People v. Brazee

• Decision Date: 21 August 2002
• Docket Number: No. 2-01-0332.,2-01-0332.
• Citation: 775 N.E.2d 652,333 Ill. App.3d 43,266 Ill.Dec. 812
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Kenneth E. BRAZEE, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

775 N.E.2d 652

333 Ill. App.3d 43

266 Ill.Dec. 812

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Kenneth E. BRAZEE, Defendant-Appellant.

No. 2-01-0332.

Appellate Court of Illinois, Second District.

August 21, 2002.

G. Joseph Weller, Deputy Defender, and Kathleen J. Hamill (Court-appointed), Office of the State Appellate Defender, Elgin, for Kenneth E. Brazee.

Paul A. Logli, Winnebago County State's Attorney, Rockford, Martin P. Moltz, Deputy Director, State's Attorneys Appellate Prosecutor, Elgin, Mary Ellen Dienes, Des Plaines, for the People.

Dwayne Douglas, David S. Weinstein, Weinstein & Douglas, P.C., Waukegan, for William Vorpagel.

Michael T. Roumell, Peter A. Steinmeyer, Michael P. Butler, Epstein, Becker & Green, P.C., Chicago, for Maxell Corporation of America.

Justice CALLUM delivered the opinion of the court:

Defendant, Kenneth E. Brazee, pleaded guilty to criminal sexual assault (720 ILCS 5/12-13(a)(1) (West 1992)). In exchange for the guilty plea, the State nol-prossed an additional charge of aggravated criminal sexual assault (720 ILCS 5/12-14(b)(1) (West 1992)). There was no agreement about defendant's sentence, however, and the trial court imposed an 11-year prison term. In an earlier appeal, People v. Brazee, 316 Ill.App.3d 1230, 250 Ill.Dec. 430, 738 N.E.2d 646 (2000) (Brazee I),

we vacated the judgment and remanded the cause with directions that the trial court sentence defendant to time served under the Juvenile Court Act of 1987(Act) (705 ILCS 405/1-1 et seq. (West 1996)). On remand, the court sentenced defendant accordingly, but ruled that defendant stood convicted of a criminal offense even though he was sentenced as a juvenile under the Act. Defendant challenges that ruling in this appeal. We conclude that the judgment must be modified to reflect that defendant was adjudicated a delinquent minor and that the conviction must be vacated.

Defendant was born on July 4, 1977, and he was originally charged by complaint late in September 1998 when he was 21 years old. An indictment was returned about three weeks later charging defendant as follows:

"The Grand Jury Charges:

COUNT I

That between the 4th day of July, 1992 and the 30th day of November, 1995, * * * [defendant] committed the offense of AGGRAVATED CRIMINAL SEXUAL ASSAULT, in that the said defendant, who was 17 years of age or older, knowingly committed an act of sexual penetration with [D.K.], who was under 13 years of age when the act was committed, in that the said defendant placed his penis in the anus of [D.K.], in violation of 720 ILCS 5/12-14(b)(1). Class X

COUNT II

That between the 4th day of July, 1992, and the 30th day of November 1995, * * * [defendant] committed the offense of CRIMINAL SEXUAL ASSAULT in that the said defendant knowingly committed an act of sexual penetration with [D.K.] by use of force, in that said defendant placed his penis in the anus of [D.K.], in violation of 720 ILCS 5/12-13(a)(1). Class 1"

As noted, defendant pleaded guilty to criminal sexual assault and was sentenced to an 11-year prison term. Defendant did not move to withdraw his plea, but he did move for reconsideration of his sentence, arguing that it was excessive in light of his background and the nature and circumstances of the offense. The trial court denied the motion. In his first appeal, defendant argued that he should have been sentenced as a juvenile rather than as an adult. Although no formal factual basis was presented when defendant pleaded guilty, we examined the entire record to determine the factual basis underlying the plea, and we concluded that defendant was under the age of 17 at the time of the offense. Thus, pursuant to section 5-4(6)(c)(ii) of the Act (705 ILCS 405/5-4(6)(a) (West 1996) (repealed by Pub. Act 90-590, eff. January 1, 1999) (now codified, as amended, at 705 ILCS 405/5-130(1)(c)(ii) (West 2000))), he should not have been sentenced as an adult.

On remand, a dispute arose about the character of the judgment. The State argued that, even though defendant was sentenced as a juvenile, the judgment should remain a criminal conviction. Defendant contended, however, that the conviction should be vacated and the court should adjudicate him a delinquent minor. In sentencing defendant to time served under the Act, the trial court ruled that "[t]he judgment of conviction as an adult on this class one felony remains."

Defendant filed a timely notice of appeal on March 6, 2001, and on March 17, 2001, the office of the State Appellate Defender was appointed to represent defendant. However, in the intervening period, on March 12, 2001, assistant appellate defender Kathleen J. Hamill filed an emergency motion in this court asking the court to clarify the mandate in Brazee I with respect to whether the trial court should have entered a criminal conviction or an adjudication of delinquency. Defendant's brief in this appeal indicates that appellate counsel filed the motion at the behest of the trial court. The motion was filed under the docket number for Brazee I (No. 2-99-0288) and made no mention of the fact that defendant had filed a notice of appeal from the judgment on remand. Because the office of the State Appellate Defender had not yet been appointed, however, it is unclear whether Hamill was aware of the present appeal. On June 1, 2001, another panel of this court entered the following order:

"The court has considered the emergency motion for clarification of mandate and the responses thereto, and it is hereby orderd [sic] that the original opinion entered herein stands and that the judgment of conviction for an adult felony stands. 705 ILCS 405/5-130(c)(ii)."

Turning to the merits, a "delinquent minor" is defined in the Act as "any minor who prior to his 17th birthday has violated or attempted to violate * * * any federal or state law or municipal ordinance." 705 ILCS 405/5-3(1) (West 1996) (repealed by Pub. Act 90-590, eff. January 1, 1999) (now codified, as amended, at 705 ILCS 405/5-105(3) (West 2000)). Section 5-4(1) of the Act provides, in pertinent part, "[e]xcept as provided in this Section, no minor who was under 17 years of age at the time of the alleged offense may be prosecuted under the criminal laws of this State." 705 ILCS 405/5-4(1) (West 1996) (repealed by Pub. Act 90-590, eff. January 1, 1999) (now codified, as amended, at 705 ILCS 405/5-120 (West 2000)). In the present case, the applicable exception permitting criminal prosecution appears in section 5-4(6)(a) of the Act, which provides that the definition of "delinquent minor" does not apply to a minor who was at least 15 years old at the time of an offense and who is charged with any of various enumerated offenses including aggravated criminal sexual assault. 705 ILCS 405/5-4(6)(a) (West 1996) (repealed by Pub. Act 90-590, eff. January 1, 1999) (now codified, as amended, at 705 ILCS 405/5-130(1)(a) (West 2000)). Section 5-4(6)(a) mandates the criminal prosecution of the enumerated offenses and "all other charges arising out of the same incident." 705 ILCS 405/5-4(6)(a) (West 1996) (repealed by Pub. Act 90-590, eff. January 1, 1999) (now codified, as amended, at 705 ILCS 405/5-130(1)(a) (West 2000)).

This appeal concerns the impact of section 5-4(6)(c)(ii), which provides, in pertinent part, "[i]f after trial or plea the minor is only convicted of an offense not covered by paragraph (a) of this subsection (6), the conviction 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, the Court must proceed under Sections 5-22 and 5-23 of this Act." 705 ILCS 405/5-4(6)(c)(ii) (West 1996) (repealed by Pub. Act 90-590, eff. January 1, 1999) (now codified, as amended, at 705 ILCS 405/5-130(1)(c)(ii) (West 2000)). Sections 5-22 and 5-23 govern dispositions in delinquency proceedings under the Act. Defendant contends that, when the court enters a disposition under the Act pursuant to section 5-4(6)(c)(ii), the resultant judgment constitutes an adjudication of delinquency under the Act. The State maintains that section 5-4(6)(c)(ii) pertains only to sentencing, and the minor stands convicted of a criminal offense. Defendant alternatively argues that, if the State's interpretation is correct, the statute is unconstitutional.

The cardinal rule of statutory construction is to ascertain and give effect to the true intent of the legislature, mindful of the presumption that the legislature did not intend to produce an absurd or unjust result. In re D.D., 196 Ill.2d 405, 418-19, 256 Ill.Dec. 870, 752 N.E.2d 1112 (2001). The language of a statute is the most reliable indicator of legislative intent, and when the language is plain and unambiguous, courts may not read in exceptions, limitations, or other conditions. In re D.D., 196 Ill.2d at 419, 256 Ill.Dec. 870, 752 N.E.2d 1112. However, when the meaning of the enactment cannot be ascertained from the language, a court may resort to aids for construction. In re D.D., 196 Ill.2d at 419, 256 Ill.Dec. 870, 752 N.E.2d 1112.

Section 5-4(6)(c)(ii) requires the court to enter a disposition under the Act, but does not specifically address whether the resultant judgment stands as a criminal conviction or an adjudication of delinquency. By providing that a conviction of an offense not covered by section 5-4(6)(a) "shall not invalidate the verdict or the prosecution of the minor under the criminal laws of the State" (705 ILCS 405/5-4(6)(c)(ii) (West 1996) (repealed by Pub. Act 90-590, eff. January 1, 1999) (now codified, as amended, at 705 ILCS 405/5-130(1)(c)(ii) (West 2000))), the General Assembly might have intended to maintain the criminal character of the proceeding. If so, a criminal conviction should enter. On the other hand, another reasonable interpretation of this language is that it was simply designed to...