sexual assault arising from acts alleging that he placed his penis in his then six year old cousins the dyna and mouth when the two were living together with their grandparents amount prospect illinois the defendant according to the record before the school were signed a written admission to those charges stating that he committed those acts when he was fourteen years of age the indictment allege that the actions took place over the course of him being both fourteen and fifteen years old at the time that he committed these offenses there if i arrested at the time he would have been subject to a discretionary chance for hearing under the provisions of the juvenile court act judge mandel swart the judge presided over this matter dismissed the charges against the defendant and i'm here today asking that that decision be reversed by this court in her ruling court not first district but said binding on her as a child court judge the think compel that result it's a people's position that that decision was wrong as a matter of law the issue precisely before th attaining the age of twenty one or as or is subject to an adult criminal prosecution in the state of illinois it's the people's position that application of well established rules of statutory construction will also consideration of commonsense principles dictate that the answer to this question is that certainly a prosecution of criminal prosecution for this type of  was what are they saying that they want to prosecute him when he's twenty two years of age but under the juvenile court or that you don't prosecute him at all there are saying that either of the if by they we're talking about my opponent they're saying that the amendment should have been on the inside and should have been amended to only cover activity that occurred when he was fifteen years of age and therefore subject to an automatic transfer  where there is no prosecution at all there is no disagreement between the parties as to one thing which is that there cannot be a juvenile prosecution in this case and that decision which has that case on the basis of lacking subject matter and personal jurisdiction was found to be erroneous by the supreme court the case was remanded an ultimate it was decided by the second district that the court while having personal  jurisdiction had no authority to treat the defendant as a juvenile under the juvenile court act we agree with that the term a nation that does not answer the question though that squarely posts in this case that has never been properly squarely pose be it the second district or the fourth district both of which have had cases dealing with the subject of whether or not as a matter of as law in illinois a criminal prosecution can be brought i  done in this case which to seek an adult criminal prosecution they never sought an indictment and there was some discretion in the original will be sought appellate court decision as to whether or not the language of the juvenile court act simply section five one twenty precluded such a criminal prosecution and the problem is that the court the second district court in that original will be cited the situation basically issued an advisory opinion as to what could or could not be which was clearly not within its purview as an appellate court and then when the state went before the illinois supreme court asking essential for the same thing give us some guidance as to whether or not we can bring a criminal prosecution the supreme court correctly said that's not the function of a supreme court to tell you what you may or may not be able to do it and it's based on the fact that there was never action in the first instance where the state never indicted luis are here we have a case that has been treated as an adult criminal prosecution an indictment was sought a true bill was returned the case was presented before judge mantles for it and she made a decision but this case that these charges could not resulted in the criminal prosecution in this court looks at section five hundred twenty because that's what the entire argument hinges on the notion that somehow the juvenile court act itself independently operates to preclude and it says criminal prosecution the court cannot arrive at that conclusion based on straightforward rules of satu prohibits a criminal prosecution from being brought against an individual who's under thirteen years old the legislature has specifically made a decision that individuals who have been fed the live eight inch of thirteen may not be criminally prosecuted so that's the first part of my answer is that that indictment on its face was defective going beyond that there was another problem that also occurred in that case that was machinations that were set in place by the state in a row initially charging him when he was entitled to that and then substituting a later incitement to get around that problem that there had been a declaration of due process essentially and that was traveling to the court and rightfully so the same thing happened in ballmer you've got a defendant this is the first district case you've got a defendant who is nineteen years old at the time that he's apprehends it he too was charged with having committed criminal acts when he was twelve years old so again we have a facially defective indictment and he too is not given the discretionary transfer hearing to which he is entitled  that the state has no obligation to do that in ten charges has the authority to decide in what manner and when to charge the defendant's confession in this case coincides with his age of fourteen at the time that these both these acts were committed so this is one of those situations where it's a family related offense that the incitement alleges occurred over the course of a year your honor the victim was only six years old  time i am not the person who personally was involved in the charging decisions that were made here but based on the circumstances surrounding this case the state has the ability to bring an indictment the cover is an expansive period of time to ensure that the defendant will be had to hold accountable for his criminal activities i mean judge melville short that would have been her preference if again it's our position that that was that that's not required by law and that our refusal to make that amendment in no way after is the fundamental question that has to be answered by this court which is to interpret section five hundred twenty of the acts of section  would have extended out the twenty one year old period but i don't think that you can comment after the twenty one and institute proceedings under the each ha under the other provisions in the juvenile court act i don't think that that could have saved  day or that that was available so essentially we have a situation here we are under the statute if you look again  language if you substitute the definition of minor it's clear that the legislature was referencing into which was age at the time of the charge and this is i will i don't i referenced federal cases from other states as well as the federal act i am readily admitting the language just different this is an illinois a matter of interpreting the illinois statute but to the extent that there seems to be some sort of festering concern as to the fairness component of this and the fact that here you've got an individual who had been apprehended at the time that he committed this offense would have been treated a entire body of case law stands for the proposition that that in itself is not does not constitute a due process violation and that mexico courts have found that the time of the charge is what controls you've got pennsylvania and the way that they interpreted those statutes and looks at the words is is very is is a model to be emulated and i really strongly supports the people's position that if you're going to treat the word minor as the legislature has told you to treat it as meaning a person under the age of twenty one subject to the act that there can be no doubt that a criminal prosecution in a case such as this properly brought by an indictment with your honour's may please court the record my name is jim case and i want to represent david five years in this case the issue in this case was it proper for the circuit court to dismiss the indictment because it covered a single period of time a time from january first two thousand and three until january first of two thousand and four when during most of this time over nine months of it the defendant in this case was fourteen years old and isn't that charging the  not applied to somebody who's twenty one years or older why would you prosecute somebody under the juvenile that was twenty one or older might that some my position that you should prosecute juveniles what happens to an individual who does adult is charged but they were a juvenile under our law there is no they can't bring it under criminal under the criminal statutes based on five ish one twenty based on i guess one twenty where is i guess that's my question that where's the preclusion the word exclusive jurisdiction the section five one twenty gives exclusive jurisdiction to people who are charged with offenses as us that it states no minor who was under the and don't under seventeen years of age at the time of the alleged offense may be prosecuted under the criminal laws of this state right so no minor no person under the age of twenty one years no person who was a minor at the time of the no person who was a minor not i would you add the words under the age of seventeen that just say no minor no person who was a minor at the time of the offense i'm trying to ask you to under excluded jurisdiction why would it be under why wouldn't it be under five thirty five ish one thirty years well that's minor is a defined term right that's correct ok of minors a person under the age of twenty one years prosecuted right right dead so mr five s is not a minor he was maybe under seventeen years of age at the time of the alleged offense but now he's no longer a minor he's twenty three years old  en my argument is it goes to the time of the time of the offense and if you look at the states other states that have interpreted this type of thing in the federal and the federal statute which is the s states specifically about the time of the offense or the time of charging and there's all the states out there you can look at the statutes from the bad in louisiana that have statute that specifically have shorten the statute of limitations for certain crimes for twenty one years of age now it only happens in a couple cases it's only the cases that we have extended jurist extended statute of limitations which is the sexual as murder cases where we have an issue about thirteen and thirteen although with the new statute that we have here under the juvenile act we're now it's eighteen years old we have actual cases where a person is charged under the juvenile act and because it ha t extended the statue of limitations other crimes made become an issue with this type of thing but i think you know as justice freiman sudden to dissent i think this is a relatively simple case a simple you know where of the alleged offense then you can take that interpretation but you have to disregard that sentence which it says you can only be prosecuted under criminal laws of the state of illinois unless it meets the exceptions there  doesn't surprise you that that's right well this is happened in other jurisdictions your specific example about somebody where murders happened many years later and you know there'd there are ways to address those situations and that in the supreme court of montana they had that exact same thing twenty eight years old under this situation they had a little different juvenile call but they they passed a couple laws in between where they specifically gave the criminal courts the ability to prosecute someone in this situation they did however limit the sentence for those thirteen and fourteen year olds or fifteen year olds at  and they said that they could receive no more of a sentence than they would have resends if they were sentenced as a juvenile in that case and that was actually the state versus fresh in the hand and supreme court of my piano in two thousand and twelve case so both situations the state is on notice they've been on notice since in ray lewis s or our that this is an issue the state's been on notice the the proper place is t this regard the rich case you bomb case and in a rape lewis case in order to reach the conclusion that the state can bring criminal charges against a fourteen year old now there is no disagreement that the state could amend the stars we've said it i said to the state prosecutor prosecutor at the trial level it's been admitted in the briefs the judge said the judge the trial judge in this case as i see a simple solution to this why don't you just amend it and charge him as a fifteen year old and your honor yes you know why didn't they do it well i think the reason they didn't do it is because they have no evidence that anything occurred when he was fifteen years old they don't and you know when they used just kind prng which is the disadvantage to the defendant that they'd that includes both the fourteen and fifteen year olds you know that's how they got into the full sit into the criminal courts to begin with by charging him as a fifteen year old and rich it's the same case you know rich pay said the f it's not authorize discretionary transfer however strictly strict construction of the act reflected that rich was only fourteen years old or younger when he allegedly committed the offenses proceedings were only proper under the act and this is the indictment when he was twenty one years old rich quote said proceedings are only proper under the act in bomb it did and the trial court did not during granting to fund its motion to dismiss the charges since the state was on willing to accept the transfer of the charges to juvenile court it doesn't say it if it doesn't include the words and who is charged and it doesn't imply if you wouldn't have anything and limitation here otherwise he's not he's not a minor factually analogous rich he was twenty when he was charged for crimes between forty twelve and fourteen so he's not even subject to the automatic transfer as a fifteen year old mom he's nineteen when he's charged so you don't have a pattern here nothing quite fits squarely i don't have a an adult charged in a criminal court for acts committed as a minor under the age of seventeen you do when rich is twenty one years old he was rich he was twenty when he was first started and the real indictment was twenty one and the court ruled on that really indictment which was he was twenty one and they specifically addressed that so he was twenty one i understand that the court went on and talked about the fact that he was twenty and they could have brought it in juvenile court and got extended jurisdiction that rich also talks about the fact that these are charges for alleged offenses between the age of twelve and fourteen he's not even subject to one thirty at that time right because section one hundred  five days from thirty has been fifteen year old and that's exactly what we have in this case this is for indictment on fourteen and fifteen year old but this is a defect of a diet and because they're using the fourteen year olds we have never argued that they can't bring it as a fifteen year old we argued as a fourteen year old and the state could could have amended to could have reunited him as a fifteen year old and we wouldn't be here right now but they've used the fourteen year olds and that's no different than the rich case he was twenty when he was twenty one years of age and the rich case study cited i mean but in ray lewis case in june of two thousand cited paragraph thirty of the rich case however strict construction of the acts as you now act reflected dead rich was only fourteen years ago or younger when he allegedly committed the offense is proceedings were the twenty to twenty two or twenty three is not cover it there's a statute of if there is an implied special limitations with this and it only and as i said this only happens in relatively few cases and it has not about are we going to construe this statute for absurd results because the state has argued that it's absurd that this individual can't be charged as a fourteen and it's our position dead it's even immoral absurd hearing to extend it to criminal courts so the absurd result there's as a fourteen year old the jurisdiction with the juvenile under the juvenile court would have it would have expired at twenty one seven years seven years now now he's facing a minimum of twelve years to sixty years in the penitentiary that's an absurd yourself said so you're arguing that the due process implications are because of the corrective  sort of measures that would be taken it's the same offense but it's the difference in the corrective measures that are taken in juvenile court versus a criminal court right because under the juvenile act he's afforded been and i hope it is to be corrected well rectified and if you look at dusk a court case that the state cited that was a forty year old individual that was brought into juvenile court and he was entitled to his hearing in order to get into criminal courts separate statute there was no issue regard to transfer to criminal court there they are you did that case procedurally whether or not he received everything he should've got in juvenile court before  moving but that's there's a forty year old that's you know that's the example that you know you're talking about a thirteen or fourteen year old their mentality is not the level of a twenty three year old and that's why we have the juvenile code so because they're not charged until much later on they should they should be penalized or the legislator has to address it and do something about it because the issue is this issue will come but it will take you less what the defendant has told you is that the juvenile court at five one twenty trumps the extensive terms limitations th legislature has decided are in place for sex crimes and that it essentially immunizes individuals from prosecution at all that is the problem the underlying problem with what the court did not only does that just fly squarely in the face of common sense but common sense is reflected in the illinois legislature is determination under seven twenty five one five a that any person who commits a crime in the state of illinois is subject to prosecution short of there being an expressed indications to the contrary as there is in the infancy loss there is no way to reconcile that statement of legislative intent  that people are to be held accountable for crimes with the interpretation that the defendant is trying to draw from section five hundred twenty of the juvenile record act which let's remember is a statutory creature that was designed illinois was at the forefront of this movement to treat juveniles those under twenty one and those under either seventeen or fifteen depending on where they fall based on the crime a thief committed to give them different treatment afforded them special protection and benefits that are not available to adults david five ish was a twenty three year old man at the time that he was charged he was not a minor he was not subject to any of the protections of the juvenile court act in under  illinois law as it stands in the state and always had he is subject to an adult criminal prosecution just like any other person charged with a crime in this state we are not asking you to find t necessarily find that you disagree with any of the decisions of either the seconds or the fourth district you can reconcile easily the facts of this case and contrast them with the facts of those cases were and where indictments were defective where the state deprive the defendants of a discretionary transfer hearing which they were entitled to which david five just never could have perceived under the facts of this case and we asked at the to reverse the trial courts to sissel of the indictment in th that would help clarify and there's always legislation that can help clarify it's the people's position the legislation is clear on its face and again if you take that definition of the word minor and you insert it into that statute there's no way to come out of the position that he's taken that the trial court felt was the law as articulated by the second