People v. Omar M. (In re Omar M.)

• Decision Date: 31 January 2014
• Docket Number: No. 1–10–0866.,1–10–0866.
• Parties: In re OMAR M., a Minor (The People of the State of Illinois, Plaintiff–Appellee, v. Omar M., Respondent–Appellant).
• Court: United States Appellate Court of Illinois

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In re OMAR M., a Minor (The People of the State of Illinois, Plaintiff–Appellee,
v.
Omar M., Respondent–Appellant).

No. 1–10–0866.

Appellate Court of Illinois, First District, Fifth Division.

Opinion filed Jan. 31, 2014.
Modified Upon Denial of Rehearing Aug. 1, 2014.

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Michael J. Pelletier, Alan D. Goldberg, Heidi Linn Lambros, State Appellate Defender's Office, for Appellant.

Anita M. Alvarez, State's Attorney (Alan J. Spellberg, Annette Collins, Assistant State's Attorneys, of counsel), for the People.

OPINION

Justice PALMER delivered the judgment of the court, with opinion.

¶ 1 Respondent Omar M. was prosecuted, convicted, and sentenced under section 5–810 of the Juvenile Court Act of 1987 (705 ILCS 405/ 5–810 (West 2008)), the extended jurisdiction juvenile (EJJ) prosecutions statute, for first-degree murder, receiving the maximum juvenile sentence of incarceration until his twenty-first birthday and a 20–year stayed adult sentence. On appeal, respondent claimed: (1) that the State's proffer of evidence for the EJJ prosecution designation was “ untrue” because

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two of the State's four eyewitnesses failed to appear at trial; (2) that the EJJ prosecution statute violates a juvenile respondent's right to due process because the EJJ prosecution designation is decided by a judge by a preponderance of the evidence instead of by a jury beyond a reasonable doubt; and (3) that the EJJ prosecution statute is unconstitutionally vague. We did not find respondent's arguments persuasive, and we affirmed. In re Omar M., 2012 IL App (1st) 100866, ¶ 2, 363 Ill.Dec. 77, 974 N.E.2d 874 (Omar M. I ).

¶ 2 The supreme court subsequently entered a supervisory order directing us to vacate our judgment and reconsider in light of In re M.I., 2013 IL 113776, 370 Ill.Dec. 785, 989 N.E.2d 173, to determine whether a different result is warranted. In re Omar M., 378 Ill.Dec. 737, 4 N.E.3d 1109 (Ill.2013). After considering the supreme court's decision in M.I., we continue to affirm. However, we now find that Omar M. did not have standing to raise the claim that the EJJ is unconstitutionally vague.

¶ 3 ANALYSIS

¶ 4 In M.I., the supreme court considered three issues concerning EJJ prosecutions: (1) whether the statutory requirement to hold a hearing within 60 days of the filing of an EJJ motion is mandatory, and the failure to hold such a hearing renders the respondent's adult sentence void; (2) whether the EJJ statute is unconstitutionally vague because it does not specify what conduct results in the revocation of the stay on the adult sentence; and (3) whether the EJJ statute violates the holding in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), that the United States Constitution guarantees that all sentencing enhancements be proven beyond a reasonable doubt. M.I., 2013 IL 113776, ¶ 1, 370 Ill.Dec. 785, 989 N.E.2d 173. Since the second and third issues were also raised in the instant case, we discuss the supreme court's treatment of them here and consider whether they change the outcome in the instant case.

¶ 5 I. Vagueness Challenge and Standing¹

¶ 6 As to the issue of standing to raise the vagueness challenge to the “conditions” provision of the EJJ statute, we find that M.I. and Omar M. are similarly situated. While there are differences in the procedural posture of the two cases, we find that these differences are not material to this analysis.

¶ 7 In M.I., 2013 IL 113776, ¶ 36, 370 Ill.Dec. 785, 989 N.E.2d 173, the supreme court determined that the respondent lacked standing to challenge the constitutionality of the “conditions” provision of the EJJ based on vagueness. The EJJ statute allows for two ways in which the stay of the adult sentence may be revoked: when the convicted minor “ ‘violate[s] the conditions of his or her sentence, or is alleged to have committed a new offense.’ ” (Emphasis omitted.) Id. (quoting 705 ILCS 405/5–810(6) (West 2010)). The State had filed a petition to revoke the stay of M.I.'s adult sentence based on his commission of a new felony offense. However, M.I.'s challenge was based on his claim that the statutory provision allowing revocation for violating the “conditions” of his sentence was unconstitutionally vague. Id.

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¶ 8 Originally, M.I.'s conviction and sentence were affirmed by this court in In re M.I., 2011 IL App (1st) 100865, 357 Ill.Dec. 709, 964 N.E.2d 72. Subsequently, the State filed a petition to revoke the stay of the adult sentence based on a new conviction, the “new offense” provision of the EJJ. Ultimately, our supreme court held that M.I. did not have standing to contest the vagueness of the “conditions” provision as it did not affect him. M.I., 2013 IL 113776, ¶ 36, 370 Ill.Dec. 785, 989 N.E.2d 173. Specifically, the court held:

“ ‘The purpose of the doctrine of standing is to ensure that courts are deciding actual, specific controversies, and not abstract questions or moot issues.’ In re Marriage of Rodriguez, 131 Ill.2d 273, 279–80 [137 Ill.Dec. 78, 545 N.E.2d 731] (1989). In order to have standing to bring a constitutional challenge, a person must show himself to be within the class aggrieved by the alleged unconstitutionality. [Citation.] ‘The general rule is that courts will not consider the validity of a statutory provision unless the person challenging the provision is directly affected by it or the unconstitutional feature is so pervasive as to render the entire statute invalid.’ [People v. ] Morgan, 203 Ill.2d [470] at 482 [272 Ill.Dec. 160, 786 N.E.2d 994 (2003) ]; People v. Palkes, 52 Ill.2d 472, 480 [288 N.E.2d 469] (1972). * * * Rather, a person must be directly or materially affected by the attacked provision and must be in immediate danger of sustaining a direct injury as a result of enforcement of the challenged statute. People v. Rogers, 133 Ill.2d 1, 8–9 [139 Ill.Dec. 714, 549 N.E.2d 226] (1989). * * *

* * *

‘A party may not raise a constitutional challenge to a provision of a statute that does not affect him or her.’ In re Veronica C., 239 Ill.2d 134, 147 [346 Ill.Dec. 1, 940 N.E.2d 1] (2010) ; [citations].” M.I., 2013 IL 113776, ¶¶ 32–34, 370 Ill.Dec. 785, 989 N.E.2d 173.

¶ 9 Finally as to M.I.'s challenge the court held:

“Even if the filing of the petition to revoke the stay on the adult sentence conferred standing on respondent to challenge the constitutional validity of the revocation provision of the EJJ statute, respondent's constitutional objection must still pertain to the part of the statute that affects him. ” (Emphasis in original.) Id. ¶ 36.

¶ 10 In contrast to the procedural posture of M.I., Omar M. was given a 20–year stayed sentence under the EJJ and contested its constitutionality in his direct appeal prior to the filing of any petition to revoke. In Omar M. I, 2012 IL App (1st) 100866, ¶ 74, 363 Ill.Dec. 77, 974 N.E.2d 874, this court found that Omar M. had standing to raise his vagueness claim even though no action had been taken or may never be taken to revoke his stay because “respondent will live in fear that he may unknowingly revoke the stay through his conduct, and thus cause the court to impose his 20–year adult sentence.” In light of M.I., we now find that reasoning unpersuasive.

¶ 11 Regardless of the different procedural postures they were in, in regard to the “conditions” provision M.I. and Omar M. were similarly situated. At the time the petition to revoke was filed against M.I., that respondent was still subject to the revocation provisions of the EJJ. Even though the petition was based on the “new offense” provision, a petition based on violation of the “conditions” of that respondent's sentence could be filed at any time during his minority. Thus, arguably M.I. would “live in fear that he may unknowingly revoke the stay through his conduct”

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just as Omar M. However, the fact that M.I. could be living in fear of unknowingly revoking his stay was not enough for our supreme court to find that he had standing to raise a vagueness claim. Such a vague fear was not enough to satisfy the standing requirement elucidated in M.I. that the person must be directly or materially affected by the attacked provision and must be in immediate danger of sustaining a direct injury as a result of enforcement of the challenged statute. See M.I., 2013 IL 113776, ¶ 32, 370 Ill.Dec. 785, 989 N.E.2d 173.

¶ 12 Anticipating the argument that once M.I.'s petition to revoke for a new offense was granted the stay would be vacated and there would be nothing left to fear regarding the “conditions” provision, we find that argument to ignore the procedural posture of M.I. As the supreme court noted in M.I., the petition to revoke the stay of the adult sentence itself had been stayed. See id. ¶ 9. As a result, at the time M.I. made his vagueness claim he was still at risk of being violated under the “conditions” provision and yet he did not have standing to make that claim.

¶ 13 We acknowledge that in keeping with the above-cited principles, the supreme court...