Court of Appeals of Illinois, First District, Fourth Division
from the Circuit Court of Cook County. No. 16 JD 01958
Honorable Stuart Lubin, Judge Presiding.
JUSTICE McBRIDE delivered the judgment of the court, with
opinion. Presiding Justice Ellis and Justice Howse concurred
in the judgment and opinion.
1 Respondent Dave L., born July 20, 1999, was charged in a
petition for adjudication of wardship with two counts of
aggravated unlawful use of a weapon (AUUW) based on his
possession of a handgun without a firearm owner's
identification (FOID) card and his age. Based on
respondent's previous adjudications of delinquency for
armed robbery and AUUW, and that his current offense of AUUW
was a Class 2 felony, the State filed notice of its intent to
prosecute respondent as a violent juvenile offender (VJO)
pursuant to section 5-820 of the Juvenile Court Act of 1987
(the Act) (705 ILCS 405/5-820 (West 2014)). After a jury
trial in Cook County circuit court, respondent was
adjudicated delinquent and subsequently sentenced as a VJO
under the Act to a mandatory term of confinement until age
2 Respondent appeals, arguing that: (1) he was not eligible
for sentencing as a VJO under the Act because his AUUW charge
would not have been a Class 2 felony if he had been
prosecuted as an adult; and (2) the VJO statute violates the
eighth amendment of the United States Constitution and the
proportionate penalties clause of the Illinois Constitution
because it removes the trial court's discretion in
3 Respondent does not challenge the sufficiency of the
evidence, so we will discuss the facts only to the extent
necessary to understand the current appeal. The following
evidence was presented at respondent's December 2016 jury
4 Officer Jeffrey Salvetti testified that he was employed as
Chicago police officer. On August 30, 2016, he was working
with his partners, officers Erik Seng and Ernesto Amparan, in
an unmarked police vehicle. At approximately 11:40 p.m., he
was on patrol with his partners near North Pulaski Road and
West Grand Avenue. While on the 1500 block of North Pulaski
Road, the officer saw respondent approximately half a block
from the vehicle. Officer Salvetti identified respondent in
court. He stated that the vehicle continued north toward
5 Officer Salvetti observed respondent "making hand
gestures at passing vehicles." The officer stated that
he saw respondent look toward the officers' vehicle and
then "immediately reached down, grabbed the right side
of his waistband and turned his back" to the officer.
Respondent grabbed the front side of the waistband with his
right hand. As the officers' vehicle pulled up alongside
respondent, he turned and began running southbound on Pulaski
Road. Officer Salvetti stated that respondent's right
hand remained on his waistband. Officer Salvetti then exited
the vehicle and began to pursue respondent.
6 Respondent continued south on Pulaski Road, then made a
left eastbound onto West LeMoyne Street, and then turned into
a northbound alley east of Pulaski Road. The officer briefly
lost sight of respondent when he turned the corner onto
LeMoyne Street and when he turned into the alley. When the
officer turned into the alley, he was approximately one yard
length away from respondent. He observed respondent running
northbound and saw respondent's "right hand was now
extended away from his body, and [he] saw an object leaving
[respondent's] hand." Officer Salvetti testified
that the object was a handgun. Officer Salvetti continued to
pursue respondent and caught him within 10 to 15 seconds.
7 Officer Salvetti's partner, Officer Amparan, placed
respondent into custody. Officer Salvetti proceeded to the
area where he observed respondent throwing the handgun. He
climbed a fence into the yard where he saw the handgun thrown
and saw the handgun lying on a concrete slab in the yard. He
testified that it was a Herrington & Richardson LR 22
revolver. When he recovered the handgun, he cleared the eight
live rounds inside the gun. Officer Salvetti stated that he
recovered the handgun within 30 seconds after respondent
threw it and no one else was present at the time.
8 Officers Seng and Amparan also testified at the trial and
corroborated Officer Salvetti's testimony.
9 Bob Radmacher testified that he was employed at the
Illinois State Police firearm services bureau and was the
supervisor of the application processing unit. He stated that
he searched the FOID card database, and as of September 14,
2016, respondent had never applied for or been issued a FOID
10 The State then rested. Respondent moved for a directed
finding, which the trial court denied. Respondent rested
without presenting any additional evidence. Following
deliberations, the jury found respondent guilty of AUUW.
Respondent filed a motion for a new trial, which the court
denied. The case proceeded to respondent's dispositional
11 At the dispositional hearing, the trial court heard
evidence that respondent was 17 years old, had been detained
five times, and has had one juvenile arrest warrant.
Respondent has been committed to the Department of Juvenile
Justice (DJJ) twice. The prosecutor disclosed that under case
number 13 JD 1077, respondent was found delinquent of AUUW
and sentenced to probation. In case number 14 JD 653,
respondent was found delinquent of AUUW and sentenced to the
DJJ. Upon release, respondent was subsequently charged with
theft in case number 15 JD 1333, which the State dismissed.
Respondent was also charged with armed robbery and
intimidation of a witness in case number 15 JD 1387 and again
sentenced to the DJJ. Based on respondent's background,
the State asked the trial court to find respondent a VJO and
commit him to the DJJ until age 21.
12 The trial court then committed respondent to the DJJ until
his twenty-first birthday. The court observed:
"You know, I really don't really like statutes that
take away my discretion. But in this case with this
particular person standing in front of me, I can't really
argue with it. There's a finding of inability and best
interest. Commit to the Department of Juvenile Justice,
aggravated unlawful use of a weapon, having previously been
convicted of the [offenses] the State has tendered in the
13 This appeal followed.
14 First, respondent argues that he was not eligible for
sentencing as a VJO because his AUUW conviction would not
have been a Class 2 felony if he were tried as an adult since
his prior adjudications for AUUW would not have been
admissible. According to respondent, his AUUW charge would
have remained a Class 4 felony. Respondent admits that he did
not challenge the applicability of the VJO statute to his
conviction in the trial court, but asks this court to review
the issue under the plain error doctrine.
15 To preserve an issue for review, respondent must object
both at trial and in a written posttrial motion. People
v. Enoch, 122 Ill.2d 176, 186 (1988). Failure to do so
operates as a forfeiture as to that issue on appeal.
People v. Ward, 154 Ill.2d 272, 293 (1992). Supreme
Court Rule 615(a) provides that "[a]ny error, defect,
irregularity, or variance which does not affect substantial
rights shall be disregarded. Plain errors or defects
affecting substantial rights may be noticed although they
were not brought to the attention of the trial court."
Ill. S.Ct. R. 615(a). The plain error rule "allows a
reviewing court to consider unpreserved error when (1) a
clear or obvious error occurred and the evidence is so
closely balanced that the error alone threatened to tip the
scales of justice against the defendant, regardless of the
seriousness of the error, or (2) a clear or obvious error
occurred and that error is so serious that it affected the
fairness of the defendant's trial and challenged the
integrity of the judicial process, regardless of the
closeness of the evidence." People v.
Piatkowski, 225 Ill.2d 551, 565 (2007) (citing
People v. Herron, 215 Ill.2d 167, 186-87 (2005)).
However, the plain error rule "is not 'a general
saving clause preserving for ...