People v. Carwell

2022 IL App (2d) 200495
No. 2-20-0495
Opinion filed August 9, 2022
______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Winnebago County.
)
Plaintiff-Appellee, )
)
v. ) No. 16-CF-3032
)
COLEY DEWAYNE CARWELL, ) Honorable
) Randy Wilt,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________

JUSTICE HUDSON delivered the judgment of the court, with opinion.
Justices Hutchinson and Brennan concurred in the judgment and opinion.

OPINION

¶1 Defendant, Coley Dewayne Carwell, appeals from the sentence he received after he pled

guilty to first-degree murder (720 ILCS 5/9-1(a)(1) (West 2016)) and aggravated battery with a

firearm (720 ILCS 5/12-3.05(e)(1) (West 2016)). Defendant, who was under 16 years of age on

the date of the offenses, was charged as an adult in criminal court, presumably pursuant to the

automatic transfer provision of section 5-130(1)(a) of the Juvenile Court Act of 1987 (Act) (705

ILCS 405/5-130(1)(a) (West 2016)). He remained in criminal court for his plea and sentencing.

On appeal, defendant argues that he was denied the effective assistance of counsel when his

defense counsel, after defendant’s guilty plea, unreasonably failed to seek his transfer to juvenile

court for sentencing. In response, the State argues that (1) defendant’s claim is inconsistent with
2022 IL App (2d) 200495

his guilty plea and, therefore, he was required to seek withdrawal of his plea before appealing;

(2) defendant’s guilty plea waived any claim pertaining to the procedural error in automatically

transferring defendant’s case to criminal court; and (3) defendant has not demonstrated a

reasonable probability that, if the case were transferred to juvenile court, the trial court would not

discretionarily transfer the case back to criminal court for resentencing. We hold that

(1) defendant’s claim is not inconsistent with his guilty plea and so his appeal is properly before

us, (2) his claim relates to sentencing and so was not waived by his guilty plea, and (3) he need

not show prejudice beyond that the trial court was precluded from exercising its discretion as to

whether he would be sentenced in criminal court or juvenile court. Therefore, we vacate

defendant’s sentence and remand with directions for proceedings under the Act.

¶2 I. BACKGROUND

¶3 On November 21, 2016, a grand jury entered a 22-count indictment against defendant. All

charges arose out of an incident on November 11, 2016, in which defendant shot and killed Jamario

Crawford and shot and wounded another victim identified as L.B. The indictment’s lead charge,

in count I, was first-degree murder (720 ILCS 5/9-1(a)(1) (West 2016)), with the specification that

defendant was subject to a 25-year-to-life additional sentence because he personally discharged a

firearm that proximately caused Crawford’s death (730 ILCS 5/5-8-1(d)(iii) (West 2016)). Counts

II through XX charged different theories of first-degree murder. Count IV, as originally filed,

alleged that defendant committed first-degree murder in that he, “without lawful justification and

with intent to kill or do great bodily harm to Jamario Crawford, shot Jamario Crawford thereby

causing the death of Jamario Crawford.” Count XXI charged defendant with the attempted murder

of L.B. (720 ILCS 5/8-4, 9-1 (West 2016)). Count XXII charged him with aggravated battery with

a firearm against L.B. (720 ILCS 5/12-3.05(e)(1) (West 2016)). The indictment listed defendant’s

-2-
2022 IL App (2d) 200495

date of birth as November 13, 2000, meaning that he was two days short of his sixteenth birthday

when he shot Crawford and L.B.

¶4 Before defendant was indicted, the trial court did not hold a transfer hearing pursuant to

section 5-805 of the Act (705 ILCS 405/5-805 (West 2016) (setting forth criteria for presumptive

or discretionary transfer of a juvenile)) or designate the proceeding as an extended jurisdiction

juvenile prosecution under section 5-810 of the Act (705 ILCS 405/5-810 (West 2016)). Nor does

the record suggest that defendant waived a transfer hearing. Instead, it appears that the State filed

defendant’s case in criminal court pursuant to section 5-130(1)(a) of the Act, which is the

automatic transfer provision. Section 5-130(1)(a) provides:

“The definition of delinquent minor under Section 5-120 of this Article shall not apply to

any minor who at the time of an offense was at least 16 years of age and who is charged

with: (i) first degree murder, (ii) aggravated criminal sexual assault, or (iii) aggravated

battery with a firearm as described in Section 12-4.2 or subdivision (e)(1), (e)(2), (e)(3), or

(e)(4) of Section 12-3.05 where the minor personally discharged a firearm as defined in

Section 2-15.5 of the Criminal Code of 1961 or the Criminal Code of 2012.

These charges and all other charges arising out of the same incident shall be

prosecuted under the criminal laws of this State.” 705 ILCS 405/5-130(1)(a) (West 2016).

¶5 On April 30, 2018, defendant agreed to plead guilty to count IV of the indictment (first-

degree murder), but without a specification relating to the use of a firearm, and count XXII

(aggravated battery with a firearm). Defense counsel told the court:

“Judge, at this time we are going to enter into a plea agreement, a partially

negotiated plea agreement, which would be an open plea without any promises as to a

sentence, and the only real agreement is that the potential for gun language on the first

-3-
2022 IL App (2d) 200495

degree murder charge he would not [sic] be pleading to, and he’d be pleading to Count 4.”

The State responded, “It would be Count 4 and Counts [sic] 22, so it would be a count of first

degree murder with no gun language.” Per the agreement, the State amended count IV of the

indictment to allege that defendant “struck”—rather than “shot”—Crawford, thereby causing his

death.

¶6 At defendant’s sentencing hearing, defendant’s mother testified that defendant was

negatively impacted by his father’s murder when defendant was nine months old and by the death

of his grandmother the summer before the shooting in this case. The court sentenced defendant to

consecutive prison terms of 25 years for first-degree murder and 6 years for aggravated battery

with a firearm.

¶7 Defense counsel filed a motion for reconsideration of the sentence but did not file a

certificate pursuant to Illinois Supreme Court Rule 604(d) (eff. July 1, 2017). The trial court denied

the motion. Defendant timely appealed, and appellate counsel moved for a summary remand based

on the lack of a Rule 604(d) certificate. We vacated the denial of defendant’s motion and remanded

the matter for Rule 604(d) compliance. On remand, the court held a new hearing on defendant’s

motion to reconsider. The State and defense counsel characterized defendant’s plea agreement as

“open with a cap.” They agreed that, under Rule 604(d), defendant could not seek reconsideration

of his sentence without moving to withdraw his guilty plea. Defendant declined to file such a

motion. Nonetheless, at a later date, the court addressed his motion to reconsider on the merits and

denied it. Defendant timely appeals.

¶8 II. ANALYSIS

¶9 On appeal, defendant argues that defense counsel was ineffective for failing to seek his

transfer to juvenile court after he was charged in criminal court under the automatic transfer

-4-
2022 IL App (2d) 200495

provision of section 5-130(1)(a) of the Act, which did not apply to him because he was under 16

years old at the time of the offenses. He argues that, had counsel objected and secured his transfer

to juvenile court, any retransfer to criminal court would have been a discretionary transfer under

section 5-805 of the Act (705 ILCS 405/5-805 (West 2016)); before such a transfer, he would have

been entitled to a hearing on whether he should be prosecuted in criminal court and subject to adult

penalties. Defendant notes that, alternatively, the State could have asked the court to designate the

proceedings as an extended jurisdiction juvenile prosecution under section 5-810 of the Act (705

ILCS 405/5-810 (West 2016)). He argues that counsel’s failure to object to the automatic transfer

prejudiced him because “his adult sentence was imposed in violation of the [Act].” He, therefore,

asks us to vacate his sentence so that his case can be transferred to juvenile court.

¶ 10 In response, the State argues that defendant waived his ineffectiveness claim, as a guilty

plea waives all nonjurisdictional claims of error. The State also argues that defendant’s claim

essentially repudiates the terms of his plea agreement:

“In exchange for defendant’s guilty plea, the State agreed to remove firearm language from

the charging instrument, significantly reducing [the] mandatory minimum he was facing

and dramatically reducing his overall potential sentencing range. And the parties’

agreement clearly encompassed an adult sentence, as indicated by the guilty plea

proceedings and defendant’s express understanding of the sentencing ranges he faced.

Defendant’s current action, in effect, is an attempt to hold the State to its end of the bargain

while unilaterally seeking relief from his end of the bargain. [Citation.] ‘That result

certainly would not advance our policy of encouraging properly administered plea

bargains.’ [Citation.].”

-5-
2022 IL App (2d) 200495

At oral argument, and in a subsequent motion to cite additional authority, the State characterizes

defendant’s plea as a partially negotiated plea because the State made a sentencing concession in

amending count IV to allege that defendant struck Crawford rather than shot him; the State thereby

eliminated defendant’s exposure to an add-on sentence for personal discharge of a firearm. The

State asserts that, because the plea was partially negotiated, defendant could not challenge his

sentence, as he does now, without seeking to withdraw the plea.

¶ 11 The State argues in the alternative that defendant has failed to show prejudice from

counsel’s omission: “Had trial counsel objected to the transfer of defendant’s case to adult court,

a discretionary transfer hearing would have undoubtedly been held, and the trial court would have

undoubtedly transferred defendant’s case.”

¶ 12 In reply, defendant argues first that his plea to murder and aggravated battery with a firearm

did not involve any sentencing concessions, so he is free to raise matters about sentencing,

including his claim that counsel’s omission denied him “the opportunity to be sentenced as a

juvenile pursuant to the [Act].” He notes that People v. Price, 2018 IL App (1st) 161202, ¶¶ 24-

25, recognizes that a defense attorney may be found ineffective for failing to seek a defendant’s

transfer to juvenile court for sentencing. Thus, according to defendant, it is proper to frame the

issue here as one of sentencing, which his guilty plea did not cover. He also cites Price for the

proposition that, to demonstrate prejudice, he need show only that the trial court would have

granted a motion to transfer the case to juvenile court; he need not further show that the trial court

would have denied a motion by the State to transfer the case back to criminal court for sentencing.

See Price, 2018 IL App (1st) 161202, ¶¶ 24-25.

¶ 13 A. Guilty Plea

-6-
2022 IL App (2d) 200495

¶ 14 We first address the State’s argument that defendant’s plea involved a sentencing

concession by the State so that his argument that counsel should have sought sentencing under the

Act conflicts with his plea agreement. Were the State correct about this, we would have no option

but to dismiss defendant’s appeal. Rule 604(d) provides:

“No appeal shall be taken upon a negotiated plea of guilty challenging the sentence

as excessive unless the defendant, within 30 days of the imposition of sentence, files a

motion to withdraw the plea of guilty and vacate the judgment. For purposes of this rule, a

negotiated plea of guilty is one in which the prosecution has bound itself to recommend a

specific sentence, or a specific range of sentence, or where the prosecution has made

concessions relating to the sentence to be imposed and not merely to the charge or charges

then pending.” Ill. S. Ct. R. 604(d) (eff. July 1, 2017).

Compliance with Rule 604(d) is a condition precedent for an appeal from a defendant’s plea of

guilty. Where the defendant has not filed the required postplea motion, the appellate court must

dismiss the appeal. People ex rel. Alvarez v. Skryd, 241 Ill. 2d 34, 40 (2011).

¶ 15 We hold that the State made a concession as to charging, not sentencing. Therefore,

defendant was free to challenge his sentence without seeking to withdraw his guilty plea. The State

contends, however, that its removal of the firearm reference from count IV reduced the maximum

sentence defendant could receive and, thus, was a sentencing concession. The State is incorrect on

two levels. The State’s intent in amending count IV to state that defendant “struck” Crawford

rather than “shot” him, consistent with its dismissal of the murder charges that specifically

included the firearm enhancement elements, was to make clear that it did not wish to expose

defendant to the firearm enhancement. See People v. White, 2011 IL 109616, ¶ 27 (mandatory

-7-
2022 IL App (2d) 200495

firearms enhancement triggered where factual basis for plea establishes that firearm was used in

commission of murder).

¶ 16 But more fundamentally, the State misunderstands the difference between charging

concessions and sentencing concessions. Under the United States Supreme Court’s holding in

Apprendi v. New Jersey, 530 U.S. 466 (2000), “facts that expose a defendant to a punishment

greater than that otherwise legally prescribed [are] by definition ‘elements’ of a separate legal

offense.” Apprendi, 530 U.S. at 483 n.10; see also People v. Jackson, 199 Ill. 2d 286, 295-96

(2002) (citing Apprendi on this point). Thus, even if the amendment to count IV was necessary to

make the firearm enhancement inapplicable, the State was still reducing the charge, not making a

sentencing concession. Put another way, under Apprendi principles, the fact that first-degree

murder with a firearm enhancement requires proof of an additional element makes it a separate

offense despite its not having a separate name.

¶ 17 We give no weight to defense counsel’s agreement on remand that the plea was “open with

a cap.” That characterization was inconsistent with the plea terms presented at sentencing, where

the parties made clear that the State’s only concession was to amend count IV to eliminate the

firearm specification. As noted, defense counsel told the court:

“Judge, at this time we are going to enter into a plea agreement, a partially

negotiated plea agreement, which would be an open plea without any promises as to a

sentence, and the only real agreement is that the potential for gun language on the first

degree murder charge he would not [sic] be pleading to, and he’d be pleading to Count 4.”

Under Apprendi principles, the concession presented here pertained to charging, not sentencing.

¶ 18 The State, in its motion for leave to cite additional authority, relies on the statement in

People v. Diaz, 192 Ill. 2d 211, 225 (2000), that, “if a plea agreement limits or forecloses the State

-8-
2022 IL App (2d) 200495

from arguing for a sentence from the full range of penalties available under law, in order to

challenge his sentence, a defendant must first move to withdraw his plea in the trial court.” This

holding has no application here. The plea agreement to the charge as amended did not foreclose

the State from seeking any sentence available for the base offense of first-degree murder, to which

defendant pled guilty. Cf. People v. Lumzy, 191 Ill. 2d 182, 187 (2000) (defendant may appeal

sentence without withdrawing plea where certain charges with higher sentencing ranges were

dropped so long as plea to remaining charge is completely open).

¶ 19 We thus conclude that a motion to withdraw defendant’s plea was not a condition precedent

to his appeal. We now move to the merits of the appeal.

¶ 20 B. Waiver

¶ 21 We begin with the State’s contention that defendant’s guilty plea waived any argument

based on the lack of a proper transfer proceeding. “It is well established that a voluntary guilty

plea waives all non-jurisdictional errors or irregularities ***.” (Internal quotation marks omitted.)

People v. Sophanavong, 2020 IL 124337, ¶ 33. However, no authority suggests that a guilty plea

waives matters that may be raised at sentencing. Despite the plea, defense counsel could have

raised defendant’s juvenile status as a sentencing issue. That is, the plea may have waived the error

that no transfer hearing was held before the plea, but it did not waive the error that no transfer

hearing was held before sentencing; these are separate errors. Two cases support this conclusion—

People ex rel. Alvarez v. Howard, 2016 IL 120729, and Price.

¶ 22 Howard and Price concerned a January 1, 2016, amendment that increased the minimum

age for automatic transfer to criminal court from 15 years old at the time of the offense to 16 years

old at the time of offense. See Pub. Act 99-258, § 5 (eff. Jan. 1, 2016) (amending 705 ILCS 405/5-

130(1)(a)). The question in Howard was whether the January 2016 amendment applied

-9-
2022 IL App (2d) 200495

retroactively; Howard held that it did, and Price explored the ramifications of that holding for a

defendant who was convicted but not sentenced at the time of the amendment. See Howard, 2016

IL 120729, ¶ 28; Price, 2018 IL App (1st) 161202, ¶¶ 23-26.

¶ 23 The Howard court concluded that the January 2016 amendment applied to “pending cases.”

Howard, 2016 IL 120729, ¶ 28. It noted that “ ‘[w]hether a defendant is tried in juvenile or criminal

court is purely a matter of procedure.’ ” Howard, 2016 IL 120729, ¶ 28 (quoting People v.

Patterson, 2014 IL 115102, ¶ 104). Consequently, a case can be moved from criminal court to

juvenile court after the commencement of the proceedings. Howard, 2016 IL 120729, ¶¶ 31-33.

(In Howard, the defendant’s case was “pending” because the State had filed charges against him.

Howard, 2016 IL 120729, ¶¶ 5, 32. In People v. Hunter, 2017 IL 121306, ¶¶ 29, 43, the supreme

court clarified that a case pending on direct appeal is not “pending” under Howard.) Indeed,

Howard was clear that where a defendant was automatically transferred to criminal court and his

case was still “pending” when the January 2016 amendment rendered him ineligible for automatic

transfer, his case must be transferred to juvenile court and remain there “unless and until it is

transferred to criminal court pursuant to a discretionary transfer hearing.” Howard, 2016 IL

120729, ¶ 35.

¶ 24 In Price, the First District examined Howard’s holding that the January 2016 amendment

applied to “pending cases.” Price reasoned that, because the sentence, not the conviction, is the

final order in a criminal case, a case remains “pending” under Howard until sentencing. Thus,

where a defendant, between his conviction and sentencing in criminal court, is rendered ineligible

(via the January 2016 amendment) for automatic transfer, his case must be transferred to juvenile

court if the required transfer hearing has not been held. See Price, 2018 IL App (1st) 161202,

¶¶ 20-22.

- 10 -
2022 IL App (2d) 200495

¶ 25 The Price court drew the proper conclusion from Howard. The sentence is the final

judgment in a criminal case. E.g., People v. Vara, 2018 IL 121823, ¶ 14. Thus, proceedings

between conviction and sentencing are “pending” under Howard. Where the January 2016

amendment made a defendant no longer eligible for automatic transfer, allowing the defendant’s

presentencing transfer to juvenile court while permitting the State to seek retransfer serves the

ends of justice by preventing a juvenile from being arbitrarily sentenced as an adult.

¶ 26 We recognize that the amendment discussed in Howard and Price was in effect before

defendant committed the offenses charged here. Thus, there is no issue of retroactivity here; rather,

defendant’s automatic transfer to criminal court was apparently an oversight. Nonetheless, Howard

and Price have relevance here. Under the rule in Price, defense counsel could have sought

defendant’s transfer to juvenile court after defendant entered his plea. Therefore, defendant’s

ineffectiveness claim was not waived by his guilty plea.

¶ 27 C. Ineffective Assistance of Counsel

¶ 28 Having rejected the State’s waiver argument, we turn to the merits of defendant’s claim. A

claim that a defendant was denied his constitutional right to the effective assistance of counsel is

governed by the familiar two-pronged test established in Strickland v. Washington, 466 U.S. 668

(1984). People v. Brown, 2017 IL 121681, ¶ 25. “Under Strickland, a defendant must establish that

his counsel’s performance fell below an objective standard of reasonableness and that he was

prejudiced by counsel’s deficient performance.” Brown, 2017 IL 121681, ¶ 25. Counsel’s

performance is measured by “an objective standard of competence under prevailing professional

norms.” People v. Evans, 186 Ill. 2d 83, 93 (1999). “An error by counsel, even if professionally

unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had

no effect on the judgment.” Strickland, 466 U.S. at 691. Rather, “[t]he defendant must show that

- 11 -
2022 IL App (2d) 200495

there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different. A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Strickland, 466 U.S. at 694. The ineffectiveness of trial

counsel may properly be raised for the first time on appeal; in such instances, our consideration of

the issue is equivalent to a de novo review. People v. Jefferson, 2021 IL App (2d) 190179, ¶ 26.

¶ 29 First, we hold that no plausible reason exists for defense counsel not to seek defendant’s

sentencing under the Act. Under Howard, the trial court would be required to grant defendant’s

request for a transfer to juvenile court. If the State then petitioned for a discretionary transfer back

to criminal court, the trial court would have to apply section 5-805(3)(b)(ii) of the Act (705 ILCS

405/5-805(3)(b)(ii) (West 2016)), which states that a court faced with a transfer petition must

consider, inter alia,

“the history of the minor, including:

***

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

(C) any mental health, physical, or educational history of the minor or combination

of these factors.”

Although the mental health and abuse factors might be addressed to an extent at sentencing, a

transfer hearing would accentuate them in a way that a sentencing hearing would not. It was

unreasonable for defense counsel not to secure a transfer to juvenile court, because a transfer back

to criminal court would not have been inevitable but, rather, a matter for the trial court’s discretion

under the statutory factors. Hence, the first prong of the Strickland standard is satisfied.

¶ 30 Citing Price, defendant argues that, to demonstrate prejudice, it is enough to show that the

trial court should have granted a presentencing motion to transfer him to juvenile court; he need

- 12 -
2022 IL App (2d) 200495

not also show that he would have remained in juvenile court for sentencing. That is an accurate

reading of Price, which stated:

“There can *** be little doubt that [the defendant] was prejudiced by his counsel’s

failure [to seek a transfer]. To demonstrate prejudice, a defendant asserting ineffective

assistance of counsel must only demonstrate that there was a ‘reasonable probability of a

different result,’ i.e., ‘a probability sufficient to undermine confidence in the outcome.’

[People v. Evans, 209 Ill. 2d 194, 220 (2004).] Here, if [the defendant’s] counsel had

moved for retroactive application of amended section 5-130, then, as a matter of law, that

motion should have been granted. [The defendant] could still have been sentenced as an

adult, but only at the trial court’s discretion.” Price, 2018 IL App (1st) 161202, ¶ 25.

¶ 31 We think this analysis is correct in essence; a defendant who should have had a transfer

hearing need not show more to establish prejudice. To understand why, we look to the United

States Supreme Court’s holding in Kent v. United States, 383 U.S. 541 (1966).

¶ 32 The defendant in Kent was 16 years old when District of Columbia (DC) police

apprehended him as a suspect in various offenses. Kent, 383 U.S. at 543. Under the applicable DC

statutes, his age made him “subject to the ‘exclusive jurisdiction’ of the Juvenile Court.” Kent, 383

U.S. at 543. The defendant’s attorney, on learning that the juvenile court intended to remit him to

the district court, filed motions seeking to have the juvenile court retain jurisdiction and requesting

access to his social services file in the juvenile court. Kent, 383 U.S. at 545-46. However,

“[t]he Juvenile Court judge did not rule on these motions. He held no hearing. He

did not confer with petitioner or petitioner’s parents or petitioner’s counsel. He entered an

order reciting that after ‘full investigation, I do hereby waive’ jurisdiction of petitioner and

directing that he be ‘held for trial for [the alleged] offenses under the regular procedure of

- 13 -
2022 IL App (2d) 200495

the U.S. District Court for the District of Columbia.’ He made no findings. He did not recite

any reason for the waiver.” Kent, 383 U.S. at 546.

¶ 33 On grant of certiorari, the defendant raised multiple claims; the Supreme Court addressed

only “the infirmity of the proceedings by which the Juvenile Court waived its otherwise exclusive

jurisdiction.” Kent, 383 U.S. at 552.

¶ 34 The Kent Court held that, despite the broad discretion of the juvenile court, the transfer was

improper:

“[T]he statute [providing for transfer] contemplates that the Juvenile Court should have

considerable latitude within which to determine whether it should retain jurisdiction over

a child or—subject to the statutory delimitation—should waive jurisdiction. But this

latitude is not complete. At the outset, it assumes procedural regularity sufficient in the

particular circumstances to satisfy the basic requirements of due process and fairness, as

well as compliance with the statutory requirement of a ‘full investigation.’ [Citation.]”

(Emphasis added.) Kent, 383 U.S. at 552-53.

That latitude “does not authorize the Juvenile Court, in total disregard of a motion for hearing filed

by counsel, and without any hearing or statement or reasons, to decide *** that the child will be

*** transferred to jail along with adults, and that he will be exposed to the possibility of a death

sentence instead of treatment for a maximum *** of five years.” Kent, 383 U.S. at 553-54.

“[T]here is no place in our system of law for reaching a result of such tremendous

consequences without ceremony—without hearing, without effective assistance of counsel,

without a statement of reasons. It is inconceivable that a court of justice dealing with adults,

with respect to a similar issue, would proceed in this manner.” Kent, 383 U.S. at 554.

- 14 -
2022 IL App (2d) 200495

“It is clear beyond dispute that the waiver of jurisdiction is a ‘critically important’ action

determining vitally important statutory rights of the juvenile.” (Emphasis added.) Kent, 383 U.S.

at 556 (quoting Watkins v. United States, 343 F.2d 278, 282 (D.C. Cir. 1964)). Further,

“[i]f a decision on waiver is ‘critically important’ it is equally of ‘critical importance’ that

the material submitted to the judge—which is protected by the statute only against

‘indiscriminate’ inspection—be subjected, within reasonable limits having regard to the

theory of the Juvenile Court Act, to examination, criticism and refutation.” Kent, 383 U.S.

at 563.

¶ 35 The Kent Court declined to hold that the error was harmless or was cured by the district

court proceedings:

“The Government urges that any error committed by the Juvenile Court was cured by the

proceedings before the District Court. It is true that the District Court considered and

denied a motion to dismiss on the grounds of the invalidity of the waiver order of the

Juvenile Court, and that it considered and denied a motion that it should itself, as authorized

by statute, proceed in this case to ‘exercise the powers conferred upon the juvenile court.’

[Citation.] But we agree [with a court of appeals decision] that ‘the waiver question was

primarily and initially one for the Juvenile Court to decide and its failure to do so in a valid

manner cannot be said to be harmless error. It is the Juvenile Court, not the District Court,

which has the facilities, personnel and expertise for a proper determination of the waiver

issue.’ ” Kent, 383 U.S. at 563-64.

¶ 36 The form of the analyses in Kent and Price is akin to a structural error analysis. Structural

errors “affect the framework within which the trial proceeds, rather than mere errors in the trial

process itself.” People v. Moon, 2022 IL 125959, ¶ 29. “Put another way, these errors deprive

- 15 -
2022 IL App (2d) 200495

defendants of basic protections without which a criminal trial cannot reliably serve its function as

a vehicle for determination of guilt or innocence *** and no criminal punishment may be regarded

as fundamentally fair.” (Internal quotation marks omitted.) Moon, 2022 IL 125959, ¶ 29. In a case

involving structural error, prejudice to the defendant is treated as inherent to the error. See, e.g.,

People v. Gaines, 2020 IL 125165, ¶ 19 (in a case of structural error—where the trial mechanism

is unreliable—prejudice to the defendant is presumed).

¶ 37 Kent is closely on point. It addresses a statutory right to juvenile court proceedings, not a

constitutional one; nevertheless, it treats that statutory right as subject to due process requirements.

Further, the inadequacies of the hearing in Kent are matched here by the complete lack of a hearing.

And the conclusions in Kent and Price are essentially the same: there is no replacement for a

transfer hearing. Regardless of whether one describes the error here as structural error, we deem

that defendant was prejudiced by the absence of the safeguards associated with a transfer hearing.

¶ 38 In so concluding, we disagree with the State that People v. Wells, 2022 IL App (5th)

180458-U, shows that we may determine from the record that there was no prejudice—no

reasonable probability that defendant’s case, once transferred to juvenile court, would not simply

be retransferred to criminal court for sentencing.

¶ 39 Wells, like Price, concerned a defendant affected by the retroactivity of the January 2016

amendment to the automatic transfer provision. Wells, 2022 IL App (5th) 180458-U, ¶ 37. In Wells,

the defendant pleaded guilty to a murder he committed when he was 15 years old. Wells, 2022 IL

App (5th) 180458-U, ¶¶ 10-12. He was 20 years old on January 1, 2016, when the amendment

went into effect; he turned 21 on June 5, 2016. Wells, 2022 IL App (5th) 180458-U, ¶ 19. In August

2017, defense counsel, in response to Howard, moved for a transfer of the case to juvenile court,

and the trial court granted the motion. Wells, 2022 IL App (5th) 180458-U, ¶ 20. The State then

- 16 -
2022 IL App (2d) 200495

petitioned for the defendant’s discretionary transfer to criminal court. Wells, 2022 IL App (5th)

180458-U, ¶ 20. After the hearing, the court made findings consistent with those required for a

discretionary transfer—addressing, for instance, the defendant’s social history. Wells, 2022 IL App

(5th) 180458-U, ¶ 21. However, it also noted “that the defendant was 22 years of age, and thus no

advantages of treatment within the juvenile justice system existed.” Wells, 2022 IL App (5th)

180458-U, ¶ 21. This was because, under section 5-105(10) of the Act (705 ILCS 405/5-105(10)

(West 2016)), once a person turns 21, “the juvenile court no longer has statutory authority to

proceed against the defendant in juvenile court.” Wells, 2022 IL App (5th) 180458-U, ¶ 40. The

court further stated that it had considered and rejected applying extended juvenile jurisdiction.

Wells, 2022 IL App (5th) 180458-U, ¶ 21. It thus granted the State’s discretionary transfer motion.

Wells, 2022 IL App (5th) 180458-U, ¶ 21.

¶ 40 On appeal, the defendant argued first that his transfer to criminal court was improper

because the State “failed to pursue either a transfer from juvenile court to criminal court or

extended juvenile jurisdiction before the defendant turned 21.” Wells, 2022 IL App (5th) 180458-

U, ¶ 35. The Wells court rejected this claim. The court noted that, although the trial court did give

weight to the fact that the defendant was 22 when it granted the discretionary transfer, “the ***

actions taken by the trial court *** reflect a consideration of the same factors that the court would

have considered if the defendant or the State raised this concern between January 1, 2016, the

effective date of the amendment, and June 5, 2016, the defendant’s twenty-first birthday.” Wells,

2022 IL App (5th) 180458-U, ¶ 50. Thus, when the Wells court addressed defendant’s second

contention on appeal—that defense counsel was ineffective because he did not seek the

defendant’s transfer to juvenile court before he turned 21—the court cited its prior analysis to

- 17 -
2022 IL App (2d) 200495

conclude that the defendant suffered no prejudice from counsel’s omission. Wells, 2022 IL App

(5th) 180458-U, ¶ 65.

¶ 41 Notably, in reaching its conclusion on prejudice, the Wells court had before it the record

generated by a full discretionary transfer hearing. See Wells, 2022 IL App (5th) 180458-U, ¶ 65.

Here, in contrast, no discretionary transfer hearing took place. What evidence might have been

adduced at such a hearing is simply a matter of speculation. Thus, Wells is inapposite.

¶ 42 D. Remedy

¶ 43 Having concluded that defense counsel was ineffective in failing to seek a presentencing

transfer to juvenile court, we address the matter of remedy. Defendant asks that we “vacate his

sentence and give the State ten days from the date on which the sentence is vacated to file a petition

requesting a hearing under section 5-130[(1)(c)(ii)] of the [Act (705 ILCS 405/5-130(1)(c)(ii)

(West 2016)].” He asks that, “[i]f the [trial] court finds [that he] is not subject to adult sentencing

this Court should direct the trial court to discharge the proceedings against him.”

¶ 44 Subsection (1)(c)(ii) of section 5-130, the automatic transfer provision, is not directly

applicable to the circumstances here. Section 5-130 (1)(c)(ii) provides that, if a defendant who was

transferred according to section 5-130 is found to have committed an offense that was not subject

to automatic transfer, that fact

“shall not invalidate the verdict or the prosecution of the minor under the criminal laws of

the State; however, unless the State requests a hearing for the purpose of sentencing the

minor under Chapter V of the Unified Code of Corrections [(730 ILCS 5/ch. V (West

2016))], the Court must proceed under [the relevant juvenile sentencing provisions of the

Act].” 705 ILCS 405/5-130(1)(c)(ii) (West 2016).

- 18 -
2022 IL App (2d) 200495

The Price court held that section 5-130(1)(c)(ii) provides a template for presentencing proceedings

to determine whether a defendant who no longer meets the criteria for automatic transfer should

be sentenced under the Unified Code of Corrections (Code) or the Act:

“This precise situation is not expressly contemplated by the [Act], but we believe

that subsection (1)(c)(ii) of the automatic transfer statute, although it does not specifically

apply here, reflects the legislature’s understanding of what will happen when a defendant

who was properly charged and tried as an adult no longer meets the requirements for

automatic transfer. That section provides for the defendant to be sentenced as a juvenile

unless, within 10 days, the State files a written motion requesting a hearing for the trial

court judge to decide whether the defendant should be sentenced as an adult under the

[Code]. At such a hearing, the court is directed to consider many of the same factors a court

addresses when ruling on a motion for presumptive or discretionary transfer ***.” Price,

2018 IL App (1st) 161202, ¶ 28.

¶ 45 We deem that this procedure is equally applicable to defendant. Following the outline of

Price, we vacate defendant’s sentence and remand the cause to the trial court for the State to have

the option to seek defendant’s sentencing as an adult under the Code. See Price, 2018 IL App (1st)

161202, ¶ 31.

¶ 46 III. CONCLUSION

¶ 47 For the reasons set out above, we vacate the sentence imposed by the circuit court of

Winnebago County and remand the cause with directions to give the State 10 days to file—if it so

chooses—a petition requesting a hearing based on section 5-130(1)(c)(ii) of the Act to decide

whether defendant should be sentenced as a juvenile under the Act or as an adult under the Code.

See id.

- 19 -
2022 IL App (2d) 200495

¶ 48 Judgment vacated.

¶ 49 Cause remanded with directions.

- 20 -
2022 IL App (2d) 200495

People v. Carwell, 2022 IL App (2d) 200495

Decision Under Review: Appeal from the Circuit Court of Winnebago County, No. 16-CF-
3032; the Hon. Randy Wilt, Judge, presiding.

Attorneys James E. Chadd, Douglas R. Hoff, and Sarah Curry, of State
for Appellate Defender’s Office, of Chicago, for appellant.
Appellant:

Attorneys J. Hanley, State’s Attorney, of Rockford (Patrick Delfino, Edward
for R. Psenicka, and Steven A. Rodgers, of State’s Attorneys
Appellee: Appellate Prosecutor’s Office, of counsel), for the People.

- 21 -