In re M.I., a Minor The People of the State of Illinois, Appellee,
JUSTICE GARMAN delivered the judgment of the court, with opinion. Chief Justice Kilbride and Justices Freeman, Thomas, Karmeier, Burke, and Theis concurred in the judgment and opinion.
¶ 1 Respondent, M.I., a minor, was adjudicated delinquent after the circuit court of Cook County found him guilty of three counts of aggravated discharge of a weapon and two counts of aggravated unlawful use of a weapon. Prior to trial, the State filed a motion to designate the proceedings as an extended jurisdiction juvenile (EJJ) prosecution pursuant to the Juvenile Court Act of 1987 (705 ILCS 405/5-810 (West 2008)). The trial court granted the motion and designated the case an EJJ prosecution. Following the respondent's adjudication as delinquent, the trial court sentenced the respondent to an indeterminate time in the juvenile division of the Illinois Department of Corrections (IDOC), which shall end no later than respondent's twenty-first birthday. The trial court also sentenced respondent to an adult sentence of 23 years in prison, which was to be imposed only if respondent failed to successfully complete his juvenile sentence. The appellate court affirmed. 2011 IL App (1st) 100865. This court allowed respondent's petition for leave to appeal. Ill. S.Ct. R. 315 (eff. Feb. 26, 2010). Respondent raises three arguments: (1) the statutory requirement to hold a hearing within 60days of the filing of an EJJ motion is mandatory, and the failure to hold such a hearing renders respondent's adult sentence void; (2) the EJJ statute is unconstitutionally vague because it does not specify what conduct results in the revocation of the stay on the adult sentence; and (3) the EJJ statute violates the holding in Apprendi v. New Jersey, 530 U.S. 466 (2000), that the United States Constitution guarantees that all sentencing enhancements be proven beyond a reasonable doubt. For the following reasons, we affirm the judgment of the appellate court, which affirmed the circuit court's judgment.
¶ 2 BACKGROUND
¶ 3 A petition for adjudication of wardship was filed by the State against respondent on April 24, 2009. The petition charged respondent, 16 years old, with three counts of aggravated discharge of a firearm (720 ILCS 5/24-1.2(a)(2), (3) (West 2008)), one count of reckless discharge of a firearm (720 ILCS 5/24-1.5 (West 2008)), three counts of aggravated unlawful use of a weapon (720 ILCS 5/24-1.6(a)(1) (West 2008)) and one count of unlawful possession of firearms (720 ILCS 5/24-3.1(a)(1) (West 2008)). On May 5, 2009, the State filed a motion to designate the proceeding as an EJJ prosecution pursuant to section 5-810 of the Juvenile Court Act of 1987. The motion alleged that respondent was charged with offenses that would constitute felonies, whether committed by a juvenile or an adult, and that "[t]here [was] probable cause to believe that the minor committed the offenses" contained in the motion. The motion indicated the State would appear in court on May 7, 2009, to request a hearing on the motion.
¶ 4 Respondent's case was continued several times before the EJJ hearing was actually held. On May 7, 2009, the cause was continued to May 21, 2009, for status, on the agreement of both parties. On May 21, 2009, the State asked for 30 days to be ready for the hearing and the cause was continued to June 22, 2009, for hearing on the State's EJJ motion, without objection from defense counsel. On June 22, 2009, respondent's new counsel filed his appearance and the public defender's office withdrew from the case. The State answered "not ready" for the hearing because it was still waiting for some of respondent's school records. Defense counsel did not object and suggested July 6 as the new date; the case was continued for status to July 6, 2009. On July 6, 2009, the cause was continued for the EJJ hearing to August 12, 2009, without objection.
¶ 5 The hearing on the State's motion for EJJ designation was held on August 12, 2009, 98 days after the filing of the motion. At the hearing, the State proffered evidence supporting "probable cause" for the charges against respondent. The proffer included a recitation of what officers and witnesses would testify to if called to the stand concerning the basis for the charges. The defense also made a proffer as to what the officers and its witness would testify to that tended to favor the defense. The court then heard arguments from the parties on whether the State had established probable cause. The court found probable cause had been established. The hearing moved to the next phase for the court to determine whether there was clear and convincing evidence that the case should not be designated an EJJ prosecution. Here, the court was presented with evidence concerning: (1) the seriousness of the offense; (2) respondent's history of delinquency; (3) respondent's age; (4) the culpability of respondent in committing the offense; (5) whether the offense was committed in an aggressive or premeditated manner; and (6) whether respondent used or possessed a deadly weapon when committing the offense. 705 ILCS 405/5-810(1)(b) (West 2008). The State presented the testimony of respondent's juvenile probation officer. Following the State's examination of the officer and defense counsel's cross-examination and the parties' arguments, the hearing concluded.
¶ 6 On September 1, 2009, the trial court found that, based on respondent's being 16 years old at the time of the offense and probable cause being established for the serious charges against respondent, a rebuttable presumption had been created that the case should be designated an EJJ prosecution. Thus, absent clear and convincing evidence that a stayed adult sentence along with a juvenile sentence would not be appropriate, the case would receive an EJJ prosecution designation. Following a recitation of the evidence presented at the EJJ hearing, the court found no clear and convincing evidence that a stayed adult sentence would be inappropriate. The court also noted that respondent had a previous conviction for aggravated unlawful use of a weapon in October 2008. Respondent was placed on probation for this conviction. The court granted the State's motion to designate the case an EJJ prosecution.
¶ 7 On October 15, 2009, respondent waived his right to a jury trial. Respondent again waived his right on November 20, 2009. At respondent's December 2009 bench trial, the evidence revealed that Chicago police responded to a large fight involving 30 to 40 individuals in April 2009. The officers were in plain clothes, but their police badges were displayed on the outside of their clothing. Upon arrival at the scene, Officer Kevin Kelly yelled, "police, stop, stop, stop." Officer Kevin Kelly and Sergeant Thomas Mason testified that, moments after police arrived on scene, respondent fired multiple gunshots in their direction. The trial court found respondent guilty beyond a reasonable doubt of three counts of aggravated discharge of a firearm, two counts of aggravated unlawful use of a weapon, and reckless discharge of a firearm. Respondent's sentencing hearing was held on February 25, 2010. The trial court, in denying respondent's motion for a new trial, vacated respondent's conviction for reckless discharge of a firearm, finding that the shooting could not be both reckless and intentional. The court then merged the third count of the aggravated discharge charge into the first count. The court also merged the two counts of aggravated unlawful use of a weapon into the first aggravated discharge of a firearm conviction. The court stated it was sentencing respondent based on the two counts of aggravated discharge of a firearm. The court sentenced respondent "for an indeterminate period" to the juvenile IDOC to end no later than his twenty-first birthday. The court also imposed a 23-year adult sentence, which was stayed pending the successful completion of the juvenile sentence.
¶ 8 The appellate court affirmed respondent's conviction and sentence. 2011 IL App (1st) 100865. The court ruled that the evidence presented at trial was sufficient to find respondent guilty of aggravated discharge of a firearm. The court further found that the EJJ statutory provision setting forth a 60-day time frame for conducting a hearing on the State's motion to designate the case an EJJ prosecution was directory, not mandatory, and thus the failure to hold the hearing within 60 days in respondent's case did not vitiate the subsequent EJJ proceedings or stayed adult sentence. 2011 IL App (1st) 100865, ¶ 52. The appellate court also found that respondent did not have standing to challenge the revocation of the stay on his adult sentence on vagueness grounds, since no petition to revoke had been filed and the stay itself had not yet been revoked. 2011 IL App (1st) 100865, ¶ 61.
¶ 9 In March 2012 the State filed a petition to revoke respondent's stayed adult sentence pursuant to section 5-810(6) of the EJJ statute, alleging that respondent had committed a new offense, delivery of a controlled substance. 720 ILCS 570/401(c)(1) (West 2010). Respondent was convicted at jury trial of the drug offense in December 2012. The State's petition to revoke respondent's stay on the adult sentence has been stayed pending our decision in this case.
¶ 10 ANALYSIS
¶ 11 On appeal to this court, respondent raises three issues: (1) whether the requirement in the EJJ statute that the trial court hold a hearing on the State's motion to designate the case an EJJ prosecution within 60 days of the motion's filing is mandatory or directory; (2) whether the EJJ statute is unconstitutionally vague in how it defines the conduct that will invoke the imposition of the adult sentence and whether the statute fails to provide adequate guidance to authorities called upon to enforce its provisions; and (3) whether the EJJ statute violates Apprendi because it subjects a juvenile defendant to increased punishment without requiring a jury to find proof beyond a reasonable doubt as to the facts qualifying a juvenile defendant for EJJ prosecution.
¶ 12 I. The 60-Day Hearing Requirement
¶ 13 Respondent contends that the provision in the EJJ statute that, upon the State's filing of a motion to designate the juvenile case an EJJ prosecution, requires that a hearing to be held within 60 days of the motion's filing is mandatory. Respondent further argues that because the 60-day requirement is mandatory, an adult sentence imposed pursuant to an EJJ hearing held outside the 60-day limit is void. The State counters that the 60-day hearing requirement is merely directory, and that a properly imposed adult sentence, even if rendered pursuant to an EJJ hearing held outside the 60-day limit, is not void.
¶ 14 The statutory provision at issue states:
"(2) Procedures for extended jurisdiction juvenile prosecutions. The State's Attorney may file a written motion for a proceeding to be designated as an extended juvenile jurisdiction prior to commencement of trial. Notice of the motion shall be in compliance with Section 5-530. When the State's Attorney files a written motion that a proceeding be designated an extended jurisdiction juvenile prosecution, the court shall commence a hearing within 30 days of the filing of the motion for designation, unless good cause is shown by the prosecution or the minor as to why the hearing could not be held within this time period. If the court finds good cause has been demonstrated, then the hearing shall be held within 60 days of the filing of the motion. The hearings shall be open to the public unless the judge finds that the hearing should be closed for the protection of any party, victim or witness. If the Juvenile Judge assigned to hear and determine a motion to designate an extended jurisdiction juvenile prosecution determines that there is probable cause to believe that the allegations in the petition and motion are true, the court shall grant the motion for designation. Information used by the court in its findings or stated in or offered in connection with this Section may be by way of proffer based on reliable information offered by the State or the minor. All evidence shall be admissible if it is relevant and reliable regardless of whether it would be admissible under the rules of evidence." 705 ILCS 405/5-810(2) (West 2008).
¶ 15 "Whether a statutory command is mandatory or directory is a question of statutory construction, which we review de novo." People v. Robinson, 217 Ill.2d 43, 54 (2005). When construing a statute, our primary objective is to ascertain and give effect to legislative intent, the surest and most reliable indicator of which is the statutory language itself, given its plain and ordinary meaning. People v. Giraud, 2012 IL 113116, ¶ 6. " 'In determining the plain meaning of statutory terms, we consider the statute in its entirety, keeping in mind the subject it addresses and the apparent intent of the legislature in enacting it.' " Id. (quoting People v. Perry, 224 Ill.2d 312, 323 (2007)).
¶ 16 The parties agree that the question facing the court is whether the statutory provision is mandatory or directory, not mandatory or permissive. See People v. Delvillar, 235 Ill.2d 507, 514 (2009) ("Resolution of this issue requires an explanation of two distinct questions that are, as this court has acknowledged, easily confused because they both contain the term 'mandatory.' "). Under the mandatory or directory question, "statutes are mandatory if the intent of the legislature dictates a particular consequence for failure to comply with the provision." Id. However, in the absence of such legislative intent "the statute is directory and no particular consequence flows from noncompliance." Id. at 515. There are consequences to a directory reading, but a directory reading "acknowledges only that no specific consequence is triggered by the failure to comply with the statute." (Emphasis added.) Id. In other words, the mandatory/directory question " 'simply denotes whether the failure to comply with a particular procedural step will or will not have the effect of invalidating the governmental action to which the procedural requirement relates.' " Robinson, 217 Ill.2d at 51-52 (quoting Morris v. County of Marin, 559 P.2d 606, 610-11 (Cal. 1977)).
¶ 17 "With respect to the mandatory/directory dichotomy, we presume that language issuing a procedural command to a government official indicates an intent that the statute is directory." Delvillar, 235 Ill.2d at 517. This presumption is overcome, and the provision will be read as mandatory, under either of two conditions: (1) when there is negative language prohibiting further action in the case of noncompliance or (2) when the right the provision is designed to protect would generally be injured under a directory reading. Id.
¶ 18 Neither condition applies in this case. First, concerning negative language, section 5-810(2) lacks any negative language prohibiting further action if the hearing is not held within 60 days of the motion's filing. There are no specific consequences prescribed in the provision at issue, or for that matter any other subsection of section 5-810, for the court's failure to hold a hearing on the State's EJJ prosecution motion within 60 days of the motion's filing. Respondent conceded as much at oral argument. After the sentence providing that the hearing must be held within 30 days of the motion's filing, or within 60 days if the court finds the State or the minor has shown good cause for why it could not be held within 30 days, the statute states that the hearing should be open to the public. The rest of the provision details the evidentiary and proof standards the court is to use in determining whether the case should be designated an EJJ prosecution. Thus, the EJJ statute itself does not contain specific consequences for noncompliance with its 60-day limit.
¶ 19 Although the provision states that "the court shall commence a hearing within 30 days of the filing of the motion for designation" (emphasis added) (705 ILCS 405/5-810(2) (West 2008)) "in no case regarding the mandatory/directory dichotomy has 'shall' controlled the outcome." Robinson, 217 Ill.2d at 53. Whenever the mandatory/directory dichotomy is at issue, as in this case, the word "shall" is not determinative. Robinson, 217 Ill.2d at 54. In Robinson, we were asked to interpret a provision in the Post-Conviction Hearing Act that addressed the procedures governing the circuit court when it determines that a postconviction petition is frivolous or patently without merit. 725 ILCS 5/122-2.1(a)(2) (West 2000). The statutory provision in question provided that the circuit court " 'shall dismiss the petition in a written order ***. Such order of dismissal is final and shall be served upon the petitioner by certified mail within 10 days of its entry.' " (Emphasis added.) Robinson, 217 Ill.2d at 50 (quoting 725 ILCS 5/122-2.1(a)(2) (West 2000)). The circuit clerk failed to serve the defendant with the order of dismissal until 12 days after the court entered the order, thus not complying with the statutory language requiring service within 10 days of the judgment. Id. at 47. We found that the negative language exception did not apply, however, despite the legislature's use of the word "shall, " as "the statute does not include negative words indicating that no dismissal shall occur or become effective unless the petitioner is timely served." I ...