Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois, Circuit No. 12-CF-57. Honorable Daniel J. Rozak, Judge, Presiding.
Josette M. Skelnik, of State Appellate Defender's Office, of Elgin, for appellant.
James Glasgow, State's Attorney, of Joliet (Judith Z. Kelly, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
PRESIDING JUSTICE McDADE delivered the judgment of the court, with opinion. Justices Holdridge and Lytton concurred in the judgment and opinion.
[¶1] Following a jury trial, defendant, Derrick Jones, was convicted of aggravated robbery, a Class 1 felony (720 ILCS 5/18-5(a) (West 2010)). The trial court found defendant extended-term eligible based, in part, on a prior adjudication of juvenile delinquency referenced in the presentence investigation report (PSI). The court imposed an extended-term sentence of 24 years' imprisonment. On appeal, defendant does not challenge his conviction, but does challenge his extended-term eligibility. He argues that his sentence violates the rules set forth in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). We affirm.
[¶3] Defendant was charged by indictment with aggravated robbery (720 ILCS 5/18-5(a) (West 2010)) and unlawful possession of a credit card (720 ILCS 5/17-32(b) (West 2010)). Prior to trial, the
State elected to proceed on only the first count of the indictment, aggravated robbery.
[¶4] Immediately before commencement of the jury trial, the court asked if the sentencing range on the aggravated robbery charge, a Class 1 felony, would be 4 to 30 years. The State responded that this was, indeed, the case. Assistant Public Defender Litricia Payne confirmed to the court that the State had tendered to her a docket sheet indicating that defendant had been previously adjudicated delinquent on multiple counts of residential burglary, and that those adjudications would make defendant's sentencing range in the present matter 4 to 30 years. Defendant, however, refuted having any such adjudications. Payne relayed this to the court:
" I did speak with [defendant] regarding that court docket and it was relayed back to me that he did not have any priors for residential burglary. So as far as my conversation went on that issue I left it at if that's the case that it's four to 15. But the docket that was tendered to me did indicate adjudications for residential burglary, which would make him four to 30."
[¶5] The court admonished defendant that he faced a sentencing range of 4 to 30 years' imprisonment. Because, as the court noted, this was the first time it had admonished defendant on this issue, the court allowed defendant to consult further with counsel. Following the discussion, Payne stated that defendant still wished to proceed to trial.
[¶6] The State's evidence at trial was limited to the facts related to the aggravated robbery; no evidence was introduced regarding defendant's prior adjudication of delinquency. After the trial, the jury returned a verdict finding defendant guilty of the charged offense. Following hearings on posttrial motions, the cause proceeded to sentencing.
[¶7] At sentencing, the court took into account, inter alia, a PSI. In a section labeled " Prior Record - Juvenile," the PSI listed a number of charges--including assault, burglary, criminal trespass to land, knowing damage to property, and three counts of residential burglary--brought in a delinquency proceeding filed under case No. 04 JD 00276. In the PSI, the description of that proceeding stated in part:
" On April 28, 2005, with the then minor, [defendant], having been adjudicated delinquent in the original Petition alleging Assault, and the 1st, 2nd and 3rd Supplemental Petitions alleging: Burglary, Criminal Trespass to Land, Knowingly Damage to Property and Residential Burglary, three (3) Counts. [Defendant] was sentenced to 5 years and 8 months Probation, until his 21st Birthday in the aforementioned offenses, with the first nine (9) months of Probation to be under the directive of Intensive Probation Supervision."
The State remarked that defendant was extended-term eligible, asking the court to impose a " lengthy" sentence. The court ultimately sentenced defendant to an extended-term sentence of 24 years' imprisonment. Defendant's motion to reconsider the sentence was denied.
[¶8] On appeal, defendant argues that the State failed to prove to a jury beyond a reasonable doubt the fact of defendant's prior juvenile adjudication or to allege that fact in the indictment. Accordingly, defendant contends, the court's decision to impose an extended-term sentence violated his sixth amendment right to a jury under the Supreme Court's ruling in Apprendi, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435Alternatively, defendant contends that the trial court improperly relied upon the PSI in determining the fact of defendant's prior adjudication
of delinquency, in contravention of the Supreme Court's ruling in Shepard, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205The State maintains that the Apprendi prior-conviction exception is applicable to juvenile adjudications and, as a result, it was not required to submit the fact of defendant's prior adjudication to a jury.
[¶10] I. Whether Apprendi 's Prior Conviction Exception Applies to Adjudications of Delinquency
[¶11] A. Introduction
[¶12] The offense of aggravated robbery is categorized as a Class 1 felony in Illinois. 720 ILCS 5/18-5(a) (West 2010). The standard sentencing range for a Class 1 felony is between 4 and 15 years' imprisonment. 730 ILCS 5/5-4.5-30(a) (West 2010). The extended-term sentencing range for a Class 1 felony is between 15 and 30 years' imprisonment. Id. Section 5-5-3.2(b) of the Unified Code of Corrections sets forth a number of factors that a court may consider as a reason to impose an extended-term sentence, including the following factor relevant here:
" When a defendant who was at least 17 years of age at the time of the commission of the offense is convicted of a felony and has been previously adjudicated a delinquent minor under the Juvenile Court Act of 1987 for an act that if committed by an adult would be a Class X or Class 1 felony when the conviction has occurred within 10 years after the previous adjudication, excluding time spent in custody." 730 ILCS 5/5-5-3.2(b)(7) (West 2010).
The offense of residential burglary--which the PSI indicated to be an underlying offense of defendant's adjudication of delinquency--is, when committed by an adult, a ...