In re Zachary G.

2021 IL App (5th) 190450
NOTICE
Decision filed 05/25/21. The
text of this decision may be NO. 5-19-0450
changed or corrected prior to
the filing of a Peti ion for IN THE
Rehearing or the disposition of
the same.
APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT
______________________________________________________________________________

In re ZACHARY G., a Minor ) Appeal from the
) Circuit Court of
(The People of the State of Illinois, ) Monroe County.
)
Petitioner-Appellant, )
)
v. ) No. 19-JD-7
)
Zachary G., ) Honorable
) Julia R. Gomric,
Respondent-Appellee). ) Judge, presiding
______________________________________________________________________________

PRESIDING JUSTICE BOIE delivered the judgment of the court, with opinion.
Justices Welch and Vaughan concurred in the judgment and opinion.

OPINION

¶1 The People of the State of Illinois appeal from the trial court’s order denying the State’s

motion to designate the proceedings as an extended jurisdiction juvenile (EJJ) prosecution,

pursuant to section 5-810 of the Juvenile Court Act of 1987 (Act) (705 ILCS 405/5-810 (West

2018)). Specifically, the State argues that the trial court abused its discretion where it applied an

erroneous legal standard in denying the State’s motion to designate the case as an EJJ prosecution.

The juvenile does not dispute that the trial court used an erroneous legal standard in ruling on the

motion but argues that this court does not have jurisdiction to hear this appeal.

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¶2 I. Background

¶3 On August 26, 2019, the State filed a petition for adjudication of wardship alleging that

Zachary G., a 14-year-old minor, had committed the offenses of two counts of armed violence and

one count of aggravated battery. On October 24, 2019, the State filed a motion for discretionary

transfer to adult court pursuant to section 5-805(3) of the Act (id. § 5-805(3)), and on October 28,

2019, the State filed a motion to designate the proceeding as an EJJ prosecution under section 5-

810 of the Act. The Act provides that when a juvenile court designates a proceeding as an EJJ

prosecution, the minor subject to the EJJ prosecution is entitled to a jury trial. Id. § 5-810(3). If the

trial results in a guilty verdict, the trial court must impose a juvenile sentence and an adult sentence,

staying the adult sentence on the condition that the minor not violate the provisions of the juvenile

sentence. Id. § 5-810(4).

¶4 An evidentiary hearing was held on both motions on October 29, 2019. After hearing

evidence, the court determined that Zachary G. was a minor and that there was probable cause for

the charged offenses. The court then addressed the statutory factors for discretionary transfer as

well as a nonstatutory factor of the potential sentence Zachary G. could receive as an adult. The

trial court concluded that the State failed to prove that the requested transfer to adult court was

appropriate. Regarding the State’s petition to designate the proceedings as an EJJ prosecution, the

court simply stated:

“Though the extended juvenile jurisdiction mechanism offers an extra opportunity for the

juvenile to avoid an adult sentence by fulfilling the conditions of his juvenile sentence, the

ultimate issue of whether the juvenile should, under any mechanism, be punished as an

adult has already been decided by me on the motion to transfer him to the adult system.”

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The court further stated, “So, therefore, because I find that he—the State has failed to meet its

burden, that he should be tried and sentenced as an adult under the Motion to Transfer, the Motion

to Extend Juvenile Jurisdiction is also denied.” On October 30, 2019, the trial court entered a

written order denying the motions, and the State filed a certificate of impairment and notice of

appeal on the same date.

¶5 II. Analysis

¶6 The State appeals from the trial court’s order denying the State’s motion to designate the

case as an EJJ prosecution. The State argues that the trial court did not apply the proper legal

standard to the State’s motion but instead assumed that, as a matter of course, its denial of the

State’s transfer motion necessitated denial of its motion for EJJ prosecution. The trial court’s ruling

on the State’s motion to designate a case as an EJJ prosecution is reviewed for an abuse of

discretion. In re Dontrale E., 358 Ill. App. 3d 136, 139 (2005). The defendant concedes that the

trial court applied the incorrect legal standard, however, argues that this court does not have

jurisdiction to consider the State’s appeal of the trial court’s denial of the motion to treat the case

as an EJJ prosecution. The defendant argues that there is no basis in the Illinois Supreme Court

rules for jurisdiction to consider the State’s appeal of a motion to designate the case as an EJJ

prosecution because it is a nonfinal, interlocutory order in a juvenile case. The State argues that

this court has jurisdiction over this appeal as it is a final order and subject to the dictates of Illinois

Supreme Court Rule 604(a) (eff. July 1, 2017).

¶7 A. Jurisdiction

¶8 A determination of our jurisdiction over this case involves a matter of statutory and

supreme court rule interpretation, which we review de novo. In re Estate of Rennick, 181 Ill. 2d

395, 401 (1998). The same principles that govern the construction of statutes also guide the

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interpretation of the supreme court’s rules. People v. Salem, 2016 IL 118693, ¶ 11. Our goal is to

ascertain and give effect to the intention of the drafters of the rule. Id. The best indication of that

intent is the language of the rule itself, giving it its plain and ordinary meaning. People v.

Thompson, 238 Ill. 2d 598, 606 (2010).

¶9 The Illinois Constitution gives the appellate court jurisdiction to review final judgments.

Ill. Const. 1970, art. VI, § 6. That same section provides that this court may provide, by rules, for

appeals from other than final judgments. Id. Illinois Supreme Court Rule 660(a) (eff. Oct. 1, 2001)

provides that the criminal appeals rules apply to appeals from final judgments in delinquent minor

proceedings. Appeals from orders in criminal cases by the State are governed by Illinois Supreme

Court Rule 604(a)(1) (eff. July 1, 2017). Rule 604(a)(1) provides that

“the State may appeal only from an order or judgment the substantive effect of

which results in dismissing a charge for any of the grounds enumerated in section

114-1 of the Code of Criminal Procedure of 1963; arresting judgment because of a

defective indictment, information or complaint; quashing an arrest or search

warrant; or suppressing evidence.” Id.

¶ 10 The supreme court has held that the grounds enumerated in section 114-1 of the Code of

Criminal Procedure of 1963 (725 ILCS 5/114-1 (West 2018)) are not exclusive. People v. Lawson,

67 Ill. 2d 449, 455-56 (1977). The State retains the right to appeal in any case where the judgment

has the substantive effect of resulting in the dismissal of a charge. People v. DeJesus, 127 Ill. 2d

486, 495 (1989).

¶ 11 In People v. Martin, 67 Ill. 2d 462 (1977), the supreme court upheld the State’s right to

appeal from a trial court’s order denying the State’s motion to remove proceedings from juvenile

court under section 2-7(3) of the prior version of the Act (Ill. Rev. Stat. 1975, ch. 37, ¶ 702-7(3)

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(now codified at 705 ILCS 405/5-805(3))), which provided that the judge assigned to juvenile

matters may permit prosecution on the criminal charge if he found that it was not in the best

interests of the minor or the public to proceed under the Act. Martin, 67 Ill. 2d at 464-65. The

supreme court reasoned that an appeal pursuant to Rule 604(a)(1) was proper where “the

substantive effect of the trial court’s action *** was the dismissal of any future indictment.” Id. at

465. The supreme court looked to the substantive effect of the trial court’s ruling which effectively

prohibited the filing of criminal charges. Id. The court concluded that the trial court’s denial of a

motion to remove ought not be totally immunized from review. Id. at 466.

¶ 12 In DeJesus, proceedings against a juvenile were instituted in criminal court pursuant to the

“automatic transfer provision” of section 2-7(6)(a) of a prior version of the Act (Ill. Rev. Stat.,

1987, ch. 37, ¶ 702-7(6)(a) (now codified at 705 ILCS 405/5-130)). DeJesus, 127 Ill. 2d at 488.

The juvenile was later acquitted of murder, the charge subjecting him to the “automatic transfer

provision,” but was found guilty of armed robbery, an offense not listed in section 2-7(6)(a) of the

Act. Id. at 488-89. The juvenile was found guilty of an offense, armed robbery, which would be

subject to the Act rather than the Unified Code of Corrections (Ill. Rev. Stat. 1987, ch. 38, ¶ 1001-

1-1 et seq.). DeJesus, 127 Ill. 2d at 488-89. The State moved to permit sentencing under the Unified

Code of Corrections, but the trial court dismissed the State’s motion. Id. 489-91. When considering

whether this order was appealable, the supreme court broadly stated that, “[p]ursuant to Supreme

Court Rule 660(a) [citation], Rule 604(a)(1) also applies in juvenile delinquency proceedings.” Id.

at 495.

¶ 13 The supreme court found that implicit in Martin was the recognition that the State had an

appealable interest in pursuing criminal prosecution, as opposed to delinquency proceedings, and

the trial court’s action ought not to be totally immunized from review. Id. at 495-96. Thus, the

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supreme court determined that the trial court’s order was appealable pursuant to Rule 604(a)(1),

where the trial court had jurisdiction to rule on the State’s motion to sentence the juvenile under

the criminal laws, and the order denying said motion terminated the criminal prosecution prior to

final judgment. Id. at 498.

¶ 14 Martin and DeJesus were not examples of the supreme court exercising its power to modify

the applicable rules because, in those cases, the supreme court found that the effect of the trial

court’s orders was the termination of criminal proceedings against the juvenile. In re B.C.P., 2013

IL 113908, ¶ 12. Thus, the appeals were covered by the plain language of the rules. Id.

¶ 15 While the supreme court has held that a denial of the State’s motion to transfer a juvenile

prosecution to adult court may be appealed by the State and a dismissal of the State’s motion to

sentence the minor pursuant to the Unified Code of Corrections may be appealed by the State,

there is no precedent regarding the appealability of an order to designate a case as an EJJ

prosecution. The question to be answered here is whether the denial of the State’s motion to

designate a juvenile case as an EJJ prosecution is also appealable by the State.

¶ 16 Under section 5-810 of the Act, the juvenile court is given authority to impose an adult

sentence on a minor in conjunction with a juvenile sentence, staying the adult sentence pending

successful completion of the juvenile sentence. 705 ILCS 405/5-810 (West 2018); In re

Christopher K., 217 Ill. 2d 348, 369 (2005). A discretionary transfer motion and an EJJ motion

decide distinct issues. In re Christopher K., 217 Ill. 2d at 369. Section 5-805 of the Act allows the

State to prosecute a minor “under the criminal laws” (705 ILCS 405/5-805(3) (West 2018)),

meaning that the minor is prosecuted in the same manner as an adult offender. In re Christopher

K., 217 Ill. 2d at 353. A minor convicted and sentenced as an adult has no possibility of avoiding

an adult sentence. Id. at 370. However, a minor convicted in an EJJ prosecution remains within

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the juvenile justice system as long as he does not violate the conditions of his juvenile sentence or

commit a new offense (705 ILCS 405/5-810(4), (6) (West 2018)). In re Christopher K., 217 Ill. 2d

at 370. Whether to designate a case as an EJJ prosecution is not exactly the same as the issue of

whether to prosecute a minor as an adult under section 5-805(3). Id.

¶ 17 The appellate court has discussed the characteristics of EJJ prosecutions in relation to an

Apprendi 1 analysis and found that Apprendi did not apply to the EJJ statute because the EJJ statute

was not an adjudicatory statute, but rather a dispositional one, in that it does not determine a

respondent’s guilt or the specific sentence. In re M.I., 2013 IL 113776, ¶ 43; see also In re J.W.,

346 Ill. App. 3d 1, 11-12 (2004) (finding EJJ statute does not violate Apprendi because it did not

modify or change the elements of the crime the juvenile defendant was charged with, convicted

of, and sentenced under); In re Matthew M., 335 Ill. App. 3d 276, 289 (2002) (an EJJ prosecution

is like a transfer to adult court under section 5-805(2) and requires the trial court to make a

procedural determination as to whether a juvenile should receive an adult sentence; the only

difference is under the EJJ prosecution the adult sentence is stayed pending successful completion

of the juvenile sentence; and because a trial court’s designation of a case as an EJJ prosecution

does not adjudicate guilt, due process would not require a jury to make such a procedural

determination). The supreme court agreed that the EJJ statute is dispositional, not adjudicatory, in

nature. In re M.I., 2013 IL 113776, ¶ 46.

¶ 18 An EJJ designation merely assigns the case a status of being serious enough that an adult

sentence can be imposed if the juvenile defendant pleads or is found guilty. Id. ¶ 44. The statute

even provides that, unlike other juvenile cases, a defendant is eligible to have his or her case

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In Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), the United States Supreme Court “held a
criminal defendant has the right to insist that any fact, other than the fact of a prior conviction, that increases
his punishment beyond the statutory maximum ‘must be submitted to a jury, and proved beyond a
reasonable doubt.’ ” (Internal quotation marks omitted.) In re M.I., 2013 IL 113776, ¶ 40.
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determined by a jury. 705 ILCS 405/5-810(3) (West 2018). Thus, section 5-810 reflects the

legislature’s intent to show minors who qualify for the application of the statute greater leniency

than minors who qualify for discretionary transfer, while still providing them with a tangible

incentive to avoid flouting their juvenile sentences or reoffending. In re Christopher K., 217 Ill.

2d at 370. An EJJ prosecution, like a section 5-805(2) transfer, requires the trial court to make a

procedural determination as to whether the juvenile should receive an adult sentence under chapter

V of the Unified Code of Corrections (730 ILCS 5/ch. V (West 2018)).

¶ 19 Implicit in the Martin decision is a recognition that the State has an appealable interest in

pursuing a criminal prosecution, as opposed to delinquency proceedings. DeJesus, 127 Ill. 2d at

496. The DeJesus court reasoned that since both criminal trials under the Code of Criminal

Procedure of 1963 and adjudicatory hearings under the Act result in adjudications that are

indistinguishable for purposes of double jeopardy, the State’s interest in seeking prosecution under

criminal laws must stem from the different dispositional alternatives available under the Unified

Code of Corrections and the Act. Id. Thus, the State has a right to appeal so that it can pursue

sentencing alternatives under the Unified Code of Corrections for the offense charged. Id.

¶ 20 We are persuaded by the reasoning in DeJesus that “the State’s interest in seeking

prosecution under criminal laws must stem from the different dispositional alternatives available

under the Unified Code of Corrections and the Juvenile Court Act.” Id. Pursuant to the reasoning

of Martin and DeJesus, we find that a denial of the State’s motion to designate a proceeding as an

EJJ prosecution is appealable by the State pursuant to Rule 604(a). While only our supreme court

has the power to modify the applicable rules, we are simply applying the reasoning in DeJesus that

the trial court’s denial of the EJJ motion forever foreclosed the State’s right to seek the imposition

of an adult sentence. Therefore, denial of a State’s motion to designate an EJJ prosecution is more

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akin to the dismissal of a criminal charge than to the exclusion of evidence. Under Rule 604(a) the

State has a right to appeal any judgment that effectively foreclosed the State from obtaining a final

judgment. Id. at 497 (citing People v. O’Mahoney, 169 Ill. App. 3d 194 (1988)). The juvenile and

adult courts do not exist in separate spheres but are part of a single unified trial court. Id. at 498.

Because the trial court’s order effectively terminated the State from seeking an adult disposition,

the EJJ statute being dispositional, the denial of the State’s motion to designate the juvenile

proceeding as an EJJ prosecution foreclosed any adult sentence that would stem from sentencing

under the Unified Code of Corrections. The State has an appealable interest in pursuing criminal

charges, and the trial court’s order terminated a criminal prosecution prior to final judgment. Thus,

the appeal is covered by the plain language of the rules.

¶ 21 While the juvenile argues that the denial of the EJJ motion was a nonappealable

interlocutory order, we must reject that conclusion based on the supreme court’s analysis in Martin

and DeJesus. While the juvenile argues that DeJesus “rests on a shaky, arguably erroneous

foundation,” we note that this court is required to follow the decisions of our supreme court, which

are binding on all lower courts. People v. Davis, 388 Ill. App. 3d 869, 880 (2009). Therefore, we

find that this court has jurisdiction to consider the present appeal.

¶ 22 B. Denial of Motion to Designate Proceedings as an EJJ Prosecution

¶ 23 Since we have determined that we have jurisdiction to consider this appeal, we will proceed

with the State’s issue of whether the trial court abused its discretion in denying the State’s motion

to prosecute the minor pursuant to the EJJ statute (705 ILCS 405/5-810 (West 2018)). The State

argues that the trial court abused its discretion where it applied an erroneous legal standard in

denying the State’s motion to designate the proceeding as an EJJ prosecution. The defendant

concedes that the trial court committed error in applying the incorrect legal standard to its ruling

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on the State’s motion. We review a decision to designate a proceeding as an EJJ prosecution under

the abuse of discretion standard. In re Dontrale E., 358 Ill. App. 3d at 139.

¶ 24 The provision of the EJJ statute relating to the State’s argument reads as follows:

“(1)(a) If the State’s Attorney files a petition, at any time prior to

commencement of the minor’s trial, to designate the proceeding as an extended

jurisdiction juvenile prosecution and the petition alleges the commission by a minor

13 years of age or older of any offense which would be a felony if committed by an

adult, and, if the juvenile judge assigned to hear and determine petitions to

designate the proceeding as an extended jurisdiction juvenile prosecution

determines that there is probable cause to believe that the allegations in the petition

and motion are true, there is a rebuttable presumption that the proceeding shall be

designated as an extended jurisdiction juvenile proceeding.

(b) The judge shall enter an order designating the proceeding as an extended

jurisdiction juvenile proceeding unless the judge makes a finding based on clear

and convincing evidence that sentencing under the Chapter V of the Unified Code

of Corrections would not be appropriate for the minor based on an evaluation of the

following factors:

(i) the age of the minor;

(ii) the history of the minor, including:

(A) any previous delinquent or criminal history of the minor,

(B) any previous abuse or neglect history of the minor, and

(C) any mental health, physical and/or educational history of the

minor;

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 (iii) the circumstances of the offense, including:

(A) the seriousness of the offense,

(B) whether the minor is charged through accountability,

(C) whether there is evidence the offense was committed in an

aggressive and premeditated manner,

(D) whether there is evidence the offense caused serious bodily

harm,

(E) whether there is evidence the minor possessed a deadly weapon;

(iv) the advantages of treatment within the juvenile justice system

including whether there are facilities or programs, or both, particularly

available in the juvenile system;

(v) whether the security of the public requires sentencing under Chapter

V of the Unified Code of Corrections:

(A) the minor’s history of services, including the minor’s

willingness to participate meaningfully in available services;

(B) whether there is a reasonable likelihood that the minor can be

rehabilitated before the expiration of the juvenile court’s jurisdiction;

(C) the adequacy of the punishment or services.

In considering these factors, the court shall give greater weight to the

seriousness of the alleged offense[ ] and the minor’s prior record of delinquency

than to other factors listed in this subsection.” 705 ILCS 405/5-810(1) (West 2018).

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¶ 25 The trial court denied the State’s motion for the court to exercise its discretion and transfer

the prosecution to adult court and a motion to have the case declared an EJJ prosecution. In ruling

on the State’s motion to have the case declared an EJJ prosecution, the trial court held:

“Though the extended juvenile jurisdiction mechanism offers an extra opportunity

for the juvenile to avoid an adult sentence by fulfilling the conditions of his juvenile

sentence, the ultimate issue of whether the juvenile should, under any mechanism,

be punished as an adult has already been decided by me on the motion to transfer

him to the adult system.”

¶ 26 The court further stated, “So, therefore, because I find that he—the State has failed to meet

its burden, that he should be tried and sentenced as an adult under the Motion to Transfer, the

Motion to Extend Juvenile Jurisdiction is also denied.” The trial court issued a written order on

October 30, 2019, stating the same, citing In re Christopher K., 217 Ill. 2d 348.

¶ 27 In Christopher K., the trial court denied the State’s motion to transfer the case to adult

court, and that decision was affirmed on appeal. Id. at 353-54. The State subsequently filed a

motion to designate the juvenile case as an EJJ prosecution that was granted; the juvenile was

ultimately convicted of first degree murder following a jury trial. Id. at 355. On appeal, the

appellate court found that the trial court erred in designating the case as an EJJ prosecution because

the State’s EJJ motion was directed toward the “ ‘ultimate issue’ ” previously decided in the State’s

discretionary transfer motion. Id.

¶ 28 The supreme court then overturned the appellate court’s decision, finding that the law-of-

the-case doctrine did not preclude designation of the juvenile’s case as an EJJ prosecution. Id. at

364. The supreme court observed that there was no statutory language prohibiting designation of

a case as an EJJ prosecution after the denial of a discretionary transfer motion. Id. The supreme

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court concluded that the statutory schemes for discretionary transfer (705 ILCS 405/5-805, 5-810

(West 1998)), respectively, decide distinct issues. Id. at 369-70. Therefore, the supreme court held

that “where a trial court denies a motion for discretionary transfer, the denial is affirmed on appeal,

and the State subsequently files an EJJ motion, the trial court must consider the EJJ motion.” Id.

at 372.

¶ 29 Since Christopher K. was decided, the EJJ statute has been amended so that both the

discretionary transfer provision and the EJJ provision of the Act require the court to consider

identical factors. See 705 ILCS 405/5-805(3), 5-810(1) (West 2018). Nonetheless, the procedures

for discretionary transfer and the designation of a case as an EJJ prosecution are distinct.

¶ 30 The State maintains the burden of proof in a discretionary transfer motion. People v. Fuller,

292 Ill. App. 3d 651, 657 (1997). However, in a proceeding to designate a case as an EJJ

prosecution, once the State establishes the juvenile’s age as being 13 years or over, that the alleged

violation would be a felony offense in adult court, and that there is probable cause to believe the

allegations in the petition are true, then there is a rebuttable presumption that the case is to be

designated as an EJJ prosecution. 705 ILCS 405/5-810(1)(a) (West 2018). This presumption is

overcome only if the court finds that clear and convincing evidence shows that adult sentencing

would be inappropriate for the juvenile. Id. § 5-810(1)(b). Where the law dictates a mandatory

rebuttable presumption, once the State satisfies the prima facie prerequisites for the presumption,

the burden shifts to the opposing side to set forth evidence to overcome that presumption. In re

S.W., 315 Ill. App. 3d 1153, 1158 (2000). However, the trial court in this case found that, in part,

because the State failed to meet its burden for discretionary transfer, the motion to designate the

proceeding as an extended juvenile jurisdiction prosecution was also denied.

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¶ 31 Once the court found that the State had met its burden regarding the juvenile’s age and

probable cause to believe that the juvenile committed the alleged offenses, the court’s evaluation

was required to diverge into separate considerations for the transfer and EJJ motions. The trial

court’s decision conflated two distinct considerations and burdens of proof between the two

motions. The trial court was required to treat each motion separately and evaluate the statutory

factors with regard to the appropriate burden attached to each motion. Because the trial court did

not do this with respect to the State’s motion to designate the proceedings as an EJJ prosecution,

its denial of the State’s motion was an abuse of discretion.

¶ 32 III. Conclusion

¶ 33 For the foregoing reasons, the judgment of the trial court of Monroe County is reversed,

and the case is remanded for the trial court to consider the State’s motion to designate the

proceeding as an EJJ prosecution under the appropriate legal standard.

¶ 34 Reversed and remanded.

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 No. 5-19-0450

Cite as: In re Zachary G., 2021 IL App (5th) 190450

Decision Under Review: Appeal from the Circuit Court of Monroe County, No. 19-JD-7;
the Hon. Julia R. Gomric, Judge, presiding.

Attorneys Christopher Hitzemann, State’s Attorney, of Waterloo (Patrick
for Delfino and Patrick D. Daly, of State’s Attorneys Appellate
Appellant: Prosecutor’s Office, of counsel), for the People.

Attorneys Thomas J. Matthes, of Rosenblum, Schwartz, & Fry, P.C.,
for St. Louis, Missouri, for appellee.
Appellee:

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