2016 IL App (1st) 141456
FOURTH DIVISION December 15, 2016
No. 1-14-1456
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 13 CR 8824 ) ANTHONY SCOTT, ) Honorable ) Nicholas Ford, Defendant-Appellant. ) Judge Presiding.
PRESIDING JUSTICE ELLIS delivered the judgment of the court, with opinion. Justices Howse and Burke concurred in the judgment and opinion.
OPINION
¶1 Defendant Anthony Scott, along with his codefendant Keith Lucious, were charged with
armed robbery, aggravated robbery, and aggravated unlawful restraint for accosting a woman in
an alley and taking two backpacks from her. Defendant was 16 years old at the time of the
offense, and codefendant was 15 years old. Defendant and codefendant were tried at a joint
bench trial and convicted of aggravated robbery and unlawful restraint.
¶2 In this appeal, defendant alleges that his trial attorney was ineffective for failing to file a
motion to quash his arrest and suppress evidence obtained from him, where the description
relayed to the police officers was too vague to support the officer’s detention of defendant and
codefendant in the area. For the reasons stated below, we decline to reach this question because
the record is insufficient to fully assess whether the police had a reasonable, articulable suspicion
sufficient to support the officers’ investigatory stop. We thus affirm defendant’s conviction for
aggravated robbery.
¶3 We agree with defendant’s claim that his unlawful-restraint conviction must be vacated
pursuant to the one-act, one-crime doctrine. We also agree that an amendment to the automatic No. 1-14-1456
transfer provision of the Juvenile Court Act of 1987, which excluded the offense of armed
robbery from the list of offenses requiring automatic transfer of a juvenile to adult court, applied
retroactively to his case. Accordingly, we vacate defendant’s sentence for aggravated robbery
and remand for resentencing to the juvenile court, with directions that the State be permitted the
opportunity to seek a discretionary transfer to adult court.
¶4 I. BACKGROUND
¶5 The State charged defendant with armed robbery predicated on his and codefendant’s
being armed with a firearm during the robbery, aggravated robbery, and aggravated unlawful
restraint. The aggravated robbery charge alleged that, on April 5, 2013, defendant and
codefendant committed a robbery “while indicating verbally, or by their actions *** that they
were presently armed with a firearm or other dangerous weapon.”
¶6 At the time of defendant’s trial, armed robbery committed with a firearm by an offender
who was at least 15 years old was an offense requiring defendant’s case to be transferred to adult
court without a hearing. 705 ILCS 405/5-130(1)(a) (West 2012). Both defendant and
codefendant elected to have bench trials.
¶7 Naritza Castellanos testified that, at 10:30 a.m. on April 5, 2013, she was distributing
fliers in an alley near 4251 West Haddon Avenue in Chicago. Castellanos was carrying two
backpacks with her. The backpacks contained fliers, keys, a cell phone, and $20 in cash.
¶8 She testified that two young men, whom she identified as defendant and codefendant,
approached her and asked her for money. She said she did not have any, and codefendant hit her
in her face and stomach. Defendant and codefendant threw Castellanos to the ground, took her
backpacks, and fled. Castellanos also testified that codefendant pressed a gun to her right temple
while she was on the ground.
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¶9 Castellanos testified that defendant had red hair and that codefendant wore “like braids or
bows” in his hair. Castellanos said that codefendant wore a black and brown checkered jacket,
and defendant wore a black jacket.
¶ 10 Shortly after defendant and codefendant fled, a passerby loaned his cell phone to
Castellanos so that she could call the police. She testified that, a few minutes after she called the
police, she saw defendant again in the same area, but he had changed into a white jacket with red
lettering on the back. Some time later, the police brought defendant and codefendant to
Castellanos in a squad car, and Castellanos identified them as the boys who had robbed her.
¶ 11 Officer Michna testified that he and his partner responded to a call of a robbery near
Thomas Street and Kildare Avenue. The prosecutor asked Michna if he was given “a description
of any sort regarding the robbery,” and Michna replied, “Just it was armed robbery and two male
black teens.” The court interjected, “I think she means the description of the individuals
involved,” and Michna said, “Two male black teens.”
¶ 12 Michna saw two black teenagers about two blocks from the scene of the incident, whom
he identified as defendant and codefendant, and approached them in his car. Michna said that one
of them “had braids and the other one had orangish-red hair.” Michna asked where they were
coming from, and defendant and codefendant “gave conflicting stories.” Michna testified that he
and his partner put defendant and codefendant into their squad car and drove them back to
Castellanos’s location to conduct a showup. Castellanos identified defendant and codefendant as
the robbers.
¶ 13 After Castellanos identified defendant and codefendant, they were placed under arrest
and searched. The police recovered a set of keys from defendant, which Castellanos identified as
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her keys. Defendant and codefendant did not have a cell phone or any money on them. Michna
testified that no firearm was recovered in connection with the robbery.
¶ 14 On cross-examination, defendant’s counsel asked Michna if he stopped defendant and
codefendant simply because of their proximity to the site of the robbery, and Micha replied, “No,
based on the red hair. They were male teens, black teens.” He also testified that he saw them less
than two blocks from the reported site of the robbery.
¶ 15 Detective Suzanne Chevalier testified that she, an assistant State’s Attorney (ASA), and a
youth officer questioned defendant about the robbery. Defendant said that he and codefendant
skipped school that day to go shoe shopping. They saw Castellanos in an alley and decided to
take her backpacks.
¶ 16 Chevalier testified that defendant admitted that he and codefendant approached
Castellanos, threw her to the ground, and took her backpacks. Defendant added that “he told the
victim, don’t make [codefendant] shoot you.” Defendant also said that he did not know why he
said, “don’t make him shoot you,” because codefendant “only had a cell phone with him.”
Defendant said that he found keys in one of the backpacks, and that, after the robbery, he and
codefendant walked around the neighborhood looking for Castellanos’s car “so that they could
take it.”
¶ 17 After Detective Chevalier testified, the State rested. Defendant moved for a directed
finding on the armed robbery count, which the court granted.
¶ 18 Neither defendant nor codefendant elected to testify or present any evidence.
¶ 19 The trial court found defendant guilty of aggravated robbery and unlawful restraint.
Defense counsel filed a motion for a new trial, which the trial court denied.
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¶ 20 Because defendant had been acquitted of the offense that led to his being tried in adult
court (i.e., armed robbery with a firearm), the State moved to have defendant sentenced as an
adult, noting that he was 16 years old and was on juvenile probation. See 705 ILCS 405/5-
130(1)(c)(ii) (West 2012) (permitting State to move for adult sentencing when juvenile charged
with automatic-transfer offense is acquitted of automatic-transfer offense and convicted of
another, non-automatic-transfer offense). Defense counsel argued that defendant was a
“follower,” that it was not his idea to rob Castellanos, and that defendant had been in special
education classes in school. The court granted the State’s motion, citing defendant’s criminal
history and the fact that this offense involved violence.
¶ 21 The court sentenced defendant to five years’ incarceration for aggravated robbery.
Defendant’s mittimus also reflects a three-year sentence for “aggravated unlawful restraint.”
Defendant appeals.
¶ 22 II. ANALYSIS
¶ 23 A. Ineffective Assistance of Counsel/Motion to Suppress
¶ 24 Defendant first contends that his attorney was ineffective for failing to file a motion to
quash his arrest and suppress Castellanos’s identification of him at the scene of the robbery, the
keys found on defendant’s person, and defendant’s subsequent statement to the police and ASA.
Defendant claims that the record shows that the police stopped him without any reasonable
suspicion that he had committed a crime, leading to the illegal recovery of that evidence. The
State argues that the police had reasonable suspicion based on the description of the robbers
given by Castellanos and the inconsistent answers given by defendant and codefendant.
¶ 25 Having reviewed the record, we decline to reach the merits of defendant’s ineffectiveness
argument because the record is insufficient to fully assess the merits of a possible motion to
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suppress. Our supreme court has stated that “where *** the defendant’s claim of ineffectiveness
is based on counsel’s failure to file a suppression motion, the record will frequently be
incomplete or inadequate to evaluate that claim because the record was not created for that
purpose.” People v. Henderson, 2013 IL 114040, ¶ 22; see also People v. Bew, 228 Ill. 2d 122,
133-35 (2008) (declining to reach issue of counsel’s ineffectiveness for failing to file motion to
suppress); People v. Evans, 2015 IL App (1st) 130991, ¶ 34 (“After reviewing the record here,
we decline to consider defendant’s claim of ineffective assistance of trial counsel because the
record is devoid of evidence that would allow this court to adjudicate whether trial counsel’s
decision to not file a motion to suppress was strategic, whether the motion would have been
granted, or whether [the police] acted lawfully under the circumstances.”).
¶ 26 At trial, Officer Michna did not recount the specifics of the call he received that led him
to search for the robbery suspects. He testified that codefendant’s red hair stood out to him, but
he did not say whether the dispatch included a description of the suspect as having red hair. Nor
did Michna testify to the content of defendant and codefendant’s inconsistent responses to his
questions, which was his reason for putting the boys in the squad car. All of these facts would be
relevant to determining whether Michna was justified in apprehending defendant, but the record
does not reveal them. Moreover, there was very little testimony about the circumstances between
defendant’s arrest and his confession, which would be relevant to determining whether his
statement was sufficiently attenuated from any illegal detention to justify its admission.
¶ 27 Our conclusion is supported by the decision in People v. Millsap, 374 Ill. App. 3d 857,
863 (2007), where this court declined to reach the issue of counsel’s ineffectiveness for failing to
file a motion to suppress where “[t]he circumstances leading up to the stop of the [defendant’s]
vehicle were only briefly described at the preliminary hearing and trial.” The operative issue in
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Millsap, as in this case, would have been whether the police lacked a reasonable, articulable
suspicion to stop the defendant. Id. at 862-63. And, like this case, the record did not show the full
description of the suspect given to the police, making a full analysis of that question impossible.
Id. at 860.
¶ 28 Our conclusion is further supported by the nature of the inquiry posed by defendant’s
claim. An analysis of the existence of a reasonable, articulable suspicion is a fact-intensive
inquiry requiring us to consider the totality of the circumstances surrounding the interaction
between the police and the defendant. United States v. Arvizu, 534 U.S. 266, 273 (2002); People
v. Timmsen, 2016 IL 118181, ¶ 14. The same is true for the question of attenuation. See Brown v.
Illinois, 422 U.S. 590, 603 (1975) (attenuation must be decided “on the facts of each case,” and
“[n]o single fact is dispositive”). Only with a sufficient factual picture could we determine
whether Michna had enough information to justify his detention of defendant or whether the
recovery of the keys and defendant’s confession were sufficiently attenuated from any illegality.
Here, there are simply too many unanswered questions to make either of those determinations.
¶ 29 Because the record does not fully disclose the possible reasons for the police’s actions in
this case, we cannot address defendant’s claim that his attorney was ineffective for filing a
motion to suppress.
¶ 30 B. Mittimus Correction & One-Act, One-Crime
¶ 31 Next, defendant contends that his conviction for unlawful restraint should be vacated
under the one-act, one-crime doctrine and that his mittimus should be corrected to reflect a
conviction for unlawful restraint rather than aggravated unlawful restraint and to reflect the
correct term of mandatory supervised release (MSR) for his unlawful restraint conviction.
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¶ 32 We first discuss defendant’s one-act, one-crime argument because, if defendant’s
unlawful restraint conviction violates the one-act, one-crime doctrine, that conviction must be
vacated, rendering a correction of the mittimus moot. See In re Samantha V., 234 Ill. 2d 359, 379
(2009) (when one-act, one-crime doctrine violated, less serious conviction should be vacated).
¶ 33 We recently resolved this issue in codefendant’s appeal in People v. Lucious, 2016 IL
App (1st) 141127, ¶ 58. There, as in this case, the parties agreed that codefendant’s unlawful
restraint conviction had to be vacated under the one-act, one-crime doctrine because it involved
the same conduct constituting the aggravated robbery. Id. For the same reasons we stated in
Lucious, we agree with the parties that defendant’s unlawful restraint conviction must be vacated
pursuant to the one-act, one-crime doctrine.
¶ 34 Having vacated his conviction for unlawful restraint, we need not decide whether the
mittimus needs to be corrected. We direct the clerk of the circuit court to issue a new mittimus
omitting any reference to the now-vacated unlawful restraint count, including any reference to
his MSR term for unlawful restraint.
¶ 35 C. Transfer to Adult Court
¶ 36 In his opening brief, defendant alleged that section 5-130 of the Juvenile Court Act of
1987 (Act) (705 ILCS 405/5-130 (West 2012)), which required him to be tried as an adult
because the State charged him with armed robbery with a firearm, violated the constitutional
principles of procedural and substantive due process. In a supplemental brief, defendant contends
that the amendments to section 5-130 contained in Public Act 99-258, § 5 (eff. Jan. 1, 2016)
(amending 705 ILCS 405/5-130(1)(a)), which removed armed robbery with a firearm from the
list of offenses requiring automatic-transfer to adult court, apply to his case.
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¶ 37 We first address defendant’s supplemental brief argument. That is because, if defendant
is correct that the amendments to section 5-130 apply to him, he was not eligible for automatic
transfer, and we would not need to address the constitutionality of section 5-130 prior to the
amendments. See People v. White, 2011 IL 109689, ¶ 148 (“[I]t is a fundamental rule of judicial
restraint that a court not reach constitutional questions in advance of the necessity of deciding
them.” (Emphasis omitted.)). Thus, we turn to the question of whether the amendments to section
5-130 apply to defendant.
¶ 38 1. Public Act 99-258
¶ 39 In Public Act 99-258, § 5 (eff. Jan. 1, 2016) (amending 705 ILCS 405/5-130(1)(a)), the
General Assembly removed armed robbery committed with a firearm from the list of offenses for
which a juvenile must be automatically tried in adult court. At the time of defendant’s
prosecution, section 5-130 required that all juveniles 15 years old and up be tried as adults when
they were charged with armed robbery committed with a firearm. 705 ILCS 405/5-130(1)(a)
(West 2012).
¶ 40 In his supplemental brief, defendant contends that Public Act 99-258 applies retroactively
to cases, like his, that were pending on direct appeal when it passed. Defendant notes that the
amendment to section 5-130 in Public Act 99-258 did not include language limiting it to
prospective application and that procedural amendments like Public Act 99-258 generally apply
retroactively to cases pending on appeal.
¶ 41 The Illinois Supreme Court recently resolved the retroactivity of Public Act 99-258’s
amendment to section 5-130 in People ex rel. Alvarez v. Howard, 2016 IL 120729. In Howard,
the defendant was charged with a murder he allegedly committed when he was 15 years old. Id.
¶¶ 3-4. At the time the defendant was charged, section 5-130 required all juveniles 15 and older
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to be automatically transferred to adult court when they were charged with first-degree murder.
Id. ¶ 4. While the charges against the defendant were pending, the legislature passed Public Act
99-258, which amended section 5-130 to raise the age of automatic transfer from 15 to 16. Id.
¶ 5. The defendant filed a motion to hold a hearing on whether he should be transferred, and the
trial court granted that motion. Id. ¶¶ 5, 7. The State then sought leave to file an action for a writ
of mandamus in the Illinois Supreme Court, asking for a writ compelling the trial court to keep
the case in adult court. Id. ¶ 10.
¶ 42 The Illinois Supreme Court denied the State’s request for the writ because the court
determined that the amendments to section 5-130 found in Public Act 99-258 applied
retroactively. Id. ¶¶ 28, 35. The court noted that it had adopted the United States Supreme
Court’s test from Landgraf v. USI Film Products, 511 U.S. 244 (1994), when addressing the
retroactivity of legislation. Howard, 2016 IL 120729, ¶ 19. When applying the Landgraf test, a
court should first look to whether the legislature clearly indicated the temporal reach of the
amended statute. Id. If it did, then the legislature’s expression of its intent controls, absent some
constitutional problem. Id. If the legislature did not signal its intent, then the court looks to
whether application of the statute “would have a retroactive impact.” Id.
¶ 43 But, the supreme court noted, “an Illinois court will never need to go beyond step one of
the Landgraf test because the legislature has clearly set forth the temporal reach of every
amended statute.” Id. ¶ 20. That is because section 4 of the Statute on Statutes (5 ILCS 70/4
(West 2014)) constitutes a “general savings clause” that has been interpreted “as meaning that
procedural changes to statutes will be applied retroactively, while substantive changes are
prospective only.” Howard, 2016 IL 120729, ¶ 20. In other words, if the statutory amendment
itself does not indicate its temporal reach, “it is provided by default in section 4.” Id.
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¶ 44 The supreme court then applied that version of the test to the amendments to section 5-
130. Id. ¶¶ 21, 28. The court found “nothing in the text of the amendment itself that indicates the
statute’s temporal reach,” noting that the amendment to section 5-130 did not contain a savings
clause even though other portions of Public Act 99-258 did. Id. ¶ 21. The court then found that
the amendments to section 5-130 were procedural, relying on precedent establishing that the
decision to try a defendant in juvenile or adult court is a procedural one. Id. ¶ 28 (citing People v.
Patterson, 2014 IL 115102, ¶ 104). Because the amendments were procedural, the default
legislative intent in section 4 of the Statute on Statutes applied and the amendments were
retroactive. Howard, 2016 IL 120729, ¶ 28.
¶ 45 Howard resolves the question of retroactivity presented in this case. We recognize that
the specific provision at issue in Howard was the age-threshold increase in Public Act 99-258,
whereas this case involves Public Act 99-258’s removal of armed robbery committed with a
firearm from the list of automatic-transfer offenses. But, in making these changes, Public Act 99-
258 amended the same statutory provision: section 5-130. The supreme court thus addressed the
same question we are faced with here; namely, whether the amendments to section 5-130
contained in Public Act 99-258 are retroactive. Thus, Howard is directly on point.
¶ 46 We also acknowledge that the procedural posture of this case differs slightly from the
procedural posture before the court in Howard. Specifically, the case in Howard was pending
before the trial court when Public Act 99-258 was passed, whereas this case was pending on
appeal when the amendment was enacted. But under either circumstance, we would apply the
same test. See, e.g., People v. Glisson, 202 Ill. 2d 499, 503-04 (2002) (applying section 4 of
Statute on Statutes to question of retroactivity of statutory amendment passed while case pending
on direct appeal); People v. Digirolamo, 179 Ill. 2d 24, 49-50 (1997) (deciding retroactivity of
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statutory amendment passed while case pending on direct appeal). Thus, the fact that defendant’s
case was pending on direct appeal when Public Act 99-258 was passed does not change the
controlling effect of Howard.
¶ 47 The State contends that Public Act 99-258 should be applied prospectively because it had
a delayed effective date, noting that it was passed on May 19, 2015 but did not come into effect
until January 1, 2016. The State refers to the default rule, found in the Effective Date of Laws
Act (5 ILCS 75/0.01 et seq. (West 2014)), that any laws passed before June 1 in any year become
effective on January 1 of the following year. 5 ILCS 75/1(a) (West 2014). The State claims that,
because the legislature passed Public Act 99-258 knowing that, under the Effective Date of Laws
Act, it would not go into effect until the following year, it signaled its intent to delay the
effective date of the law. See General Motors Corp. v. Pappas, 242 Ill. 2d 163, 187 (2011)
(“[T]he delayed implementation date of [an] amendment indicates a clear legislative intent for
the prospective application of the provision.”).
¶ 48 But the supreme court rejected an identical argument in Howard, 2016 IL 120729, ¶¶ 22-
27. We are bound to follow the supreme court’s decision that the Effective Date of Laws Act
does not signal the legislature’s intent to give amendments a prospective effect.
¶ 49 The State also contends that the legislature signaled its intent to have Public Act 99-258
apply prospectively because section 15 of that bill provides that a trial court should consider
certain sentencing factors “[o]n or after the effective date of this amendatory Act of the 99th
General Assembly.” Pub. Act 99-258, § 15 (eff. Jan. 1, 2016) (adding 730 ILCS 5/5-4.5-105).
¶ 50 We recognize that the language identified by the State suggests that the legislature
intended for a prospective application. See, e.g., People v. J.S., 103 Ill. 2d 395, 410 (1984) (same
language suggested legislative intent for prospective application). But the State fails to recognize
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that that language is found in a different section of Public Act 99-258. The section at issue in this
case excludes armed robbery with a firearm from the list of offenses for which a juvenile may be
automatically transferred to adult court. The State seeks to import a statement from a different
section, which adds new factors a trial court must consider in sentencing a juvenile, to that
section. We see no reason to import the language from one of two different sections of Public
Act 99-258, enacting two entirely different provisions, to the other.
¶ 51 If anything, the legislature’s inclusion of the language, “On or after the effective date of
this amendatory Act of the 99th General Assembly,” in section 15 of Public Act 99-258 and
simultaneous exclusion of that language from section 5 of the same bill signals the legislature’s
intent to have the two sections have different applications. See Adames v. Sheahan, 233 Ill. 2d
276, 311 (2009) (“When [the legislature] includes particular language in one section of a statute
but omits it in another section ***, courts presume that [the legislature] has acted intentionally
and purposely in the inclusion or exclusion.”). In fact, in discussing the absence of language
signaling the temporal reach of the amendments to section 5-130, the supreme court noted that
“[t]he legislature did include a savings clause for other portions of Public Act 99-258, but it did
not do so with respect to the amendments to section 5-130.” Howard, 2016 IL 120729, ¶ 21. The
fact that the legislature signaled its intent to have a different section of Public Act 99-258, adding
a new section to an entirely separate statute, apply prospectively does not alter our conclusion
that the amendments to section 5-130 apply retroactively.
¶ 52 Having held that the amendment to section 5-130 applies retroactively, we must now
discuss the impact of the amendment on defendant’s case. In other cases where courts have
found this same amendment to be retroactive, they have vacated the defendants’ sentences and
remanded to provide the State an opportunity to petition to transfer the defendant to adult court.
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See, e.g., People v. Ortiz, 2016 IL App (1st) 133294, ¶ 36 (remanding case to juvenile court and
giving State “an opportunity to file a petition for a transfer hearing if it so chooses”); People v.
Patterson, 2016 IL App (1st) 101573-B, ¶ 21 (vacating defendant’s sentence and remanding case
to juvenile court “to permit the State to file a motion for transfer of the case to criminal court for
sentencing”).
¶ 53 This case differs from the ordinary circumstance, however. Generally, when a juvenile is
not charged with an offense requiring his automatic transfer to adult criminal court, the State
may seek a discretionary transfer to adult criminal court. See 705 ILCS 405/5-805(3)(a) (West
2014). When ruling on a transfer motion, the juvenile court must consider, “among other
matters,” the following factors:
“(i) the age of the minor;
(ii) the history of the minor, including:
(A) any previous delinquent or criminal history of the minor,
(B) any previous abuse or neglect history of the minor, and
(C) any mental health, physical, or educational history of the minor or
combination of these factors;
(iii) the circumstances of the offense, including:
(A) the seriousness of the offense,
(B) whether the minor is charged through accountability,
(C) whether there is evidence the offense was committed in an aggressive
and premeditated manner,
(D) whether there is evidence the offense caused serious bodily harm,
(E) whether there is evidence the minor possessed a deadly weapon;
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(iv) the advantages of treatment within the juvenile justice system including
whether there are facilities or programs, or both, particularly available in the juvenile
system;
(v) whether the security of the public requires sentencing under Chapter V of the
Unified Code of Corrections:
(A) the minor’s history of services, including the minor’s willingness to
participate meaningfully in available services;
(B) whether there is a reasonable likelihood that the minor can be
rehabilitated before the expiration of the juvenile court’s jurisdiction;
(C) the adequacy of the punishment or services.” 705 ILCS 405/5-
805(3)(b) (West 2014).
The court must give “greater weight to the seriousness of the alleged offense and the minor’s
prior record of delinquency than to the other factors.” Id. The rules of evidence apply at a
discretionary transfer hearing. 705 ILCS 405/5-805(4) (West 2014).
¶ 54 By contrast, in this case, defendant was charged with armed robbery with a firearm,
which, at the time he was charged, was an offense requiring that he be transferred to adult
criminal court. Ultimately, the court acquitted defendant of armed robbery with a firearm and
found him guilty of aggravated robbery, which was not an automatic-transfer offense.
¶ 55 In a case like this one—where the juvenile was initially charged with an automatic-
transfer offense, ultimately acquitted of the automatic-transfer offense, but also convicted of a
non-automatic-transfer offense—the State must file a motion to keep the juvenile in adult court
for sentencing. 705 ILCS 405/5-130(1)(c)(ii) (West 2014). In ruling on such a motion, the adult
criminal court must consider, “among other matters,” the six following factors:
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“(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.” Id.
The rules of evidence apply when hearing a motion to keep a juvenile in adult criminal court. Id.
¶ 56 Here, the trial court considered those six factors and decided that defendant should be
sentenced as an adult. Thus, this case differs from the other cases dealing with the retroactivity of
the amendments to section 5-130, in that the trial court already conducted a hearing on the
appropriateness of adult sentencing for defendant. See, e.g., Patterson, 2016 IL App (1st)
101573-B, ¶ 21 (noting that defendant received “no [transfer] hearing”).
¶ 57 Defendant contends that, in any event, a new transfer hearing is necessary because the
factors listed in the discretionary-transfer provision “are more developed, specific, and different
than those a court considers under section 5-130(1)(c)(ii).” The State offers no argument on this
point; it argues solely that the amendment has prospective effect.
¶ 58 We agree with defendant that the statutory factors attached to a decision to transfer a
juvenile to adult court in the first place are more detailed and extensive than those applicable to a
hearing on a motion to keep a juvenile in adult criminal court for sentencing. While the factors
generally cover the same topics—the juvenile’s age and history, the nature of the offense, and
the availability and suitability of services in the juvenile system—section 5-805(3)(b) of the Act
(705 ILCS 405/5-805(3)(b) (West 2014)) breaks down those considerations into much more
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specific subcategories. Given the greater specificity of the factors applicable to a decision to
transfer a juvenile to adult court—as opposed to a decision to keep an already-transferred
juvenile in adult court—we cannot say that the trial court’s decision on the State’s motion in this
case would necessarily be the same as the juvenile court’s decision on remand.
¶ 59 And as we noted above, the State offers no explanation for why the trial court’s decision
to keep defendant in the adult criminal court should be considered equivalent to a hypothetical
decision to transfer defendant from juvenile court to adult court. In fact, the State has not even
asserted that, on remand, it will seek to transfer defendant to adult criminal court. Without any
argument from the State, we are hesitant to find that the result of a hypothetical transfer hearing
would be the same as the hearing that took place below.
¶ 60 We vacate defendant’s sentence for aggravated robbery and remand for resentencing. On
remand, the State should have an opportunity to seek to transfer defendant to adult criminal
court, should it choose to do so.
¶ 61 2. Constitutionality of Automatic Transfer
¶ 62 Finally, defendant contends that section 5-130, which required him to be automatically
transferred to adult court at the time of his trial, violates the procedural and substantive due
process clauses of the United States and Illinois Constitutions. But having determined that Public
Act 99-258 applies retroactively to exempt defendant from the automatic-transfer provision, we
decline to address the constitutionality of that provision. See White, 2011 IL 109689, ¶ 148 (“[I]t
is a fundamental rule of judicial restraint that a court not reach constitutional questions in
advance of the necessity of deciding them.” (Emphasis omitted.)). 1
1 We also note that the Illinois Supreme Court recently rejected identical due-process challenges in Patterson, 2014 IL 115102, ¶¶ 93-98.
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¶ 63 III. CONCLUSION
¶ 64 For the reasons stated, we affirm defendant’s conviction for aggravated robbery. We
vacate his sentence for aggravated robbery and remand for resentencing. We direct the juvenile
court, on resentencing, to give the State the opportunity to seek a discretionary transfer to adult
criminal court, should the State choose to seek such a transfer. We vacate his conviction for
unlawful restraint pursuant to the one-act, one-crime doctrine.
¶ 65 Affirmed in part, vacated in part, and remanded with directions.
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