People v. Fiveash

2015 IL 117669

IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS

(Docket No. 117669)

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. DAVID FIVEASH,
Appellant.

Opinion filed September 24, 2015.

JUSTICE KILBRIDE delivered the judgment of the court, with opinion.

Chief Justice Garman and Justices Freeman, Thomas, Karmeier, Burke, and
Theis concurred in the judgment and opinion.

OPINION

¶1 In this appeal, defendant argues the appellate court erred by interpreting section
5-120 of the Juvenile Court Act of 1987 (705 ILCS 405/5-120 (West 2004)) to
permit him to be tried in criminal court for acts he allegedly committed while 14 or
15 years old even though no charges were filed until he was 23 years old. After
carefully reviewing the Act and the other relevant statutory provisions and case
law, we affirm the appellate court’s judgment and remand the cause to the trial
court for further proceedings.
¶2 I. BACKGROUND

¶3 In May 2012, then 23-year-old defendant David Fiveash was charged in the
circuit court of Cook County with two counts each of aggravated criminal sexual
assault and criminal sexual assault. The acts involved the sexual penetration of the
vagina and mouth of his 6-year-old cousin, P.A., between January 1, 2003 and
January 1, 2004, when he was 14 or 15 years old. At that time, both he and P.A.
were living in the same residence.

¶4 The Mt. Prospect police department was notified of the possible sexual abuse of
P.A. on April 17, 2012, when a police department in Indiana provided information
obtained during an interview with another one of defendant’s cousins. After being
questioned by the Mt. Prospect police, defendant gave verbal and written
statements regarding the allegations involving P.A.

¶5 At the subsequent grand jury proceedings, testimony based on statements from
defendant, the victim, and other witnesses indicated that defendant had “admitted
to placing his penis inside the mouth and vagina of the victim.” On the condition
that he not have contact with anyone under the age of 18, bond was set for
defendant, who was certified to teach grades 6 through 12 but could substitute teach
for grades kindergarten through 12 and had been teaching part-time at two schools.

¶6 Defendant filed a motion to dismiss the indictment, arguing that section 5-120
of the Juvenile Court Act (705 ILCS 405/5-120 (West 2004) 1) gave the juvenile
court “exclusive jurisdiction” over offenses allegedly committed when he was 14,
barring his prosecution in criminal court. Defendant also maintained that he could
not be prosecuted in juvenile court because he was already over 21. In re Jaime P.,
223 Ill. 2d 526, 539 (2006). Consequently, he requested the dismissal of all charges
against him.

¶7 After a hearing in October 2012, the trial court granted defendant’s dismissal
motion, finding that he was not subject to prosecution in either juvenile court or
criminal court. The court determined that defendant could not be prosecuted in
either juvenile court, because he was then 23 years old, or in adult criminal court,
because a statutory transfer from juvenile court was no longer possible. Although
the trial court found the result was unjust, absurd, and clearly unfair to the victim, it

1
The offenses allegedly occurred in 2003, making the supplemental 2003 version of the statute
applicable. Because that version is identical to the one in the 2004 Illinois Compiled Statutes, we
cite simply to the 2004 statute.
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 concluded the applicable statutes did not allow for prosecution in either court. The
court subsequently denied the State’s motion to retain defendant’s bond pending
appeal.

¶8 On appeal, the appellate court construed the language in section 5-120, defining
the “exclusive jurisdiction” of the juvenile court. Substituting the statutory
definition for the section’s use of the word “minor,” the appellate court read section
5-120 as barring criminal proceedings only against defendants under the age of 21
for offenses they allegedly committed while under the age of 17, with certain
inapplicable exceptions. Because defendant was 23 when the indictment was
entered, the appellate court concluded section 5-120 did not apply. Consequently, it
held that the juvenile court did not possess exclusive jurisdiction over the matter.
The court also determined that the plain language of section 5-120 was consistent
with the rationale in In re Luis R., 239 Ill. 2d 295 (2010), and distinguished People
v. Rich, 2011 IL App (2d) 101237, on both its facts and law. Accordingly, the court
reversed the dismissal of defendant’s indictment and remanded the cause for trial in
adult criminal court. 2014 IL App (1st) 123262, ¶ 27. This court allowed
defendant’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Jan. 1, 2015).

¶9 II. ANALYSIS

¶ 10 Defendant argues that the appellate court erred by reinstating his indictment
because it held that a person over the age of 21 at the time of indictment could be
prosecuted in adult criminal court for offenses allegedly committed when he was a
minor at least 13 years of age. The narrow question before this court is whether
defendant may be subject to prosecution in criminal court for acts he allegedly
committed when he was 14 or 15 years of age. Because this issue involves the
proper construction of the Juvenile Court Act, and section 5-120 in particular, it
presents a question of law to be reviewed de novo. People v. Baskerville, 2012 IL
111056, ¶ 18.

¶ 11 The critical starting point for the resolution of any question of statutory
construction is the plain language of the statute, in this case section 5-120 of the
Act. People v. Almond, 2015 IL 113817, ¶ 34. The cardinal rule of statutory
construction, subordinating all other rules, is to determine and give effect to the
intent of the legislature. The most reliable indicator of that intent is the language

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 used in the statute. Whenever possible, that language should be given its plain and
ordinary meaning. People v. Hanna, 207 Ill. 2d 486, 497-98 (2003).

¶ 12 Here, the appellate court’s statutory analysis looked to the Act’s definitions of
the words “adult” and “minor” and inserted those definitions into section 5-120.
2014 IL App (1st) 123262, ¶ 27. Defendant argues, however, that the court erred by
applying the statutory definition of “minor” because the legislature did not intend
to invoke that meaning when it amended the prior version of the statute. Noting that
the predecessor to section 5-120 used the words “boys” and “girls,” he claims the
legislature substituted “minor” in response to our decision in People v. Ellis, 57 Ill.
2d 127 (1974). In Ellis, 57 Ill. 2d at 133, we ruled that the legislature could not
constitutionally establish different threshold ages for the criminal prosecution of
boys and girls. According to defendant, the legislature substituted “minor” for
“boys” and “girls” in section 5-120 because it was simply “a word with a neuter
gender to describe all persons under the age of 17.”

¶ 13 We are not persuaded by defendant’s explanation of the legislature’s word
choice. When a term is defined within a statute, that term must be construed by
applying the statutory definition provided by the legislature. People v. Chenoweth,
2015 IL 116898, ¶ 21. Moreover, if the legislature merely sought a gender neutral
substitute for “boys” and “girls,” it could have readily chosen another term that was
not already defined in the Act, such as “juvenile,” “individual” or “anyone.”
Instead, the legislature specifically chose “minor,” a word expressly defined in the
Act (705 ILCS 405/5-105 (West 2004)). Accordingly, in the absence of clear
evidence exhibiting a contrary legislative intent, section 5-120 must be read to
incorporate that meaning of “minor.” Chenoweth, 2015 IL 116898, ¶ 21.

¶ 14 Returning to the specific language used in the Act, we note that the Act’s
purpose and policy limit its scope to “minors” who are not otherwise excluded from
its coverage. 705 ILCS 405/1-2 (West 2004). In turn, the Act defines a “[m]inor” as
“a person under the age of 21 years subject to this Act” and, conversely, an
“[a]dult” as “a person 21 years of age or older.” 705 ILCS 405/1-3(2), (10) (West
2004). Pursuant to these definitions, both defendant and the State acknowledge,
and we agree, that the juvenile court has no authority over defendant because he
was 23 years old when the instant proceedings were instituted and was, therefore,
no longer subject to the Act’s provisions.

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¶ 15 Because the focus of the parties’ arguments is largely on the “exclusive
jurisdiction” provision in section 5-120, we next address the specific language of
that section. Replacing the word “minor” with its statutory definition, as we must,
section 5-120 properly reads:

Ҥ 5-120. Exclusive jurisdiction. Proceedings may be instituted under the
provisions of this Article concerning any [person under the age of 2l years
subject to this Act] who prior to the [person under the age of 2l years subject to
this Act[’s]] 17th birthday has violated or attempted to violate, regardless of
where the act occurred, any federal or State law or municipal or county
ordinance. Except as provided in Sections 5-125, 5-130, 5-805, and 5-810 of
this Article,[2] no [person under the age of 2l years subject to this Act] who was
under 17 years of age at the time of the alleged offense may be prosecuted under
the criminal laws of this State.” 705 ILCS 405/5-120 (West 2004).

For his part, defendant claims the last sentence of section 5-120 bars his
prosecution outside juvenile court because, in the absence of an applicable
exception, it does not permit any minor under the age of 17 at the time of the
offense to be prosecuted in criminal court. We disagree.

¶ 16 Defendant’s interpretation ignores the limiting phrase “subject to this Act” in
the statutory definition of “minor” the legislature used to describe the group of
persons under 21 constituting “minors” for purposes of the Act. Paraphrasing the
key sentence in section 5-120, no person under 21 who is subject to the Act, and
who was younger than 17 when the alleged offense was committed, may be
prosecuted in adult criminal court. Defendant fails to meet these criteria. He is
neither under 21 nor subject to the Act, as expressly conceded in defendant’s brief.
Consequently, the last sentence of section 5-120 does not bar defendant’s
prosecution in criminal court for offenses he allegedly committed when he was 14
or 15 years old.

¶ 17 Defendant also relies heavily on his view of the legislature’s “comprehensive”
three-tier scheme regulating the prosecution of persons under 17, including the
2
None of these statutory exceptions are applicable here. Section 5-125 addresses concurrent
jurisdiction over traffic, boating, fish and game, and municipal or county ordinance violations.
Section 5-130 excludes from juvenile court prosecution certain serious offenses committed by
minors who are at least 15 years old. Sections 5-805 and 5-810 set out the requirements for
mandatory, presumptive, and discretionary transfers from juvenile court to criminal court, as well as
extended jurisdiction juvenile prosecutions. These transfer procedures do not apply here because the
requisite petitions were not filed while defendant was subject to the juvenile court’s authority.
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 availability of mandatory, presumptive, and discretionary transfers from juvenile
court to criminal court. He faults the appellate court for failing to consider that
scheme in its analysis. In defendant’s view: (1) persons under 13 at the time of an
offense may never be convicted as adults; (2) those between 13 and 17 are
generally prosecuted in juvenile court and are subject to the juvenile justice system
only until they turn 21; and (3) those 17 or older are handled exclusively in criminal
court.

¶ 18 Defendant contends that the State’s interpretation of section 5-120 improperly
creates a new judicial transfer mechanism between juvenile and criminal court.
Admitting that a broad range of transfer options from juvenile to criminal court
already exists, he maintains that the legislature provided only for the “aging out of”
defendants from juvenile court, not their “aging into” adult criminal court, leaving
him beyond the reach of State prosecution.

¶ 19 While the legislature’s scheme may indeed be “comprehensive,” defendant’s
argument fails to recognize that if he had been charged while a minor, he could still
have been properly tried as an adult through the Act’s discretionary transfer
mechanism because he was at least 13 years of age at the time of the alleged
offenses (705 ILCS 405/5-805(3) (West 2004)). Thus, the application of the
legislative scheme in the Act could well have subjected him, while still a juvenile,
to trial in adult criminal court, the very fate that he asks this court to reject outright
now that he is an adult.

¶ 20 Defendant’s view effectively allows him to escape prosecution for four felony
sexual offenses 3 allegedly committed against a six-year-old family member. As the
trial court stated, his position creates an absurd result that contradicts the
legislature’s express intent to hold those who commit criminal offenses directly
accountable for their actions as expressly stated in the Act and the Criminal Code of
1961 (Code) (720 ILCS 5/1-1 (West 2004)).

¶ 21 Adjudication in juvenile court is not a matter of constitutional right. The
legislature created the juvenile court and defined its authority. No other right to
adjudication in juvenile court exists. In re M.I., 2013 IL 113776, ¶ 46. As the
legislature stated, the Act was enacted, in part, “[t]o hold each juvenile offender

3
The two aggravated criminal sexual assault counts are Class X felonies (720 ILCS
5/12-14(b)(i), (d)(1) (West 2004)), and the two criminal sexual assault counts are Class 1 felonies
(720 ILCS 5/12-13(a)(3), (b)(1) (West 2004)).
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 directly accountable for his or her acts” (705 ILCS 405/5-101(1)(b) (West 2004)), a
fundamental purpose that was emphasized even more strongly with the
legislature’s amendment of the Act in Public Act 90-590, effective January 1, 1999.
People ex rel. Devine v. Stralka, 226 Ill. 2d 445, 457-58 (2007). In a similar
fashion, the Code subjects any “person” to criminal prosecution by the State “for an
offense which he commits, while either within or outside the State, by his own
conduct or that of another for which he is legally accountable,” with a “person”
being broadly defined as “an individual, public or private corporation, government,
partnership, or unincorporated association.” 720 ILCS 5/1-5(a), 2-15 (West 2004).
Thus, the legislature has effectively enacted a seamless set of provisions committed
to the uniform enforcement of the criminal laws of this state.

¶ 22 Contrary to the legislature’s express intent to hold all persons accountable for
their offenses, however, defendant’s interpretation of section 5-120 creates a strong
and perverse incentive for juvenile offenders to take affirmative action to conceal
their offenses or to evade apprehension until they turn 21 and would no longer be
subject to prosecution. While defendant asserts that nothing in the record indicates
he attempted to evade prosecution, that argument is beside the point. We reject
defendant’s position not because he personally took advantage of the incentive to
evade prosecution or hide his offenses created by his construction of the statute but,
rather, because the effect of that interpretation runs contrary to the clear intent of
the legislature as stated in the plain statutory language. People ex rel. Devine v.
Sharkey, 221 Ill. 2d 613, 617 (2006) (stating “[w]here the plain language of the
statute clearly reveals the legislature’s intent, that intent must prevail, and no resort
to other interpretive aids is necessary”).

¶ 23 To counter the absurdity of interpreting section 5-120 to bar defendant’s
prosecution forever, defendant maintains that “[a]ny time-based limit on filing
criminal charges is necessarily arbitrary in nature.” Although the prosecution of
virtually every crime is admittedly cut off at some point in time by the applicable
statute of limitations, in the case of sex offenses committed against children, the
legislature has expressly and affirmatively chosen to expand, not reduce, the time
frame for charging persons such as defendant. Under section 3-6(j) of the Code:

“[t]he period within which a prosecution must be commenced under the
provisions of Section 3-5 or other applicable statute is extended under the
following conditions:

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 ***

(j) When the victim is under 18 years of age at the time of the offense, a
prosecution for criminal sexual assault, aggravated criminal sexual assault,
predatory criminal sexual assault of a child, or aggravated criminal sexual
abuse or a prosecution for failure of a person who is required to report an
alleged or suspected commission of any of these offenses ***, may be
commenced within 10 years after the child victim attains 18 years of age.”
(Emphasis added.) 720 ILCS 5/3-6(j) (West 2002).

This provision greatly increases the time available to the State to discover and
initiate criminal proceedings for sexual offenses committed against children. 4

¶ 24 By enacting section 3-6(j), the legislature conclusively established its clear and
unambiguous intent to hold the enumerated class of offenders accountable for an
extended period by providing for the criminal prosecution of their offenses well
beyond the normal time frame. Inherent in the legislature’s choice must be the
implicit recognition that both youthful victims and their assailants age at the same
rate. Thus, it was readily foreseeable that juveniles who commit the offenses listed
in section 3-6(j) of the Code could logically be adults before the extended statute of
limitations had run on their crimes. Indeed, even if the victim were 17 at the time of
the attack, only a very rare defendant would still be under the age of 21, and
therefore subject to the Act’s protections, 10 years after the victim turned 18 under
the extended limitations period in section 3-6 of the Code.

¶ 25 Cutting off the State’s ability to initiate a prosecution far sooner than was
plainly intended under that provision would eviscerate the clear intent of the
legislature, creating an absurd result. This we will not do given the plain and
unambiguous intent of the language used by the legislature in enacting section
5-120 of the Act and section 3-6 of the Code. In re Shelby R., 2013 IL 114994,
¶¶ 32, 48.

¶ 26 Nonetheless, defendant argues that the enactment of section 3-6’s extended
limitations period in the Code a year after the Act’s section 5-120 was in effect,
without an accompanying amendment to section 5-120 authorizing the juvenile
court to adjudicate defendants after they turn 21, somehow undermines our

4
While not applicable in the instant case, the legislature subsequently increased the time to
initiate prosecutions for the enumerated offenses against child victims from 10 years to 20 years
after the child victim turns 18.
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 conclusion. In making this argument, defendant appears to be attempting to point
out a legislative inconsistency, perhaps implying that the extended limitations
provision was not intended to apply to youthful defendants who committed the
specified offenses while subject to the Act. We find nothing in the statutory
language, however, to support that claim. Indeed, it is defendant’s interpretation
that is inconsistent with the clear intent of the legislature. Moreover, our
construction of the Act is preferable because it establishes a fixed and consistent
charging time and application of sections 3-6(j) and 5-120, in contrast to the one
offered by defendant that would vary depending on the age of the offender.

¶ 27 In the instant case, the victim was 6 years old at the time of the alleged offenses.
Pursuant to section 3-6 of the Code, the statute of limitations for charging
defendant with her repeated criminal sexual assault and aggravated criminal sexual
assault extended until December 10, 2024, when she turned 28. 5 Defendant was
charged in 2012, well within the applicable limitations period. We conclude that by
retaining the limited authority of the juvenile court under the Act while greatly
expanding the State’s available time frame for initiating the prosecution of the
specified sex offenses, the legislature paved the way for the criminal prosecution of
youthful offenders who subsequently “age out of” the juvenile court system.

¶ 28 Nonetheless, defendant also asserts that this court’s earlier interpretation of
identical language in section 5-120’s statutory predecessors (Ill. Rev. Stat. 1967,
ch. 37, ¶¶ 702-2, 702-7) supports his view, citing several cases that used the
minor’s age at the time of the offense to determine the viability of an adult
prosecution. People v. Clark, 119 Ill. 2d 1, 13-14 (1987); People v. J.S., 103 Ill. 2d
395, 401-04 (1984); In re Griffin, 92 Ill. 2d 48, 50-53 (1982); In re Greene, 76 Ill.
2d 204, 212-13 (1979). He adds that the legislature’s failure to change the statutory
language in response to those decisions suggests its acquiescence to their holdings.

¶ 29 As defendant admits in his brief, however, the cited decisions do not involve the
precise issue presented here: the propriety of prosecuting a defendant who was over
the age of 21 when charged in criminal court for offenses allegedly committed
while he was a minor. Our review also shows that the factual and legal context of
those cases further distinguish them from the instant one.

5
P.A. was born on December 10, 1996, making her 18 on that date in the year 2014. Section 3-6
then allows an additional 10 years for the State to initiate its prosecution.
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¶ 30 In Clark, 119 Ill. 2d at 14-16, this court concluded that it was an abuse of the
trial court’s discretion in ruling on a discretionary transfer petition to fail to
consider the difference in the 14-year-old defendant’s potential sentences in
juvenile and criminal court if convicted of two murders. In juvenile court, the minor
could have been incarcerated until the age of 21, but in criminal court he would
have received a mandatory sentence of natural life in prison. Based on the extreme
sentencing disparity, we held the defendant’s transfer hearing was inadequate.
Here, however, we are not reviewing the propriety of a transfer order to criminal
court because no transfer from juvenile court was available when the instant
defendant, then 23 years old, was charged. We are considering whether prosecution
in criminal court is even possible for defendant, not whether the trial court properly
considered all relevant factors in using its discretion to order transfer pursuant to an
admittedly applicable provision.

¶ 31 Next, in J.S., 103 Ill. 2d at 401-05, we upheld the constitutionality of the
mandatory transfer of certain juvenile offenders to criminal court for trial.
Although that precise issue is clearly inapposite, our express recognition in J.S. that
no constitutional right to juvenile court proceedings exists is highly relevant here.
As we noted, the legislature possesses “the authority to define the limits of juvenile
court jurisdiction” and is entitled to “redefin[e] the applicability of a statute which
it created under its legislative power” by altering the age limits for juvenile and
adult court proceedings. J.S., 103 Ill. 2d at 402, 406. Contrary to defendant’s
claims, those statements of law reinforce, not undermine, our construction of
section 5-120 in this case.

¶ 32 Defendant also cites In re Griffin, 92 Ill. 2d at 50-52, in support. In that case, we
were called on to determine whether a defendant who was 12 when he was
adjudicated delinquent but 13 when he was sentenced could be committed to the
Juvenile Department of Corrections (DOC) under a statute allowing juveniles who
were at least 13 to be sent to the DOC. Similar to our conclusion in this case, we
relied on the plain language of the statute to hold that the relevant point in time was
the entry of the commitment order, upholding the transfer to the DOC. While we
indicated in dicta that “[t]he sections providing that a minor may be transferred
from juvenile court for prosecution as an adult contain express language making
transfer dependent upon the minor’s age at the time he committed the offense”
(Griffin, 92 Ill. 2d at 52), that statement is insufficient to resolve the question here.
Because the Act applies only to minors, our statement is applicable only to those

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 charged while minors. Here, defendant was undoubtedly an adult when he was
initially prosecuted and, thus, not subject to the protections of the Act.

¶ 33 Finally, in Greene, 76 Ill. 2d at 212, this court held that age is not an element of
proof needed to support a finding of delinquency but rather “merely the factor
which authorizes the application of the juvenile system.” Recognizing that the
juvenile court is simply a division of the circuit court, we noted that age is not a
jurisdictional requirement, unlike subject matter jurisdiction. Greene, 76 Ill. 2d at
213-14. The age limit on juvenile court adjudication is set solely by the statutory
language enacted by the legislature. Therefore, if, as in this case, a defendant’s age
places him outside the scope of the Act, the court has no authority to proceed under
the Act. That holding is not inconsistent with our conclusion in this case.

¶ 34 Defendant next complains that our construction of section 5-120 violates the
rule of lenity by failing to construe a criminal statute in favor of the accused.
Critically, the rule of lenity applies only to statutes containing “grievous
ambiguities,” leaving us unable to do more than merely “guess” the legislature’s
intent. People v. Gutman, 2011 IL 110338, ¶¶ 43-44. When a statute is silent on a
particular point, we focus on the legislature’s intent, and we will not interpret
statutory silence in a way that defeats the purpose of that provision. People v.
Garcia, 241 Ill. 2d 416, 422-23 (2011). If the statutory language is unambiguous,
we will not resort to additional statutory construction tools. In re Commitment of
Fields, 2014 IL 115542, ¶ 32. Because the key sentence in section 5-120 is
sufficiently clear and unambiguous when construed in light of the definition of
“minor” enacted by the legislature in the Act, we need not merely “guess” at the
intent of the legislature. The rule of lenity is inapplicable.

¶ 35 Arguing that section 5-120 could in fact be deemed ambiguous, defendant cites
to the conflicting results among this case, People v. Richardson (2014 IL App (1st)
122501, ¶¶ 13-16, pet. for leave to appeal pending, No. 118028 (filed July 28,
2014)), and People v. Rich (2011 IL App (2d) 101237, ¶¶ 8-17). The latter
decisions held that no one over 21 could be prosecuted in criminal court for acts
allegedly committed before the age of 17 in the absence of a timely juvenile court
transfer petition or an express statutory exception. Both Richardson and Rich rely
on a dissent filed in In re Luis R., 239 Ill. 2d 295, 307-09 (2010) (Freeman, J.,
dissenting, joined by Burke, J.).

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¶ 36 In Luis R., a majority of this court reversed the dismissal of the State’s
delinquency petition because the trial court improperly relied on a lack of
jurisdiction. Concluding that both subject matter and personal jurisdiction existed,
the majority reinstated the petition and remanded the cause for further proceedings.
The dissenting justices disagreed because they would have addressed the validity of
the State’s petition rather than relying on the trial court’s jurisdictional error. After
characterizing the Act as both providing for the protection and special treatment of
juveniles and precluding the imposition of criminal penalties on them, the dissent
found “[t]he Act by its own language does not apply to” the defendant Luis R.
because he was over 21 when the proceedings were instituted. Therefore, the
dissent would have sustained the dismissal of the State’s delinquency petition on
the alternate ground that the trial court lacked adjudicatory authority over the
defendant under the Act. Luis R., 239 Ill. 2d at 308-09 (Freeman, J., dissenting,
joined by Burke, J.).

¶ 37 In Rich, the appellate court reviewed the dismissal of an indictment on two
counts of aggravated criminal sexual assault filed in adult criminal court against the
21-year-old defendant for acts he allegedly performed between the ages of 12 and
14. Initially, the court affirmed the dismissal order because the indictment was
legally defective for criminally charging the defendant with acts he committed
before the age of 13 (720 ILCS 5/6-1 (West 2008)). Rich, 2011 IL App (2d)
101237, ¶ 7. The court went on, however, to affirm the dismissal for an additional
reason as well, considering the substantive question of whether an adult defendant
could be charged in criminal court for offenses allegedly committed before the age
of 15. Rich, 2011 IL App (2d) 101237, ¶ 8.

¶ 38 In that discussion, the court did not rely extensively on the Luis R. dissent,
citing it solely for the inoffensive proposition that defendants are no longer subject
to the Act or entitled to its special protections and treatment after they reach the age
of 21. Rich, 2011 IL App (2d) 101237, ¶¶ 9, 10. The appellate court then examined
the four exceptions to section 5-120’s bar on the prosecution of minors under the
age of 17, concluding none were applicable. Rich, 2011 IL App (2d) 101237,
¶¶ 10-12. Ultimately, the court appears to have rested its holding that the defendant
could not be prosecuted in criminal court on the ground that the State failed to
pursue its initial criminal petition against the defendant, filed when he was 20 years
old and still subject to the Act, and instead relied on a superseding indictment,
identical to the first, filed when he was 21 and no longer subject to the Act. Rich,
2011 IL App (2d) 101237, ¶¶ 4, 15-16. Thus, despite the appellate court’s brief
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 allusion to the dissent in Luis R., the facts and determinative legal reasoning in Rich
are readily distinguishable from the instant case.

¶ 39 In contrast, Richardson extensively discussed this court’s decision in Luis R. as
well as the subsequent appellate decision, In re Luis R., 2013 IL App (2d) 120393.
Reading Luis R. and Rich together, the court concluded they “essentially create[d] a
class of over-21 defendants who can no longer be prosecuted either in juvenile or
adult court for certain crimes they allegedly committed as minors.” Richardson,
2014 IL App (1st) 122501, ¶ 9. The court found the dissent in Luis R. “not only
helpful, but highly persuasive” “regarding the merits of [the] closely related issue”
presented in Richardson. Richardson, 2014 IL App (1st) 122501, ¶ 13. In addition,
the court rejected the statutory analysis conducted in the instant case by a different
division of the First District Appellate Court. Richardson, 2014 IL App (1st)
122501, ¶ 15.

¶ 40 Instead, the Richardson court applied the rule of lenity to read the last sentence
of section 5-120 as barring the criminal prosecution of the defendant, who was 29
years old, because he was no longer subject to the Act. Because that conclusion is
diametrically opposed to the one reached earlier in this decision (supra ¶ 34), we
reject that rationale.

¶ 41 Moreover, the reasoning in Richardson appears to have been influenced by the
appellate court’s concerns that the State could intentionally delay prosecutions “to
sidestep the beneficial and age-sensitive remedies available to juveniles and elevate
the scope of possible punishments to the more severe levels applicable in the adult
system.” Richardson, 2014 IL App (1st) 122501, ¶ 15. In Rich, the court mentioned
similar concerns, stating that “radically different sentences for the same crime,
committed at the same age, might result merely from the passage of time before
being charged.” Rich, 2011 IL App (2d) 101237, ¶ 9. Here, defendant restates the
same policy considerations.

¶ 42 Specifically, defendant argues that our construction of section 5-120 creates an
incentive for the State to delay prosecution until a juvenile defendant turns 21 and
can be tried in adult criminal court, where he no longer has the benefit of the Act’s
protections and preferential treatment. He adds that a criminal trial under those
circumstances would inevitably raise difficult new procedural questions, such as
whether a defendant has the right to discover why charges were not filed against
him until after he turned 21. Under the facts of this case, however, any discussion of

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 those matters would be merely advisory because the police and the State were
undisputedly not aware of any potential charges against defendant until they were
notified of his possible sexual abuse of P.A. by Indiana police, who unexpectedly
uncovered the information while interviewing another of his cousins. Charges were
filed against defendant within days after the Mt. Prospect police first became aware
of the allegations. At that time, defendant was already over 21 and no longer
subject to the Act. Because the courts of this state may not properly issue advisory
opinions to provide guidance to future litigants (Luis R., 239 Ill. 2d at 299 n.1), we
decline to speculate on the possibility that the State could intentionally delay filing
initial charges until a defendant turned 21 to ensure a prosecution in criminal court.

¶ 43 Finally, defendant argues that his due process rights were violated because he
could face a much longer prison term in adult criminal court than could have been
imposed in juvenile court for the same offenses. Defendant is accused of two
counts of aggravated criminal sexual assault, a nonprobationable Class X felony
offense in criminal court, and two counts of criminal sexual assault, a Class 1
felony. He asserts that in criminal court he could be sentenced to prison terms of 6
to 30 years on each of the Class X felony counts, with an additional 4 to 15 years
possible on each of the Class 1 felony counts, with all the sentences mandated to
run consecutively. 6 In contrast, the maximum sentence that could have been
imposed in juvenile court was only six years because he would no longer be subject
to juvenile court sanctions when he turned 21.

¶ 44 The State counters that in People v. Patterson, 2014 IL 115102, this court
rejected a similar due process claim addressing Illinois’s automatic transfer
scheme. That statute provided for the mandatory transfer to criminal court of
certain juveniles over the age of 14 charged with the specified offenses. The
defendant in that case argued the statute violated due process because the transfers
subjected teens to significantly harsher adult punishments without any
consideration of their inherent differences. Patterson, 2014 IL 115102, ¶ 89. Here,
defendant asserts that this case involves a different statutory provision, partially
distinguishing the legal issues in Patterson.

6
The State contends defendant faces a maximum sentence of 60 years, rather than the 90 years
defendant claims, because the two Class 1 felonies and two Class X felonies are subject to the rule of
merger when based on the same acts. For purposes of our analysis, however, the precise number of
years defendant faces in prison, if convicted, is immaterial. Suffice it to say that defendant is subject
to a total prison sentence in criminal court that is significantly longer than the maximum sentence he
could have received in juvenile court.

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¶ 45 While section 5-120 was not at issue in Patterson, the same concern pervades
the arguments raised by both the defendants in Patterson and the instant case:
juvenile offenders tried in adult criminal court could potentially be subjected to
harsher adult punishments without proper consideration of their unique physical
and mental characteristics. As we discussed in Patterson, the need to consider
juveniles’ unique characteristics was recognized in the eighth amendment context
by this court in People v. Miller, 202 Ill. 2d 328, 341-42 (2002), and by the United
States Supreme Court in Roper v. Simmons, 543 U.S. 551 (2005), Graham v.
Florida, 560 U.S. 48 (2010), and Miller v. Alabama, 567 U.S. ___, 132 S. Ct. 2455
(2012). Patterson, 2014 IL 115102, ¶¶ 97-98. Neither that Court nor this one,
however, has ever held that the failure to address the inherent differences between
teen and adult offenders creates a due process violation when a teen is potentially
subjected to a prison sentence involving a term of years rather than the death
penalty or natural life in prison. Patterson, 2014 IL 115102, ¶¶ 97-98. It is also
important not to forget that even if defendant had been charged at the time of the
alleged offenses, he undoubtedly could have been tried as an adult in criminal court
under the Act’s discretionary transfer provision (705 ILCS 405/5-805(3) (West
2004)). Because defendant offers no additional persuasive basis to justify the
reconsideration of our prior case law, we reject his due process claim.

¶ 46 As in Patterson, 2014 IL 115102, ¶ 111, however, we recognize the inherent
tension and potential for perceived unfairness between juvenile dispositions and the
comparatively harsh punishments defendants may face in criminal court for
offenses allegedly committed as juveniles. Accordingly, the legislature is
encouraged to reevaluate section 5-120 in light of this court’s decision.

¶ 47 III. CONCLUSION

¶ 48 For the reasons stated, we affirm the appellate court’s judgment reversing the
dismissal of the indictment against defendant. Section 5-120 of the Act does not bar
the prosecution of defendant in criminal court for offenses he allegedly committed
when he was 14 or 15 but was not charged with until he was over 21 and no longer
subject to the Act. Accordingly, we affirm the judgment of the appellate court and
remand the cause to the trial court for further proceedings.

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¶ 49 Appellate court judgment affirmed.

¶ 50 Cause remanded.

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