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In re Dave L.

Court of Appeals of Illinois, First District, Fourth Division

June 15, 2017

In re DAVE L., a minor,
Dave L., Respondent-Appellant. The People of the State of Illinois Petitioner-Appellee,

         Appeal 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.


          McBRIDE, JUSTICE

         ¶ 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 21.

         ¶ 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 sentencing.

         ¶ 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 trial.

         ¶ 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 respondent.

         ¶ 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 card.

         ¶ 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 hearing.

         ¶ 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 certified copies."

         ¶ 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 ...

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