People v. Jones

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Supreme Court Date: 2017.01.26
11:10:44 -06'00'

People v. Jones, 2016 IL 119391

Caption in Supreme THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
Court: DERRICK JONES, Appellant.

Docket No. 119391

Filed October 20, 2016

Decision Under Appeal from the Appellate Court for the Third District; heard in that
Review court on appeal from the Circuit Court of Will County, the Hon.
Daniel Rozak, Judge, presiding.

Judgment Appellate court judgment affirmed.

Counsel on Michael J. Pelletier, State Appellate Defender, Thomas A. Lilien,
Appeal Deputy Defender, and Josette M. Skelnik, Assistant Appellate
Defender, of the Office of the State Appellate Defender, of Elgin, for
appellant.

Lisa Madigan, Attorney General, of Springfield, and James Glasgow,
State’s Attorney, of Joliet (Carolyn E. Shapiro, Solicitor General, and
Michael M. Glick and John R. Schleppenbach, Assistant Attorneys
General, of Chicago, of counsel), for the People.
 Justices 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5/18-5 (West 2010) (repealed by Pub.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 No. 04 JD 00276, including three
counts of residential burglary. The PSI provided:
“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

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

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 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.
¶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

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 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).

¶ 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 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

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 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, “One 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 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

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 that the language in Jones that referred to the “ ‘fundamental triumvirate of procedural
protections’ ” was not intended to 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. (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 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

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 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.
¶ 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

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 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 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 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

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 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 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

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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 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 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).
¶ 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.

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¶ 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 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

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 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 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 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

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 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 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

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 factor to increase the penalty for an offense. Under long-standing case law, a juvenile
delinquency adjudication is not a “conviction.”
¶ 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 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

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 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.
¶ 67 CHIEF JUSTICE GARMAN and JUSTICE KILBRIDE join in this dissent.

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