there jones was convicted after a jury trial of the last one felony of aggravated robbery he was sentenced to an extended term of twenty four years imprisonment nine years beyond the ordinary maximum range for a class one felony and the extended term was based on the state's assertion that this defendant had a prior juvenile adjudication for residential burglary first time burglary the defendant when he was confronted with this allegation denied that his adjudication included the president over the fact that the education was never played by the state in writing and the fact was never submitted to the jury to be determined by them by proof beyond a reasonable doubt and other than the pre sentence report in this case there were no documents presented to the trial judge to establish the actual nature of the defendant's underlying  dication so what we have before the court this morning is an issue of statutory construction which is whether under illinois law a juvenile of juda cation qualifies as any fact other than the fact of a now now which at the outset with this was not raised in the trial court was raised in the appellate court it's raised in this court but this is an issue that if it isn't a pretty violation this  range double the ordinary sentencing range was his prior adjudication so if it's something that the state needed to plead in proof and if the record does not establish that fact then it did prejudice him there was no other basis for giving him an extended from both the state and the appellate court in this case addressed a different question that isn't really we for the court today and that question is whether the federal constitution bars any juvenile adjudications from being used to impose an enhanced sentence than an adult offender the u s supreme court has not decided that issue the u s supreme court also has not identified what a conviction is that's something for a state court to determine or the federal legislature the congress that in fact with respect to this federal issue i would no california which also says that an adjudication can be used that there is no federal constitutional bar that also equates juvenile g cations with convictions in this case the legislature when it passed one eleven three c the it was doing it implementing a friend it didn't say in this legislation other than the fact of a prior conviction and a prior duty cation any fact that is used in the hands of defendant sentence must be p unproven to the jury it did not exclude juvenile adjudications this court in particular has never construed conviction unless there is express language in the statute at issue that you equate to most notable example is the in the sex offender registration act the legislature specifically sentence and term statute in people detail in particular this court found that a person convicted of a felony did not include a person adjudicated for a felony as he delinquent and therefore he could not be subject to escape allegation that the offense was exceptionally brooklyn heinous and in that case this court determined that no no rational jury could have determined that this is not exceptionally brutal and heinous in this case though essentially there were several petitions alleging various offenses including assault from a damaged property burglary and residential burglary and that the defendant  adjudicated delinquent on these petitions that's all we know not whether he was specifically educated for residential and this is a situation again where the defendant specifically disputed that he had a residential burglary i think in this respect that's actually even more compelling than what happened in shepherd versus united states and shepherd versus united states that offended that even actually dispute that he had a prior then he had pled guilty to burglaries that were generic burglaries he simply said the record doesn't show what these burglaries were and i never admitted that these were generic burglaries in fact the court of appeals in their case thought that they were just engaging in an exercise of make believe because the defendant never seriously disputed that his prior burglaries were generic burglaries in this case we have a defendant who has this effectively disputed that there was an adjudication for residents of burglary this is an issue where the state has the burden and the judge has the obligation to find that the aggravating factor exists because it does it increases the sentence from four to fifteen years to fifteen to thirty years it doubles his sentence effectively becomes an element of the offense for purposes of imposing an enhanced sentence discovered yes and we didn't do anything with the fact that what i believe to be the fact that defense counsel never challenge the accuracy of the p r c even though as you indicated at some point the family denied very many adjudication a difference between a failure for jack which is what defense counsel that failure to object and in an actual knowing and intelligent relinquishment by the defendant of his right eye i think that what we have here is defense counsel for you object and failure to put the state to its proof but that doesn't mean that this defendant himself has effectively conceded  similar to the bolton case where there was an issue in the pre sentence report what the nature of the defendant's prior class drug offense was the pre sentence report insufficiently established that it wasn't sufficient just to look at the pre sentence report to establish the basis as it's significant here this is something that increases range he got more than fifty percent of the normal maximum range based on an allegation that was not conclusively established his eight year argument stranger seen it more clearly is it your argument that this particular pre sentence report wasn't clear about what this make that determination now i'm well i think in particular when you're talking about adult and convictions certainly a pre sentence report would be sufficient even in bolton though it wasn't sufficient when it related to the conviction i'm saying this pre sentence report was not sufficiently conclusive to show what the nature of his hundred line of communication so there could be sure there could be instances where maybe the pre sentence report says the defendant and all this present report tells us is there were several petitions and we don't even know if this was a victory trial subject to a plea i'm assuming it was a plea because it all got resolved on monday but we don't know what was the civically adjudicated for and what so what is the remedy we understand that in the moment there was no objection there was had there been an objection perhaps there could have been hearing of some sort was not just so what remedy now when we have this record problem i think it's essentially in the nature of the state being required to meet its burden the state didn't meet its burden so the remedy would be to vacate the extended term and send it back for a new sentencing hearing in a way i think it could be analogous to in the new sentencing hearing could be bringing out instead in fact the he was adjudicated in fact i would say no had anything to do with determining his prior duty station i think it could be analogous to a situation which doesn't valve an adult conviction say there's a u w where somebody has a prior felony the state doesn't put it in the indictment doesn't prove to the jury i don't think it's a sufficient at the sentencing hearing even at that point to come in with a certified copy of the prior felony conviction and say judge we're asking that you be sentenced as a felon because here's this conviction that we have just to clarify your response to that question if we disagree with you that the juvenile adjudication is of the simple to show think because it was something that the state has the burden of proving and it's effectively if it's not a prior conviction it's effectively an element of the offense but if we say it is a prior conviction if you no forfeiture here so that's not the purpose of the question but but does telling off of justice commerce question as to whether that's even necessary and at that at the time that the pre sentence report the defense counsel had the pre sentence report mean not knowing that there pre sentence report is going to be used in sentencing doesn't say this is wrong we need to modify it isn't that statutory as to how that's going to be presented i mean and defense counsel says you know i'm not even in light of the fact that in this case the respond in this particular case was making claims that it never happened that there was never the adjudication that's of no consequence to us i think the issue is that the burden is not on the defendant if you will in the yaps in the evidence the state is required to present and i think that stimulant to what happened in jeopardy the defendant didn't have to wasn't required to get up at a sensing hearing and all those prior burglaries they actually were generic burglaries the state has the burden of establishing the pre work prerequisite to impose double the sentence double the possible sentence on this particular reports are generally considered more reliable considered more reliable but they need to also be specific you know that the legislature it's clear the johnson courts and the ranking court also addressed the legislature intended to use prior adjudications very sparingly in fact this case and the johnson case from twenty thirteen or the only two cases i've even seen involving the state's attempt to use this subsection this piece and to impose an extended term and a juvenile and i think that's consistent with the idea that there is a difference between that continues to be differences between juvenile same incentive to defend against a criminal charge as an adult does it in particular in this case if there had been an allegation of a class x charge a juvenile defendant or juvenile responded he can still go home even with a class x because he's entitled to to progress on that kind then so he may in a lot of instances just be interested in going home it's not going to be published  to the public he's getting services so i think that's an indication the legislature intended that the state is going to be very careful about choosing which adjudications it's going to use the judge should be very careful about using wh adjudications it's going to use and typically if you i think maybe there was a expectation that the prosecutor in the judge might be looking behind the fact that the education if this was really an awful whatever  awful prior offenses he would have been transferred to adult court he was not transferred to adult court so i think again it doesn't really show reset of ism it shows a reluctance by legislature to equate them with convictions and this court should not equate this with a conviction it never has the legislature hasn't and therefore it should be a fact that subject to pleading and proof before a jury so in that respect you're as we would ask that the support the inclusion of eulogy to patients as convictions under that exception and there are three of them i'll take them each in turn the first is tradition history the second is reliability of hundred eight and that decision established the prior conviction exception actually before apparently was the rule of the exception was established in one thousand nine hundred eight and that case relied on the fact that courts had a long tradition in the united states distinction between juvenile adult offenses in colonial times they were offenses the juvenile system is largely a creation of the twentieth century so that's addition includes juvenile offenses the exception therefore should include them as well  the second point this really comes from jones the united states the supreme court decision from one thousand nine hundred nine and was again accurate in two thousand and the a pretty decision itself is that prior convictions are reliable because they were procedures that satisfy due process so when we come to enhance the sentence we don't worry that maybe they've got a rock or maybe there wasn't the process doing establishing that fact of a prior conviction because we've got to get that conviction we had to comply with  process comports of the process and the procedural protections for juveniles and we know are many they include the right to be present the right present evidence the right to cross examine witnesses the right to counsel and the right to pro procedures that satisfy due process it's reliable defendant of course points to the fact that there's not a jerk in jubal's you questions and the decisions that he relies on especially in oregon decision in the reply brief they also discussed that the court instead noted the a re a procedural protections that attend our actions and make them reasonable make them reliable the same thing is true here juvenile juvenile proceedings are reliable they satisfy due process like the presence of racial bias during the offense that is something that the jury has to consider as part of its task of determining the offense similarly with whether there was a vulnerable victim or the use of a firearm these things confirm the concern the history his his occupational history childhood his education these historical things are things that the court considers at sentencing they're different from the task that we give each other it's appropriate we give that test areas this is a slightly different task and something on which he was not adjudicated and so the ambiguity that he cited something that was perhaps created for purposes of appeal certainly was not something that was in fact into before the trial and that would have been this high to correct or deal juvenile case yes and it cites the record page of forty eight but that is the document in the common law record the document that document is not in the common law of record so we only have a reference to it in the transcript that's correct because there was never any dispute about the conviction that sentencing the people didn't prove it up they did not bring in the certified copy the last time it was ever debated or discussed in any way was prescribed that he had the right to amend the p s i i to make modifications and he decided not to do so he said no i would also add just generally that this court has recognized that yes eyes are reliable they're a good source for criminal others involved in the sentencing process they are completely reliable just like just like with adult convictions the same array of information is available but the side i will just briefly address shepherd the united states the case that the senate has relied on for the they are created by a member of the investigatory team with an investigatory function yes eyes are created by neutrals or courts information and a statute mandates what must be included and just with prior conviction i think that first of all that's really speculation there's no evidence in the record that this was not been tested or was not something that was heavily counseled and heavily litigated that is not a distinction that deprives the conviction or the judea cation of its basic reliability we are comfortable in illinois that our juvenile proceedings satisfy due process and we're comfortable sentencing people at their education based on those educations so therefore we should not feel i'm comfortable later in hansing a sentence based on that same procedure that satisfy due process and finally i would just argue that the evidence here even if we're just dealing with forfeiture as opposed to waiver it's not there's no player at the best case scenario or defendant this was an area where the law was conflicting that's not clear and obvious error this court has recognized did not even object to defendant argues that because this enhanced been affected the sentence there was clearly a prejudice that's not the correct way of analyzing plain error with the pretty issues since it's a procedural issue the question is not what would have happened if the and gets bit hadn't taken place or if they hadn't considered the privacy to cage the question is what would have happened if the jury had looked at it that's and if you look at nits again that's the two thousand and six case from this court you see how clean  rule attorney general says that in colonial times there is never even a distinction between juveniles and adults well that's not true now and the u s supreme court in fact has made it very clear recently that there are continuing differences between juveniles and adults which affect the way we should treat juvenile criminal history this court has said that there is a significant difference between juvenile and enjoy adult criminal proceedings which affect the way we should consider jim i do not believe that in my brief i focused on the fact that there was no jury in arguing that duty stations are not convictions because that's argues residential burglary dash probation in the sense the sentence the judgment of conviction was entered on that count because it says that verged burglary problem first best the land only damage to property in residential burglary three counts they were jones was sentenced to five years and eight months probation until his twenty first birthday and me aforementioned offenses is appear somewhere i don't think so i don't see how this is proof beyond a reasonable doubt if we want to look at this world with page which aren't it's it's a separate pre sentence report so there's a prior record at pages two and three just might have been and i'm full up within the common law record but there it is included in the record as opposed to the court docket sheets which again i don't even know what they consisted of i'm assuming they were just listings by the clerk as to what happened in the particular case but they were never tendered by the state to the court they were never included in the pre sent