 69. Correspondingly, a charge of second degree murder is

incorporated into every charge of first degree murder. The elements of the two offenses are the

same. The only thing that distinguishes them is that for a defendant to be convicted of second

degree murder, he or she must have met the burden of establishing a mitigating factor after the

State has proven the charge of first degree murder beyond a reasonable doubt.6 Jeffries, 164

Ill. 2d at 118 (“A first degree murder charge will be reduced to second degree murder only

where the State has proven the elements of first degree murder and the defendant has

established a mitigating factor by a preponderance of the evidence.” (Emphases added and in

original.)).

¶ 47 Because second degree murder is merely a variant of first degree murder and not a separate

offense, Illinois law does not require, and did not require in this case, that it be charged

separately. By charging first degree murder, the State was simultaneously charging defendant

with second degree murder. Because the charge of first degree murder was sufficient to trigger

the automatic transfer provision of section 5-130 and because the charge for which defendant

was ultimately found guilty—second degree murder—was merely a variant of that same

qualifying offense and not a different or lesser-included offense, it therefore cannot be said that

the defendant here was convicted of an offense for which he had not been charged. To the

contrary, he quite clearly was. Defendant was found guilty of second degree murder, and the

State had leveled a charge of second degree murder against him when it charged him with first

degree murder. The trial court was therefore entirely correct when it sentenced defendant as an

adult.

¶ 48 The majority attempts to avoid this conclusion by pointing to authority that permits the

State to charge second degree murder without also charging first degree murder. I do not

question that authority. It does not, however, support the majority’s conclusions. To say that a

charge may be filed separately, which is what our case law holds (People v. Mohr, 228 Ill. 2d

53, 66 (2008)), is quite different than holding that the charge must be filed separately to avoid

the issue presented in this case. These are entirely different matters. That the State has the

option of proceeding directly under second degree murder in no way alters the principle that

second degree murder is merely a mitigated form of first degree murder and that a charge of

5

To convict a defendant of a lesser-included offense, “ ‘the evidence must be such that a jury could

rationally find the defendant guilty of the lesser offense, yet acquit him of the greater.’ ” People v.

Wilmington, 2013 IL 112938, ¶ 47 (quoting People v. Medina, 221 Ill. 2d 394, 410 (2006)). That is not

the case with second degree murder. Defendant must be found to have committed first degree murder,

as charged.

6

The majority holds that the “trial court found that the State had proved all of the necessary

elements for first degree murder but the evidence supported a mitigating factor, which reduced the

crime to second degree murder.” Supra ¶ 32. The majority then contradicts this statement by opining

that the defendant’s first degree murder charge was “ultimately rejected by the trier of fact.” Supra ¶ 35.

This is incorrect. The first degree murder charge was not rejected; rather, the trier of fact found that the

State successfully proved the charge of first degree murder but also found that defendant proved the

existence of a mitigating factor.

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second degree murder is present whenever a charge of first degree murder is leveled against a

defendant. No Illinois authority holds to the contrary. By charging second degree murder

alone, the State is merely “alleg[ing] that it can prove the elements of first degree murder, but

conced[ing] that mitigating factors are present.” Id.

¶ 49 Under the majority’s view, in order to avoid the issue here, the State would have been

required to expressly and simultaneously charge first degree murder and second degree

murder. Such a charging strategy, however, would be self-defeating. By charging defendant

with second degree murder, the State would be conceding the presence of a mitigating factor

and effectively admitting that it could not obtain a conviction for first degree murder.7

¶ 50 As this court’s statement in Jeffries suggests, a charge of first degree murder will be

reduced to a subsumed charge of second degree murder, and a resultant second degree murder

conviction, where a defendant has proven a mitigating circumstance. Jeffries, 164 Ill. 2d at

118. In sum, a charge of second degree murder is incorporated in every charge of first degree

murder. Defendant was thus convicted of a charged offense arising out of section 5-130 of the

Act and was properly sentenced under the Unified Code of Corrections.

¶ 51 For the foregoing reasons, I respectfully dissent.

¶ 52 JUSTICES THOMAS and KILBRIDE join in this dissent.

7

The majority also attempts to “illustrate the injustice of the State’s position” by envisioning “a

scenario in which defendant is initially charged only with second degree murder” (supra ¶ 35), but this

invitation to participate in an unrealistic hypothetical is a nonstarter. Why, in this case, when the State

had to prove defendant guilty of first degree murder in any event, would the State concede, at the outset,

defendant’s subjective, unreasonable belief in the need to shoot the victim? Even in defendant’s

self-serving version of events, he fired—accidentally he claimed—the first shot and then fired at least

one subsequent shot, though he never actually saw the victim in possession of a weapon. Moreover, the

majority apparently agrees (see supra ¶¶ 37-38) that conviction of any other charged nonspecified

offense attendant to a charge for first degree murder (for example, aggravated battery, generally a Class

3 felony)—or attendant to any other charge “specified in” section 5-130(1)(a)—would, irrespective of

the disposition of the “specified” offense, subject a defendant to sentencing as an adult, a result clearly

contemplated by the legislature, as we held in King. So what, exactly, would be unjust in this situation?

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