Court of Appeals of Illinois, First District, Second Division
from the Circuit Court of Cook County, Illinois. No. 13 CR
14282, Honorable Rosemary Grant Higgins, Judge Presiding.
JUSTICE MASON delivered the judgment of the court, with
opinion. Justices Lavin and Pucinski concurred in the
judgment and opinion.
1 Defendant Joseph Brown was convicted of possession of
heroin with intent to deliver and sentenced as a Class X
offender pursuant to section 5-4.5-95(b) of the Unified Code
of Corrections (730 ILCS 5/5-4.5-95(b) (West 2012)). Brown
was 20 years old at the time of the narcotics transaction at
issue but turned 21 before his conviction. In People v.
Brown, 2015 IL App (1st) 140508 (Brown I), we
vacated Brown's sentence based upon our holding that the
Class X sentencing statute required a defendant to be 21
years of age on the date of commission of the offense, not
the date of conviction. Our supreme court reached the
opposite conclusion in People v. Smith, 2016 IL
119659, and directed us to vacate Brown I.
2 We now address additional issues raised by Brown that we
did not reach in Brown I because of our
interpretation of the Class X statute. Brown argues that
basing his eligibility for Class X sentencing on his age at
the time of his conviction rather than at the time of the
offense is a violation of (i) the prohibition against ex
post facto laws, (ii) constitutional due process
protections, and (iii) the constitutional right to equal
protection. Although we are not unsympathetic to Brown's
arguments, our supreme court has upheld similar sentencing
schemes against claims of arbitrariness and due process
violations. Accordingly, finding no constitutional infirmity
in the statute, we affirm Brown's sentence.
4 On July 3, 2013, 20-year-old Brown was arrested after an
officer observed him engaging in the sale of heroin. On July
29, 2013, Brown was charged with possession of a controlled
substance with intent to deliver. He turned 21 years old the
5 Following a bench trial on November 18, 2013, Brown was
found guilty of possessing more than 1 but less than 15 grams
of heroin with intent to deliver, a Class 1 felony with a
sentencing range of 4 to 15 years. Based on Brown's two
prior convictions for Class 2 felonies, the trial court found
that he was subject to mandatory Class X sentencing and
sentenced him to six years of imprisonment, the minimum term
for a Class X offender. 730 ILCS 5/5-4.5-25(a) (West 2012)
(sentencing range for a Class X felony is 6 to 30 years).
6 On appeal, Brown did not challenge his conviction, but he
argued that he was ineligible for Class X sentencing based
upon his age at the time of the offense. The Class X
recidivist provision applies "[w]hen a defendant, over
the age of 21 years, is convicted of a Class 1 or Class 2
felony" after having been convicted of two prior
felonies of Class 2 or higher. 730 ILCS 5/5-4.5-95(b) (West
2012). Brown argued that "over the age of 21 years"
referred to a defendant's age at the time the offense was
committed, not at the time of conviction; alternately, he
argued that measuring Class X eligibility by a
defendant's age at the time of conviction would be
7 In Brown I, 2015 IL App (1st) 140508, we agreed
with Brown's interpretation of the statute and therefore
did not reach the constitutional issues he raised. Following
People v. Smith, 2016 IL 119659, ¶ 31, our
supreme court directed us to vacate Brown I. We now
address the constitutional issues raised by Brown, which were
not raised in Smith.
9 Brown contends that applying the Class X recidivist
provision based on a defendant's age on the date of
conviction, rather than on the date the offense is committed,
is unconstitutional because (i) it violates the prohibition
against ex post facto laws, insofar as it punishes
him for an event (his 21st birthday) occurring after the
commission of the offense, (ii) it violates due process
rights since there is no rational basis to increase a
defendant's punishment based on his age at the time of
conviction, and (iii) it violates equal protection principles
since similarly-situated defendants may be subject to
different sentencing ranges based upon whether they turn 21
years old before being convicted.
10 Although Brown did not raise these issues in the trial
court, a party may challenge the constitutionality of a
statute at any time. People v. Carpenter, 368
Ill.App.3d 288, 291 (2006) (defendant had right to challenge
constitutionality of statute for the first time on appeal).
All statutes are presumed constitutional, and the party
challenging a statute bears the burden of rebutting that
presumption. People v. Greco, 204 Ill.2d 400, 406
(2003). If reasonably possible, we will construe a statute in
a way that upholds its constitutionality. Carpenter,
368 Ill.App.3d at 291.
11 Ex Post ...