People v. Jones

2016 IL 119391

IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS

(Docket No. 119391)

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
DERRICK JONES, Appellant.

Opinion filed October 20, 2016.

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

Justices Thomas, Karmeier, and Theis concurred in the judgment and opinion.

Justice Burke dissented, with opinion, joined by Chief Justice Garman and
Justice Kilbride.

OPINION

¶1 Defendant Derrick Jones was convicted of aggravated robbery in the circuit
court of Will County and sentenced to an extended-term sentence of 24 years’
imprisonment based on a prior juvenile adjudication of delinquency referenced in
his presentence investigative report. Defendant appealed his sentence, contending
 that the use of his prior juvenile adjudication to enhance his sentence violated the
rulings in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Shepard v. United
States, 544 U.S. 13 (2005). The appellate court affirmed. 2015 IL App (3d) 130053.
We allowed defendant’s petition for leave to appeal pursuant to Illinois Supreme
Court Rules 315 and 612 (Ill. S. Ct. R. 315 (eff. July 1, 2013); R. 612 (eff. Feb. 6,
2013)). For the following reasons, we affirm the judgment of the appellate court.

¶2 I. BACKGROUND

¶3 Defendant was charged by indictment with aggravated robbery, a Class 1
felony (720 ILCS 5/18-5 (West 2010) (repealed by Pub. Act 97-1108 (eff. Jan. 1,
2013))), as a result of an incident that occurred on January 6, 2012. Before
defendant’s jury trial began, the court asked the parties whether the sentencing
range for the aggravated battery charge would be 4 to 30 years. The State agreed, as
did defendant’s counsel. Defendant’s counsel stated that the State had tendered to
her a “certified court docket from the ’04 JD case” indicating that defendant, as a
juvenile, had been adjudicated delinquent on multiple counts of residential burglary
and that adjudication would make defendant eligible for an extended-term sentence
in the present case, with a range of 4 to 30 years.1 However, defendant’s counsel
also indicated that she spoke with defendant and defendant denied having an
adjudication for residential burglary. The court admonished defendant that he faced
a sentencing range of 4 to 30 years, and the case proceeded to trial.

¶4 At trial, the evidence presented was limited to the aggravated robbery charge.
No evidence regarding defendant’s prior juvenile adjudication was introduced. The
jury found defendant guilty of aggravated robbery, and the case proceeded to
sentencing.

¶5 A presentencing investigative report (PSI) indicated that defendant, as a
juvenile, had been adjudicated delinquent in 2005 of multiple offenses in case
number 04 JD 00276, including three counts of residential burglary. The PSI
provided:

1
The docket sheet for the 2004 juvenile proceeding was not made a part of the record.

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 “On April 28, 2005, with the then minor, Derrick Jones, 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.
Derrick Jones 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 ***.”

After considering various factors in aggravation and mitigation, the court sentenced
defendant to an extended-term sentence of 24 years’ imprisonment. Defendant’s
motion to reconsider his sentence was subsequently denied.

¶6 On direct review, defendant did not challenge his conviction for aggravated
robbery but did challenge his extended-term sentence. Defendant first argued that
his extended-term sentence violated his sixth amendment right to a jury trial
pursuant to the Supreme Court’s ruling in Apprendi, because the fact of his juvenile
adjudication was neither proven to a jury beyond a reasonable doubt nor alleged in
the indictment. The appellate court rejected his contention, finding that a prior
adjudication of delinquency was sufficiently analogous to a prior criminal
conviction to fall under the prior-conviction exception in Apprendi. 2015 IL App
(3d) 130053, ¶ 38. The court reasoned that because due process does not require the
right to a jury trial in juvenile proceedings, the absence of a right to a jury trial does
not undermine the reliability of a juvenile proceeding. Id. ¶ 37. It further stated that
a juvenile adjudication “reached only where all constitutionally required
procedural safeguards are in place, is a no less reliable basis for the enhancement of
a sentence than is a standard adult criminal conviction.” Id. ¶ 36. Defendant also
argued in the alternative that the circuit court improperly relied upon the PSI in
determining the fact of his prior juvenile adjudication in contravention of the
Supreme Court’s ruling in Shepard, contending that a PSI is “particularly
unreliable” in determining the fact of a prior adjudication of delinquency, as
opposed to a prior criminal conviction. The appellate court also rejected this
contention, finding that information in a PSI may be used as the basis for sentence
enhancement without running afoul of Shepard and that the PSI unequivocally
indicated defendant had been adjudicated delinquent pursuant to a petition alleging
three counts of residential burglary, a Class 1 felony. Id. ¶ 47. The appellate court
affirmed the judgment of the circuit court of Will County. Id. ¶ 50.

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¶7 We granted defendant’s petition for leave to appeal (Ill. S. Ct. R. 315 (eff. July
1, 2013); R. 612 (eff. Feb. 6, 2013)) and affirm the judgment of the appellate court.

¶8 II. ANALYSIS

¶9 On appeal, defendant contends that a prior juvenile delinquency adjudication is
not the equivalent of a prior conviction for purposes of extended-term sentencing
under Apprendi and that such a fact must be alleged in the indictment and proven
beyond a reasonable doubt. Alternatively, defendant contends that even if a prior
adjudication of delinquency can qualify as a prior conviction for purposes of
extended-term sentencing, the information contained in his PSI failed to
conclusively establish that he had been adjudicated delinquent of residential
burglary. Defendant acknowledges that he failed to preserve these issues for review
but argues that an Apprendi violation may be reviewed as plain error where, as
here, the violation was prejudicial to him.

¶ 10 It is well settled that the plain-error doctrine 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 or (2) a clear or obvious error occurred and the error is
so serious that it affected the fairness of the defendant’s trial and the integrity of the
judicial process, regardless of the closeness of the evidence. In re Jonathon C.B.,
2011 IL 107750, ¶ 70; People v. Herron, 215 Ill. 2d 167, 178-79 (2005). Our
decision in Herron established two categories of plain error: prejudicial errors,
which may have affected the outcome in a closely balanced case, and
presumptively prejudicial errors, which must be remedied although they may not
have affected the outcome. People v. Nitz, 219 Ill. 2d 400, 415 (2006). In both
instances, the burden of persuasion remains with the defendant. Herron, 215 Ill. 2d
at 187. We have held that potential Apprendi violations fall under the first category
of prejudicial errors and have required defendants to prove that they were
prejudiced by the error. Nitz, 219 Ill. 2d at 415. In addressing a plain-error
argument, we first consider whether error occurred. In re Jonathon C.B., 2011 IL
107750, ¶ 70. Review of this issue presents a question of law, which we review
de novo. People v. Hopkins, 201 Ill. 2d 26, 36 (2002).

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¶ 11 A. Apprendi’s Prior-Conviction Exception

¶ 12 We first consider defendant’s argument based on Apprendi. As noted above, the
offense of aggravated robbery is a Class 1 felony. 720 ILCS 5/18-5(b) (West 2010)
(repealed by Pub. Act 97-1108 (eff. Jan. 1, 2013)). The standard sentencing range
for a Class 1 felony is 4 to 15 years. 730 ILCS 5/5-4.5-30(a) (West 2010). The
extended-term sentencing range for a Class 1 felony is 15 to 30 years. Id. Section
5-5-3.2 of the Unified Code of Corrections (Code of Corrections) sets forth various
factors that the court may consider as a reason to impose an extended-term
sentence. 730 ILCS 5/5-5-3.2(b) (West 2010). Relevant here is the factor in
subsection (b)(7) of section 5-5-3.2, which governs “[w]hen 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 is a Class 1 felony. 720 ILCS 5/19-3(b)
(West 2010). Based on the information in the PSI that defendant had been
adjudicated delinquent of the offense of residential burglary, section 5-5-3.2(b)(7)
of the Code of Corrections authorized the circuit court to impose an extended-term
sentence. Therefore, we consider whether the manner in which the court imposed
the sentence violated the rule set forth in Apprendi.

¶ 13 In Apprendi, the Supreme Court held that “[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a reasonable
doubt.” Apprendi, 530 U.S. at 490. The Court found unconstitutional a New Jersey
hate-crime statute that permitted an increase in the defendant’s maximum prison
sentence based on the trial judge’s finding by a preponderance of the evidence that
the defendant had acted with purpose to intimidate the victim based on particular
characteristics of the victim. Id. at 491. The court emphasized, “there is a vast
difference between accepting the validity of a prior judgment of conviction entered
in a proceeding in which the defendant had the right to a jury trial and the right to
require the prosecutor to prove guilt beyond a reasonable doubt, and allowing the
judge to find the required fact under a lesser standard of proof.” Id. at 496.

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¶ 14 In February 2001, our legislature amended section 111-3(c-5) of the Code of
Criminal Procedure of 1963 (Criminal Code) (Pub. Act 91-953 (eff. Feb. 23, 2001)
(adding 725 ILCS 5/111-3(c-5))) in response to the decision in Apprendi. This
amendment brought the Criminal Code into conformity with Apprendi, expressly
incorporating the prior-conviction exception as well as the due process protections
afforded to defendants when an extended-term sentence is sought. Section
111-3(c-5) of the Criminal Code provides in relevant part: “Notwithstanding any
other provision of law, in all cases in which the imposition of the death penalty is
not a possibility, if an alleged fact (other than the fact of a prior conviction) is not an
element of an offense but is sought to be used to increase the range of penalties for
the offense beyond the statutory maximum that could otherwise be imposed for the
offense, the alleged fact must be included in the charging instrument or otherwise
provided to the defendant through a written notification before trial, submitted to a
trier of fact as an aggravating factor, and proved beyond a reasonable doubt.” 725
ILCS 5/111-3(c-5) (West 2010).

¶ 15 The question here is whether defendant’s juvenile adjudication, which qualified
defendant for an extended-term sentence, falls within Apprendi’s prior-conviction
exception and, in turn, the exception in section 111-3(c-5) of the Criminal Code.
This question is an issue of first impression before this court.

¶ 16 To fully understand Apprendi’s holding, we must examine some of the cases
that preceded it, namely Almendarez-Torres v. United States, 523 U.S. 224 (1998),
and Jones v. United States, 526 U.S. 227 (1999). In Almendarez-Torres, the Court
first recognized the prior-conviction exception. There, the defendant was charged
pursuant to a federal statute with the offense of illegal reentry to the United States
by a deported alien. The offense authorized a prison term of up to two years. A
subsection of the statute authorized a prison term of up to 20 years if the defendant
had been deported subsequent to a conviction for the commission of an aggravated
felony. The question before the Court was whether the subsection of the statute
defined a separate offense or simply authorized an enhanced penalty.
Almendarez-Torres, 523 U.S. at 226. If the prior aggravated felony conviction was
a separate offense, the State was required to charge the conviction in the indictment
(and prove it beyond a reasonable doubt to a jury). Id. If the prior conviction merely
authorized an enhanced sentence, then the prior conviction was not an element of
the offense and need not be charged. Id. The Court concluded that the subsection

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 was a penalty provision that authorized a court to increase the sentence for a
recidivist but did not define a separate offense. Id. It reasoned that the relevant
statutory subject matter at issue was recidivism, which was “as typical a sentencing
factor as one might imagine.” Id. at 230.

¶ 17 In Jones, the Court considered whether a federal carjacking statute defined
three distinct offenses or a single offense with a choice of three maximum
penalties, two of them dependent on sentencing factors “exempt from the
requirements of charge and jury verdict.” Jones, 526 U.S at 229. The statute’s first
subsection authorized a maximum sentence of 15 years. The second and third
subsections authorized maximum sentences of 25 years and life imprisonment,
respectively, if the carjacking resulted in serious bodily injury or death. The Court
noted that the second and third subsections provided for “steeply” higher penalties
and also conditioned these penalties on further facts. It stated that “[i]t is at best
questionable whether the specification of facts sufficient to increase a penalty range
by two-thirds, let alone from 15 years to life, was meant to carry none of the process
safeguards that elements of an offense bring with them for a defendant’s benefit.”
Id. at 233. It concluded that the statute defined three separate offenses with distinct
elements, each of which must be charged by indictment, proven beyond a
reasonable doubt, and submitted to a jury for its verdict. Id. at 252. In
distinguishing its holding from Almendarez-Torres, the Court reiterated that it
viewed recidivism differently from other factors that enlarge the possible penalty
for an offense. The Court stated, “[o]ne basis for that possible constitutional
distinctiveness is not hard to see: unlike virtually any other consideration used to
enlarge the possible penalty for an offense, and certainly unlike the factor before us
in this case, a prior conviction must itself have been established through procedures
satisfying the fair notice, reasonable doubt, and jury trial guarantees.” Id. at 249.

¶ 18 Since Apprendi was decided, state and federal courts have not been uniform in
concluding whether a juvenile adjudication is the equivalent of a prior conviction
under Apprendi for sentencing purposes. The Ninth Circuit Court of Appeals was
the first court to address the issue in United States v. Tighe, 266 F.3d 1187 (9th Cir.
2001). In a split decision, the court determined that the prior-conviction exception
must be limited to prior convictions that were themselves obtained through
proceedings that included the right to a jury trial and proof beyond a reasonable
doubt. Id. at 1194. It concluded that juvenile adjudications that do not include the

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 right to a jury trial and the reasonable doubt burden of proof do not fall within the
prior-conviction exception. Id. The court relied on the language in Apprendi that
referred to accepting the validity of a prior judgment of conviction that was entered
in a proceeding in which the defendant had the right to a jury trial and the right to
require proof of guilt beyond a reasonable doubt. Id. It also relied on the language
in Jones that prior convictions are distinct because they were established through
procedures satisfying the fair notice, reasonable doubt, and jury trial guarantees. Id.
at 1193. The court characterized these constitutional procedural safeguards as the
“fundamental triumvirate of procedural protections.” Id.

¶ 19 The dissent in Tighe found that the court had reached an “unsupportable
conclusion” by taking the language in Jones and making a “quantum leap.” Id. at
1200 (Brunetti, J., dissenting). The dissent believed that the language in Jones only
stood for the basic proposition that Congress had the constitutional power to treat
prior convictions as sentencing factors subject to a lesser standard of proof because
the defendant presumably received all the process that was due when he was
convicted of the prior crime. Id. It explained that, for adults, such process would
include the right to a jury trial. For juveniles, however, such process would not
include that right. Therefore, the dissent concluded that when a juvenile
adjudication is the result of a proceeding in which a juvenile has received all the
process constitutionally due at the juvenile stage, there is no constitutional problem
in using that adjudication to support a later sentencing enhancement. Id.

¶ 20 Since Tighe, numerous courts have had the opportunity to address this issue. As
a result, there has been more agreement with the Tighe dissent. Agreeing with the
Tighe dissent and adopting what would become the majority view, in United States
v. Smalley, 294 F.3d 1030 (8th Cir. 2002), the Eighth Circuit Court of Appeals
concluded that juvenile adjudications could be characterized as “prior convictions”
for Apprendi purposes. Id. at 1033. The court explained that Apprendi did not
preclude such a conclusion, specifically noting “[w]e think that while the
[Apprendi] Court established what constitutes sufficient procedural safeguards (a
right to jury trial and proof beyond a reasonable doubt), and what does not
(judge-made findings under a lesser standard of proof), the Court did not take a
position on possibilities that lie in between these two poles.” Id. at 1032. Like the
Tighe dissent, the court also determined that the language in Jones that referred to
the “ ‘fundamental triumvirate of procedural protections’ ” was not intended to

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 define the term “ ‘prior conviction’ ” for constitutional purposes as a conviction
that “ ‘ha[s] been established through procedures satisfying fair notice, reasonable
doubt, and jury trial guarantees.’ ” Id. at 1032 (quoting Tighe, 266 F.3d at
1193-94). The court reasoned that the issue “should not turn on the narrow parsing
of words, but on an examination of whether juvenile adjudications, like adult
convictions, are so reliable that due process of law is not offended by such an
exemption.” Id. at 1033. Noting that the procedural protections afforded to
juveniles include the right to notice, the right to counsel, the right to confront and
cross-examine witnesses, the privilege against self-incrimination, and proof of guilt
beyond a reasonable doubt, it concluded that these safeguards were “more than
sufficient to ensure the reliability that Apprendi requires.” Id. Specifically
addressing the lack of a right to a jury for juveniles, the court believed that the lack
of such right did not undermine the reliability of adjudications in any significant
way because the use of a jury in the juvenile context is not constitutionally required
and, moreover, would not strengthen the fact-finding function. Id.

¶ 21 Joining the Eighth Circuit and embracing the majority view that a juvenile
adjudication falls within the Apprendi prior-conviction exception are the Courts of
Appeal for the First, Third, Fourth, Sixth, Seventh, and Eleventh Circuits. See
United States v. Jones, 332 F.3d 688, 696 (3d Cir. 2003) (because due process does
not require providing juveniles with the right to a jury trial, it follows that when a
juvenile is adjudicated guilty beyond a reasonable doubt in a bench trial that affords
all the due process protections that are required, the adjudication can properly be
characterized as a prior conviction for Apprendi purposes); United States v. Burge,
407 F.3d 1183, 1191 (11th Cir. 2005) (a prior nonjury juvenile adjudication that
was afforded all constitutionally required procedural safeguards can be
characterized as a prior conviction for Apprendi purposes); United States v.
Crowell, 493 F.3d 744, 750 (6th Cir. 2007) (the use of “procedurally sound”
juvenile adjudications to enhance a sentence does not violate due process because
juvenile adjudication proceedings provide sufficient procedural safeguards to
satisfy the reliability requirement “that is at the heart of Apprendi”); United States
v. Matthews, 498 F.3d 25, 35 (1st Cir. 2007) (finding no distinction between
juvenile adjudications and adult convictions for purposes of Apprendi’s
prior-conviction exception since both reflect “the sort of proven prior conduct that
courts historically have used in sentencing”); United States v. Wright, 594 F.3d
259, 264 (4th Cir. 2010) (because the defendant received all the process that was

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 due at his nonjury juvenile delinquency proceeding, the use of his juvenile
adjudication to enhance his sentence did not violate Apprendi); Welch v. United
States, 604 F.3d 408, 429 (7th Cir. 2010) (a prior juvenile adjudication, where the
defendant received all the protections to which he was constitutionally entitled, is a
prior conviction under Apprendi).

¶ 22 State supreme courts that have also joined the majority view are Kansas,
Indiana, Minnesota, Washington, and California. See State v. Hitt, 42 P.3d 732,
739-40 (Kan. 2002); Ryle v. State, 842 N.E.2d 320, 321-23 (Ind. 2005); State v.
McFee, 721 N.W.2d 607, 616-19 (Minn. 2006); State v. Weber, 149 P.3d 646, 653
(Wash. 2006) (en banc); People v. Nguyen, 209 P.3d 946, 957-58 (Cal. 2009).

¶ 23 Taking a middle ground position is the Supreme Court of Oregon. In State v.
Harris, 118 P.3d 236, 245-46 (Or. 2005) (en banc), the court held that the use of
prior juvenile adjudications as sentencing factors does not violate the jury trial right
guaranteed by the Sixth Amendment. Id. However, the court qualified its holding
by stating that the Sixth Amendment also requires that when such an adjudication is
offered as an enhancement factor to increase a criminal sentence, its existence must
either be proved to a trier of fact or be admitted by a defendant for sentencing
purposes following an informed and knowing waiver. Id at 246.

¶ 24 Agreeing with Tighe and joining the minority viewpoint is the Supreme Court
of Louisiana. In State v. Brown, 879 So. 2d 1276 (La. 2004), the court held that
because juveniles do not have a right to a jury trial in juvenile adjudicatory
proceedings, juvenile adjudications cannot be used to enhance adult felony
convictions. Id. at 1288. The court reasoned that although juvenile adjudications
are sufficiently reliable without a jury trial to support dispositions within the
juvenile system, those adjudications are not sufficiently reliable under Apprendi to
support enhanced sentencing for adults. Id. The dissenting justice disagreed,
concluding that “a fair reading of Apprendi” did not preclude the use of a juvenile
adjudication to enhance an adult criminal sentence. Id. at 1290-91 (Traylor, J.,
dissenting). The dissent reasoned that when a juvenile adjudication comports with
the requirements of fundamental fairness as set forth by the Supreme Court, it is
constitutionally permissible to use that adjudication to enhance an adult criminal
sentence. Id. at 1291.

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¶ 25 Turning to this court’s case law, although this issue is one of first impression,
we did acknowledge and briefly discuss the issue in People v. Taylor, 221 Ill. 2d
157 (2006). In Taylor, we considered whether a minor who had been adjudicated
delinquent was considered a “person convicted of a felony” for purposes of the
offense of escape as set forth in section 31-6(a) of the Criminal Code of 1961 (720
ILCS 5/31-6(a) (West 1998)). Ultimately, we concluded that for purposes of the
escape statute, a juvenile adjudication could not be considered tantamount to a
felony conviction. Taylor, 221 Ill. 2d at 170. Relevant here is our statement that the
issue addressed in Taylor was “to be distinguished from the somewhat analogous
issue of whether a juvenile adjudication is considered a ‘prior conviction’ for
sentencing enhancement purposes under Apprendi.” Id. at 173. We noted the split
among the federal circuits in addressing this issue and stated “[w]e take no position
here with respect to the division among the federal circuits.” Id. at 175. Although
Taylor included a brief discussion of the issue we address in this appeal, it is clear
that our holding in Taylor is distinct from the question now presented, and our
conclusion in Taylor has no bearing on our analysis here.

¶ 26 Thus, we turn to the Supreme Court’s decision in McKeiver v. Pennsylvania,
403 U.S. 528 (1971) (plurality opinion). In McKeiver, the Supreme Court held that
there is no constitutional right to a jury trial in juvenile adjudicatory proceedings.
Id. at 545. The Court reasoned that “[t]he imposition of the jury trial on the juvenile
court system would not strengthen greatly, if at all, the factfinding function, and
would, contrarily, provide an attrition of the juvenile court’s assumed ability to
function in a unique manner.” Id. at 547.

¶ 27 In Illinois, article V of the Juvenile Court Act of 1987 (Juvenile Court Act) (705
ILCS 405/5-101 et seq. (West 2010)) governs juvenile delinquency proceedings. It
aims to balance a community’s interest in holding juveniles accountable for their
unlawful conduct with attempting to rehabilitate those juveniles. In re Rodney H.,
223 Ill. 2d 510, 520 (2006). The “important purposes” of article V are to protect
citizens from juvenile crime, hold each juvenile offender directly accountable for
his or her acts, provide an individualized assessment of each alleged and
adjudicated delinquent juvenile in order to rehabilitate and to prevent further
delinquent behavior, and provide due process as required by the constitutions of the
United States and the State of Illinois. 705 ILCS 405/5-101(1) (West 2010).
Further, article V provides that “minors shall have all the procedural rights of adults

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 in criminal proceedings, unless specifically precluded by laws that enhance the
protection of such minors,” except that “[m]inors shall not have the right to a jury
trial unless specifically provided by this Article.” 705 ILCS 405/5-101(3) (West
2010). Article V only provides the right to a jury trial when a minor is tried (1) as a
habitual juvenile offender (705 ILCS 405/5-815(d) (West 2010)), (2) as a violent
juvenile offender (705 ILCS 405/5-820(d) (West 2010)), or (3) under the extended
juvenile jurisdiction provision (705 ILCS 405/5-810 (West 2010)). Because
defendant’s delinquency proceedings did not involve any of the above provisions,
he did not have the right to a jury trial in those proceedings.

¶ 28 Here, we find the majority position persuasive and conclude that a prior
juvenile adjudication of delinquency falls within Apprendi’s prior-conviction
exception and the exception in section 111-3(c-5) of the Criminal Code. The
Supreme Court made clear in McKeiver that due process does not require the right
to a jury trial in juvenile proceedings, reasoning that a jury trial “would not
strengthen greatly, if at all, the factfinding function.” McKeiver, 403 U.S. at
545-47. In Almendarez-Torres, the Court repeatedly emphasized the tradition of
regarding recidivism as a sentencing factor, and in Jones, the Court explained that a
prior conviction was different from other factors that increase the sentence for an
offense because of the procedural safeguards inherent in the proceedings that
resulted in that conviction. Almendarez-Torres, 523 U.S. at 230; Jones, 526 U.S. at
249. The Court solidified those holdings in Apprendi, further noting the “vast”
difference between accepting the validity of a prior conviction and allowing a judge
to find a required fact under a lesser standard of proof. Apprendi, 530 U.S. at 496.

¶ 29 A juvenile adjudication of delinquency is similar to a prior conviction in the
sense that both are the result of a person’s prior unlawful behavior or recidivism.
The proceedings that result in a juvenile adjudication contain the same
constitutional procedural safeguards as those proceedings that result in a prior
conviction, except the jury trial right (unless specified by article V of the Juvenile
Court Act). However, because there is no constitutional right to a jury trial in
juvenile proceedings, a juvenile adjudication and a prior conviction both result
from proceedings in which the minor or the defendant received constitutionally
sufficient procedural safeguards. A juvenile adjudication, therefore, is no less valid
or reliable a form of recidivism than is a prior conviction. For purposes of
extended-term sentencing, they are on equal footing. Though defendant did not

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 have the right to a jury trial in his delinquency proceedings, he did have all the other
procedural rights of adults in criminal proceedings, such as the right to notice,
counsel, confrontation, cross-examination, and proof of guilt beyond a reasonable
doubt. See 705 ILCS 405/5-101(3), 5-525, 5-530, 5-605, 5-610 (West 2010). The
presence of such process in juvenile proceedings forecloses any conclusion that a
juvenile adjudication is not the equivalent of a prior conviction under Apprendi. We
note the following reasoning of the Fourth Circuit. In Wright, the court stated,
“there is no reason to hold that an adjudication that is constitutionally sufficient to
commit a juvenile to confinement, in some instances until age twenty-one, is
somehow off limits for sentencing consideration if the same juvenile later [commits
an offense as an adult].” Wright, 594 F.3d at 264. While the Juvenile Court Act
promotes accountability as well as rehabilitation, section 5-5-3.2(b)(7) of the Code
of Corrections anticipates that those juveniles who are not rehabilitated and commit
crimes as adults may be punished in accordance with their entire criminal history.
Considering a defendant’s entire recidivist past is in no way incongruent with the
aims of the Juvenile Court Act.

¶ 30 Moreover, we do not believe that the Supreme Court’s language in Apprendi
and Jones that referred to the jury trial right was intended to include only those
prior convictions that included that right. The Apprendi Court noted the jury trial
right as one of the procedural safeguards that assured the validity of a prior
conviction, but it did not specifically condition the prior-conviction exception upon
that right. Apprendi, 530 U.S. at 496. Nor did it specifically identify a jury trial as a
required procedural safeguard. We agree with the Eighth Circuit’s view that “while
the [Apprendi] Court established what constitutes sufficient procedural safeguards
(a right to jury trial and proof beyond a reasonable doubt), and what does not
(judge-made findings under a lesser standard of proof), the Court did not take a
position on possibilities that lie in between these two poles.” Smalley, 294 F.3d at
1032.

¶ 31 We are not persuaded by defendant’s contentions to the contrary. Defendant
argues that because section 5-5-3.2(b)(7) of the Code of Corrections and section
111-3(c-5) of the Criminal Code do not expressly define a prior delinquency
adjudication as a prior conviction, defendant’s prior adjudication does not fall
within Apprendi’s prior-conviction exception. He maintains that although section
5-5-3.2(b)(7) of the Code of Corrections allows a court to use an adult offender’s

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 prior delinquency adjudication for a Class X or Class 1 felony as a basis for
imposing an extended-term sentence, the statute is silent as to the manner in which
the prior adjudication must be pled or proven. Defendant relies on case law for
support as well as the Sex Offender Registration Act (Registration Act) (730 ILCS
150/1 et seq. (West 2010)), wherein the legislature expressly equated a juvenile
adjudication with a conviction. 730 ILCS 150/2 (West 2010).

¶ 32 We find defendant’s reliance on case law and the Registration Act misplaced.
He relies on People v. Villa, 2011 IL 110777, where we rejected the State’s
argument that juvenile adjudications should be put on equal footing with criminal
convictions for impeachment purposes, and In re W.W., 97 Ill. 2d 53 (1983), where
we determined that a conviction was not the same as a juvenile adjudication for
purposes of a statute authorizing State’s Attorney fees to defend an appeal. Villa,
2011 IL 110777, ¶ 40; In re W.W., 97 Ill. 2d at 57-58.2 However, both Villa and
In re W.W. involved the interpretation of statutes, which has no bearing on the issue
presented here. We reiterate that in Taylor we made clear that our interpretation of
the phrase “person convicted of a felony” for purposes of the offense of escape was
to be distinguished from the issue of whether a juvenile adjudication is considered a
prior conviction for sentencing enhancement purposes under Apprendi. Likewise,
regarding defendant’s reliance on the Registration Act, the fact that the legislature
expressly equated a juvenile adjudication with a conviction in that statute also has
no bearing on the issue presented here. Further, the purpose of the amendment to
section 111-3(c-5) of the Criminal Code was to codify Apprendi’s holding to bring
the Criminal Code into conformity with Apprendi. Thus, we reject defendant’s
contention that because section 5-5-3.2(b)(7) of the Code of Corrections and
section 111-3(c-5) of the Criminal Code do not expressly define a juvenile
adjudication as a prior conviction, his prior adjudication does not fall within
Apprendi’s prior-conviction exception.

¶ 33 We conclude that defendant’s prior juvenile adjudication, which qualified
defendant for an extended-term sentence, is the equivalent of a prior conviction
under Apprendi and falls within Apprendi’s prior-conviction exception as well as

2
Defendant also relies on People v. Rankin, 297 Ill. App. 3d 818 (1998); however, he
concedes that due to an amendment to the sentencing statute, it does not address the issue
presented here. Therefore, we need not address it.

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 the exception in section 111-3(c-5) of the Criminal Code. The State was not
required to allege the fact of his juvenile adjudication in the indictment or prove its
existence beyond a reasonable doubt. Since we find that no error occurred here,
defendant cannot establish plain error.

¶ 34 B. Defendant’s PSI

¶ 35 We next consider whether the information contained in defendant’s PSI
established that he had been adjudicated delinquent of residential burglary.
Defendant contends that the information contained in the PSI was “too ambiguous,
and too tenuous, to conclusively establish” that he had been adjudicated delinquent
of residential burglary. He argues that his PSI suffered from the same infirmities as
the documents found unreliable in Shepard.

¶ 36 The issue in Shepard concerned what sources a court may constitutionally rely
upon in its role as fact finder at sentencing. In Shepard, the United States Supreme
Court held that a court sentencing a defendant under the Armed Career Criminal
Act of 1984 (ACCA) (18 U.S.C. § 924(e) (2006)), which is thus required to
determine whether a burglary is a “generic burglary” under the statute, is generally
limited to examining the statutory definition, charging document, written plea
agreement, transcript of plea colloquy, and any explicit factual finding by the trial
judge to which the defendant assented. Shepard, 544 U.S. at 16. A sentencing judge
may not look to police reports or complaint applications to make the determination.
Id.

¶ 37 This court has previously held that a PSI is generally a reliable source for the
purpose of inquiring into a defendant’s criminal history. People v. Williams, 149
Ill. 2d 467, 491 (1992). A PSI is compiled pursuant to statutory guidelines set forth
in the Code of Corrections, which require the inclusion of certain information,
including the defendant’s “history of delinquency.” 730 ILCS 5/5-3-2(a)(1) (West
2010). Additionally, the Juvenile Court Act permits juvenile court records to be
accessed under certain circumstances, including when a minor becomes 18 years or
older and is the subject of criminal proceedings. 705 ILCS 405/1-8(A)(4)(d) (West
2014)).

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¶ 38 We initially note that the accuracy of the PSI with regard to defendant’s prior
adjudication for residential burglary was not disputed at the sentencing hearing.
Defense counsel only sought to amend the PSI to include defendant’s claim that he
was a father, which the PSI did not reflect. An extensive discussion thus ensued as
to whether defendant could have been the father of a recently born child based on
the dates of his incarceration. However, there was no question or discussion as to
defendant’s criminal history as set forth in the PSI, despite several references that
defendant was eligible for an extended-term sentence based on his prior juvenile
adjudication for residential burglary. Although defendant points out that prior to
trial he denied having a prior adjudication for residential burglary, he clearly
abandoned that claim at sentencing. Had defendant continued to believe he did not
have a prior adjudication for residential burglary, he certainly knew how to inform
defense counsel and the court as to the alleged inaccuracy of the PSI, as he did with
his claim that he was a father.

¶ 39 Here, we find that defendant’s PSI established he had been adjudicated
delinquent of residential burglary. As set forth above, the PSI provided that in
2005, defendant had been adjudicated delinquent of the offenses alleged in the
numerous petitions, including a supplemental petition alleging three counts of
residential burglary, and had been sentenced to probation until his twenty-first
birthday for the aforementioned offenses. In addition to the above language, the
PSI enumerated each of the offenses alleged in the petitions and listed a disposition
next to each one. The disposition for each of the offenses, which included the three
counts of residential burglary, was “Juvenile Probation.” As the appellate court
aptly found, defendant’s PSI was “unequivocal” with respect to his prior juvenile
adjudication. We disagree with defendant that the information contained in the PSI
was ambiguous or tenuous.

¶ 40 Further, the use of defendant’s PSI does not run afoul of Shepard. The Court in
Shepard was concerned with what types of documents a court can rely upon at
sentencing to determine the facts about a conviction, rather than determining if the
defendant had a prior conviction. Shepard, 544 U.S. at 25-26. Here, the circuit
court only recognized that defendant had a prior adjudication for residential
burglary; it did not engage in any judicial fact finding about that adjudication.
Additionally, a PSI is of a markedly different character than a police report or
complaint application, with which the Court in Shepard was concerned. As noted

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 above, a PSI, with its statutorily mandated requirements, is generally viewed as a
reliable source of a defendant’s criminal history. We conclude that defendant’s PSI
conclusively established he had been adjudicated delinquent of residential burglary
and find no error in the court’s reliance on the PSI. Accordingly, since there is no
error, there can be no plain error and no basis to excuse defendant’s procedural
default. See, e.g., People v. Ceja, 204 Ill. 2d 332, 356 (2003); People v. Sims, 192
Ill. 2d 592, 624 (2000).

¶ 41 III. CONCLUSION

¶ 42 We conclude that defendant’s prior juvenile adjudication is the equivalent of a
prior conviction under Apprendi and falls within Apprendi’s prior-conviction
exception, as well as the exception in section 111-3(c-5) of the Criminal Code, and
that defendant’s PSI conclusively established the fact of his prior juvenile
adjudication for residential burglary. For the foregoing reasons, we affirm the
judgment of the appellate court.

¶ 43 Appellate court judgment affirmed.

¶ 44 JUSTICE BURKE, dissenting:

¶ 45 Defendant’s principal argument in this appeal is that his extended-term
sentence was imposed in violation of section 111-3(c-5) of the Code of Criminal
Procedure of 1963 (725 ILCS 5/111-3(c-5) (West 2010)) because the sentence was
based, in part, on a prior juvenile delinquency adjudication which was neither pled
in the indictment nor proved to the jury beyond a reasonable doubt. I agree. For this
reason I cannot join the majority opinion and, therefore, must respectfully dissent.

¶ 46 I

¶ 47 There is no dispute that, under Illinois law, a trial court may use an adult
offender’s prior juvenile delinquency adjudication as a factor to consider when
deciding whether to impose an extended-term sentence, so long as the adjudication
involved an act that, if committed by an adult, would be a Class X or Class 1 felony

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 and the conviction occurred within 10 years after the adjudication. 730 ILCS
5/5-5-3.2(b)(7) (West 2010). What is at issue in this appeal is the manner in which
the prior adjudication must be pled or proven before it may be used by the trial
court in this way.

¶ 48 In Apprendi v. New Jersey, 530 U.S. 466 (2000), the United States Supreme
Court held that the due process clause of the fourteenth amendment requires any
fact that increases the penalty for a crime beyond the prescribed statutory
maximum, other than the fact of a “prior conviction,” to be submitted to a jury and
proved beyond a reasonable doubt. Id. at 476, 490. After Apprendi was decided, the
General Assembly enacted section 111-3(c-5) of the Code of Criminal Procedure of
1963 (725 ILCS 5/111-3(c-5) (West 2010)) to bring our state law into conformity
with Apprendi’s constitutional requirements.

¶ 49 Section 111-3(c-5) provides, in pertinent part:

“[I]f an alleged fact (other than the fact of a prior conviction) is not an element
of an offense but is sought to be used to increase the range of penalties for the
offense beyond the statutory maximum that could otherwise be imposed for the
offense, the alleged fact must be included in the charging instrument or
otherwise provided to the defendant through a written notification before trial,
submitted to a trier of fact as an aggravating factor, and proved beyond a
reasonable doubt.”

¶ 50 Both Apprendi and section 111-3(c-5) explicitly exempt only “prior
convictions” from those facts that must be pled in the charging instrument and
proved beyond a reasonable doubt before they can be used as an aggravating factor
to increase the penalty for an offense. Neither Apprendi nor section 111-3(c-5)
makes any mention of prior juvenile delinquency adjudications.

¶ 51 Before this court, defendant contends that a juvenile delinquency adjudication
is not a “conviction” within the meaning of section 111-3(c-5). Therefore,
defendant maintains, a trial court may only base an extended-term sentence on a
prior adjudication if that adjudication was included in the charging instrument and
proved to the fact finder beyond a reasonable doubt. In this case, however,
defendant’s prior adjudication was referenced only in a presentencing investigative

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 report. Accordingly, defendant asserts that the trial court violated section
111-3(c-5) and committed plain error when it imposed an extended-term sentence.

¶ 52 Defendant’s argument raises a question of statutory construction. When
construing a statute, we first look to the language of the statute itself, which is the
surest and most reliable indicator of the legislature’s intent. People v. Pullen, 192
Ill. 2d 36, 42 (2000). The language of the statute must be given its plain and
ordinary meaning, and where the statutory language is clear and unambiguous, we
may not resort to other aids of construction. People v. Taylor, 221 Ill. 2d 157, 162
(2006); People v. Tucker, 167 Ill. 2d 431, 435 (1995). In addition, this court may
not correct what we believe to be a legislative oversight by rewriting a statute in a
manner inconsistent with its clear and unambiguous language under the guise of
statutory interpretation. Taylor, 221 Ill. 2d at 162-63; Pullen, 192 Ill. 2d at 42.

¶ 53 In construing the term “conviction” in section 111-3(c-5), we do not write on a
clean slate. Illinois courts have long held that, when used in a statutory enactment,
the word “conviction” does not include juvenile adjudications. For example, in
In re W.W., 97 Ill. 2d 53 (1983), this court held that section 8 of “An Act
concerning fees and salaries, and to classify the several counties of this state with
reference thereto” (Ill. Rev. Stat. 1979, ch. 53, ¶ 8), which provided that State’s
Attorney fees are to be taxed as costs and collected from the “defendant” upon
“conviction,” had no application to juvenile proceedings. In so holding, this court
concluded that “a minor is neither ‘convicted’ nor considered a ‘defendant’ or an
‘accused.’ ” In re W.W., 97 Ill. 2d at 57.

¶ 54 Similarly, in People v. Rankin, 297 Ill. App. 3d 818 (1998), our appellate court
found no authority for a trial court to impose an extended-term sentence based on
the defendant’s juvenile adjudication under the then-existing version of the statute.
The court reached this conclusion because juvenile proceedings are not criminal
and a juvenile adjudication does not constitute a conviction. Id. at 824-25.

¶ 55 In People v. Taylor, 221 Ill. 2d 157 (2006), this court considered whether a
minor who had been adjudicated delinquent for a felony offense could be
considered a “person convicted of a felony” for purposes of our escape statute (720
ILCS 5/31-6(a) (West 1998)). In our discussion in Taylor, we distinguished the
issue that was then before us from “the somewhat analogous issue of whether a
juvenile adjudication is considered a ‘prior conviction’ for sentencing enhancement

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 purposes under Apprendi v. New Jersey, 530 U.S. 466 *** (2000).” Taylor, 221 Ill.
2d at 173. We said:

“We take no position here with respect to the division among the federal
circuits. We only discuss the jurisprudence on the use of nonjury juvenile
adjudications for Apprendi purposes because we find it helpful to our analysis
to illustrate the important differences between the case before us and the federal
cases cited above. In each of the federal cases, a statute specifically defined a
‘conviction’ as a prior juvenile adjudication for purposes of the offense at issue.
Here, in contrast, the legislature has not defined the term ‘conviction’ in the
escape statute to include juvenile adjudications. Moreover, the key issue in the
present case involves proof of a prior conviction as an element of the offense
where the applicable statute fails to define an ‘adjudication’ as a ‘conviction.’
Thus, the primary issue here turns on a question of statutory construction, while
the principal issue in the federal cases turned on whether an adjudication could
be classified as a prior conviction for Apprendi purposes, not on whether it
could be classified as a ‘conviction’ for purposes of establishing an element of
an offense. The distinction is critical, of course, because nothing in a penal
statute may be construed against a defendant by intendment or implication
([People v. Laubscher, 183 Ill. 2d 330, 337 (1998)]).” (Emphasis in original.)
Id. at 175-76.

Citing In re W.W. and Rankin, we then went on to state the governing rule:

“In the absence of a statute expressly defining a juvenile adjudication as a
conviction, Illinois courts have consistently held that juvenile adjudications do
not constitute convictions.” Id. at 176.

¶ 56 Finally, and more recently, in People v. Villa, 2011 IL 110777, this court held
that a juvenile adjudication was inadmissible against a testifying defendant for
impeachment purposes. This conclusion rested, in part, on the fact that a juvenile
adjudication is not the same as a criminal conviction. Id. ¶ 40.

¶ 57 Section 111-3(c-5) exempts only “convictions” from those facts that must be
pled in the indictment and proved beyond a reasonable doubt before they can be
used as an aggravating factor to increase the penalty for an offense. Under
long-standing case law, a juvenile delinquency adjudication is not a “conviction.”

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¶ 58 Further, it is worth noting that the General Assembly may have had good reason
for treating juvenile adjudications differently than adult convictions under section
111-3(c-5). Requiring a juvenile adjudication to be pled and proven to a jury before
it may be considered for extended-term sentencing provides the sentencing judge
with additional information regarding the nature of the prior offense, including, in
particular, the extent of the juvenile’s culpability. See, e.g., Miller v. Alabama, 567
U.S. ___, 132 S. Ct. 2455 (2012) (noting the lack of maturity and diminished
culpability of juveniles). In this way, the sentencing judge can make a more
informed decision as to whether extended-term sentencing should be imposed on
the adult offender.

¶ 59 Since section 111-3(c-5) does not equate juvenile adjudications with criminal
convictions, the requirements of the statute had to be met before defendant’s
juvenile adjudication could be considered by the trial court in imposing an
extended-term sentence. This means that the fact of the defendant’s qualifying
juvenile adjudication had to be included in the charging instrument or otherwise
provided to the defendant through a written notification before trial, submitted to
the trier of fact as an aggravating factor, and proved beyond a reasonable doubt.
That did not occur here. In my view, the imposition of defendant’s extended-term
sentence under these circumstances constituted plain error.

¶ 60 II

¶ 61 Despite the foregoing, the majority holds that a juvenile adjudication is a
“conviction” within the meaning of section 111-3(c-5). Supra ¶ 33. Notably,
however, the majority reaches this conclusion without ever conducting any
statutory analysis. Instead, the majority’s determination is based solely on their
examination of cases from other jurisdictions, both federal and state, which have
considered whether, under Apprendi, it would violate a defendant’s due process
rights to treat a juvenile adjudication like a “prior conviction” and exempt the
adjudication from Apprendi’s pleading and proof requirements.

¶ 62 After reviewing the split of authority on this issue, the majority agrees with the
line of cases which holds that, even though a juvenile offender is not afforded the
right to a jury trial, juvenile adjudications may be treated like “prior convictions”
for Apprendi purposes because juvenile adjudications, like adult convictions, are

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 sufficiently reliable so that due process is not offended by such an exemption. See,
e.g., United States v. Smalley, 294 F.3d 1030, 1033 (8th Cir. 2002). Having adopted
this view, the majority then reasons that, because it would not violate defendant’s
due process rights to treat a juvenile adjudication like a “prior conviction,” then it
must follow that juvenile adjudications are included within the “prior conviction”
exception in section 111-3(c-5). Supra ¶¶ 15, 33. I disagree.

¶ 63 The majority appears to be laboring under the misconception that a finding that
it would not violate due process to treat a juvenile adjudication like a “prior
conviction” under Apprendi means that an adjudication is equivalent to a
conviction under section 111-3(c-5). But this is not true. Whether treating
defendant’s prior delinquency adjudication like a conviction for purposes of the
Apprendi exception violates due process concerns is a separate question from
whether our legislature intended the term “conviction” in our statutory provision to
include a juvenile adjudication. Or, stated otherwise, it is one thing to say that a
certain practice does not violate due process; it is a completely different thing to say
that the practice was authorized by our legislature in the first place.

¶ 64 Furthermore, as a general principle, courts of this state rely, whenever possible,
on nonconstitutional grounds to decide cases (Mulay v. Mulay, 225 Ill. 2d 601
(2007) (citing In re E.H., 224 Ill. 2d 172, 178 (2006) (listing cases))). The majority
should therefore have considered first whether a juvenile adjudication may be
deemed a “conviction” for purposes of section 111-3(c-5), as a matter of statutory
interpretation, before determining whether defendant’s due process rights were
violated under Apprendi.

¶ 65 In Illinois, the rule is clear that, for statutory purposes, the term “conviction”
does not include juvenile delinquency adjudications. It follows, therefore, that a
juvenile adjudication is not a “conviction” within the meaning of section
111-3(c-5). Whether it would violate due process to base an extended-term
sentence on a juvenile adjudication, as was done in this case, is an important issue.
However, until such time as the General Assembly actually authorizes that practice
under section 111-3(c-5), there is no need to reach the issue.

¶ 66 For the reasons set forth above, I dissent.

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