The opinion of the court was delivered by: Justice McBRIDE
Appeal from the Circuit Court of Cook County
Honorable Dennis A. Dernbach, Judge Presiding.
Fifteen-year-old defendant Adam Pena was arrested for his role in a shooting that occurred on February 11, 1998. Pursuant to a motion filed by the State, the case was transferred from the juvenile division to criminal court, where defendant was subsequently charged with attempted first degree murder, aggravated battery with a firearm, armed violence, and three counts of aggravated battery. Following a bench trial, defendant was found guilty of attempted first degree murder and sentenced to 18 years in prison. The statutory provision pursuant to which defendant was transferred from juvenile to criminal court was part of an act that has since been declared unconstitutional. Defendant appeals, contending that, due to the unconstitutionality of the act under which he was transferred to criminal court, his conviction should be vacated and the case remanded to juvenile court for further proceedings.
Defendant was arrested after he was identified as one of two persons involved in an incident in which victim David Alcantar was shot six times. Defendant was 15 years old at the time of his arrest. His case was initially referred to the juvenile division of the circuit court. The State then filed a motion to permit prosecution of a minor under the criminal laws. The State based its transfer request on section 5-4(3.3) of the Juvenile Court Act of 1987 (705 ILCS 405/5-4(3.3) (West 1996). Under section 5-4(3.3), where certain conditions were met, a rebuttable presumption was created that a minor's case should be transferred to criminal court. 705 ILCS 405/5-4(3.3) (West 1996). On July 31, 1998, the State's motion was granted and the matter was transferred to criminal court.
A bench trial was subsequently held and defendant was found guilty of attempted first degree murder and sentenced to 18 years in prison.
The presumptive transfer provision pursuant to which defendant's case was transferred was enacted into law as part of Public Act 88-680, also known as the "Safe Neighborhoods Law," which became effective on January 1, 1995. Pub. Act 88-680, eff. January 1, 1995. On December 2, 1999, Public Act 88-680 was declared unconstitutional in its entirety by our supreme court as violative of the single subject rule of the Illinois Constitution. People v. Cervantes, 189 Ill. 2d 80, 723 N.E.2d 265 (1999).
Public Act 90-590 (Pub. Act 90-590, eff. January 1, 1999), otherwise known as the Juvenile Justice Reform Act, enacted presumptive transfer language (705 ILCS 405/5-805(2) (West 1998)) that was similar to the provision that had been in Public Act 88-680. For the purposes of this case, we will assume that Public Act 90-590 did not suffer from the same constitutional infirmities as Public Act 88-680.
On appeal, defendant contends that where Public Act 88-680 was found unconstitutional in its entirety, the presumptive transfer provision under which this case was transferred to criminal court in 1998 was void ab initio as of its effective date of January 1, 1995. Therefore, defendant concludes, his conviction must be vacated and his cause remanded to the juvenile court for further proceedings.
The State concedes that all of the provisions contained in Public Act 88-680, including the presumptive transfer provision, were void ab initio following Cervantes. The parties agree that where the Act was void ab initio, the state of the law was as if the act had never been passed. In re G.O., 191 Ill. 2d 37, 43, 727 N.E.2d 1003 (2000); People v. Gersch, 135 Ill. 2d 384, 390, 553 N.E.2d 281 (1990). The State further concedes that the matter must therefore be remanded for a new transfer hearing.
The parties disagree, however, on what law should be applied at the new transfer hearing. Defendant contends that, on remand, the circuit court should apply the transfer provisions as they existed prior to the enactment of Public Act 88-680. The State, however, maintains that the new transfer hearing should be conducted pursuant to the presumptive transfer provision enacted by the Juvenile Justice Reform Act and now in effect. 705 ILCS 405/5-805 (West Supp. 1999).
Defendant maintains there is no question that the "quantum of punishment" to which he could be subjected increases upon the transfer of his case to the criminal court. Therefore, defendant reasons, if the process through which a transfer could be accomplished were made easier by a change in the law that occurred after the offense was committed, then the retroactive application of that law would disadvantage him and violate ex post facto principles.
The clause prohibiting ex post facto laws found in Illinois' Constitution (Ill. Const. 1970, art. I, §16) has been read in step with the construction of its federal counterpart (U.S. Const., art. I, §9, cl.3). Fletcher v. Williams, 179 Ill. 2d 225, 229, 688 N.E.2d 635 (1997); Barger v. Peters, 163 Ill. 2d 357, 360, 645 N.E.2d 175 (1994). Under either provision, a criminal law will be considered ex post facto where it (1) is retrospective in that it applies to events occurring prior to its enactment, and (2) falls into one of the traditional categories of prohibited criminal laws. People v. Criss, 307 Ill. App. 3d 888, 896, 719 N.E.2d 776 (1999). These traditional categories include any statute that punishes as a crime an act previously committed and innocent when done; laws that make the punishment for a crime more burdensome after its commission; and statutes that deprive one charged with a crime of any defense available at the time when the act was committed. Collins v. Youngblood, 497 U.S. 37, 42, 111 L. Ed. 2d 30, 39, 110 S. Ct. 2715, 2719 (1990), citing Beazell v. Ohio, 269 U.S. 167, 169-70, 70 L. Ed. 216, 217, 46 S. Ct. 68, 68 (1925).
Defendant's contention that application of the current transfer provision would "disadvantage" him does not necessarily mean that application of the provision would violate ex post facto principles. The United States Supreme Court has "retreated from earlier opinions suggesting that changes affecting punishment automatically fall within the ex post facto prohibition if they operate to the 'disadvantage' of covered offenders." In re J.R., 302 Ill. App. 3d 87, 126, 704 N.E.2d 809 (1998). In California Department of Corrections v. Morales, 514 U.S. 499, 506 n.3, 131 L. Ed. 2d 588, 595 n.3, 115 S. Ct. 1597, 1602 n.3 (1995), the Supreme Court noted that after Collins "the focus of the ex post facto inquiry is not on whether a legislative change produces some ambiguous sort of 'disadvantage,' *** but on whether any such change alters the definition of criminal conduct or increases the penalty by which a crime is punishable." See also Fletcher, 179 Ill. 2d at 234, quoting Morales, 514 U.S. at 506 n.3, 131 L. Ed. 2d at 595 n.3, 115 S. Ct. at 1602 n.3. Our own Illinois Supreme Court, in discussing the traditional ex post facto category of laws that increase punishment, noted that, following Collins, if a law does not make more burdensome the punishment for a crime after its commission, "it is of no moment that the law may work to a prisoner's disadvantage." Barger, 163 Ill. 2d at 361-62; see also Fletcher, 179 Ill. 2d at 234 (noting that, in Morales, the Supreme Court had "reaffirmed its rejection of an offender's 'disadvantage' as an element in the test for determining whether a criminal law was ex post facto").
Under the presumptive transfer provision enacted in Public Act 90-590 and now in effect (705 ILCS 405/5-805(2) (West Supp. 1999)), defendant's case may be transferred to criminal court or may remain in juvenile court. Significantly, even if the new provision does not apply and the court on remand were to use the discretionary transfer provision that existed prior to Public Act 88-680, defendant might still be subject to prosecution under the criminal laws. 705 ILCS 405/5-4(3) (West 1992). The presumptive transfer provision now in effect did not, therefore, by virtue of its enactment, either create the possibility of defendant being transferred to criminal ...