2015 IL 117669

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

(Docket No. 117669) 

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. DAVID FIVEASH,

Appellant. 

Opinion filed September 24, 2015.

JUSTICE KILBRIDE delivered the judgment of the court, with opinion. 

Chief Justice Garman and Justices Freeman, Thomas, Karmeier, Burke, and 

Theis concurred in the judgment and opinion. 

OPINION

¶ 1 In this appeal, defendant argues the appellate court erred by interpreting section 

5-120 of the Juvenile Court Act of 1987 (705 ILCS 405/5-120 (West 2004)) to 

permit him to be tried in criminal court for acts he allegedly committed while 14 or 

15 years old even though no charges were filed until he was 23 years old. After 

carefully reviewing the Act and the other relevant statutory provisions and case 

law, we affirm the appellate court’s judgment and remand the cause to the trial 

court for further proceedings.
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¶ 2 I. BACKGROUND

¶ 3 In May 2012, then 23-year-old defendant David Fiveash was charged in the 

circuit court of Cook County with two counts each of aggravated criminal sexual 

assault and criminal sexual assault. The acts involved the sexual penetration of the 

vagina and mouth of his 6-year-old cousin, P.A., between January 1, 2003 and 

January 1, 2004, when he was 14 or 15 years old. At that time, both he and P.A. 

were living in the same residence.

¶ 4 The Mt. Prospect police department was notified of the possible sexual abuse of 

P.A. on April 17, 2012, when a police department in Indiana provided information 

obtained during an interview with another one of defendant’s cousins. After being 

questioned by the Mt. Prospect police, defendant gave verbal and written 

statements regarding the allegations involving P.A. 

¶ 5 At the subsequent grand jury proceedings, testimony based on statements from 

defendant, the victim, and other witnesses indicated that defendant had “admitted 

to placing his penis inside the mouth and vagina of the victim.” On the condition 

that he not have contact with anyone under the age of 18, bond was set for 

defendant, who was certified to teach grades 6 through 12 but could substitute teach 

for grades kindergarten through 12 and had been teaching part-time at two schools.

¶ 6 Defendant filed a motion to dismiss the indictment, arguing that section 5-120 

of the Juvenile Court Act (705 ILCS 405/5-120 (West 2004)1

) gave the juvenile 

court “exclusive jurisdiction” over offenses allegedly committed when he was 14, 

barring his prosecution in criminal court. Defendant also maintained that he could 

not be prosecuted in juvenile court because he was already over 21. In re Jaime P., 

223 Ill. 2d 526, 539 (2006). Consequently, he requested the dismissal of all charges 

against him.

¶ 7 After a hearing in October 2012, the trial court granted defendant’s dismissal 

motion, finding that he was not subject to prosecution in either juvenile court or 

criminal court. The court determined that defendant could not be prosecuted in

either juvenile court, because he was then 23 years old, or in adult criminal court, 

because a statutory transfer from juvenile court was no longer possible. Although 

the trial court found the result was unjust, absurd, and clearly unfair to the victim, it 

 1

The offenses allegedly occurred in 2003, making the supplemental 2003 version of the statute 

applicable. Because that version is identical to the one in the 2004 Illinois Compiled Statutes, we 

cite simply to the 2004 statute.
- 3 - 

concluded the applicable statutes did not allow for prosecution in either court. The 

court subsequently denied the State’s motion to retain defendant’s bond pending 

appeal.

¶ 8 On appeal, the appellate court construed the language in section 5-120, defining 

the “exclusive jurisdiction” of the juvenile court. Substituting the statutory 

definition for the section’s use of the word “minor,” the appellate court read section 

5-120 as barring criminal proceedings only against defendants under the age of 21 

for offenses they allegedly committed while under the age of 17, with certain 

inapplicable exceptions. Because defendant was 23 when the indictment was 

entered, the appellate court concluded section 5-120 did not apply. Consequently, it 

held that the juvenile court did not possess exclusive jurisdiction over the matter. 

The court also determined that the plain language of section 5-120 was consistent 

with the rationale in In re Luis R., 239 Ill. 2d 295 (2010), and distinguished People 

v. Rich, 2011 IL App (2d) 101237, on both its facts and law. Accordingly, the court 

reversed the dismissal of defendant’s indictment and remanded the cause for trial in 

adult criminal court. 2014 IL App (1st) 123262, ¶ 27. This court allowed 

defendant’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Jan. 1, 2015).

¶ 9 II. ANALYSIS

¶ 10 Defendant argues that the appellate court erred by reinstating his indictment 

because it held that a person over the age of 21 at the time of indictment could be

prosecuted in adult criminal court for offenses allegedly committed when he was a 

minor at least 13 years of age. The narrow question before this court is whether 

defendant may be subject to prosecution in criminal court for acts he allegedly 

committed when he was 14 or 15 years of age. Because this issue involves the 

proper construction of the Juvenile Court Act, and section 5-120 in particular, it 

presents a question of law to be reviewed de novo. People v. Baskerville, 2012 IL 

111056, ¶ 18. 

¶ 11 The critical starting point for the resolution of any question of statutory 

construction is the plain language of the statute, in this case section 5-120 of the 

Act. People v. Almond, 2015 IL 113817, ¶ 34. The cardinal rule of statutory 

construction, subordinating all other rules, is to determine and give effect to the 

intent of the legislature. The most reliable indicator of that intent is the language 
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used in the statute. Whenever possible, that language should be given its plain and 

ordinary meaning. People v. Hanna, 207 Ill. 2d 486, 497-98 (2003). 

¶ 12 Here, the appellate court’s statutory analysis looked to the Act’s definitions of 

the words “adult” and “minor” and inserted those definitions into section 5-120. 

2014 IL App (1st) 123262, ¶ 27. Defendant argues, however, that the court erred by 

applying the statutory definition of “minor” because the legislature did not intend 

to invoke that meaning when it amended the prior version of the statute. Noting that 

the predecessor to section 5-120 used the words “boys” and “girls,” he claims the 

legislature substituted “minor” in response to our decision in People v. Ellis, 57 Ill. 

2d 127 (1974). In Ellis, 57 Ill. 2d at 133, we ruled that the legislature could not 

constitutionally establish different threshold ages for the criminal prosecution of 

boys and girls. According to defendant, the legislature substituted “minor” for 

“boys” and “girls” in section 5-120 because it was simply “a word with a neuter 

gender to describe all persons under the age of 17.” 

¶ 13 We are not persuaded by defendant’s explanation of the legislature’s word 

choice. When a term is defined within a statute, that term must be construed by 

applying the statutory definition provided by the legislature. People v. Chenoweth, 

2015 IL 116898, ¶ 21. Moreover, if the legislature merely sought a gender neutral 

substitute for “boys” and “girls,” it could have readily chosen another term that was 

not already defined in the Act, such as “juvenile,” “individual” or “anyone.” 

Instead, the legislature specifically chose “minor,” a word expressly defined in the 

Act (705 ILCS 405/5-105 (West 2004)). Accordingly, in the absence of clear 

evidence exhibiting a contrary legislative intent, section 5-120 must be read to 

incorporate that meaning of “minor.” Chenoweth, 2015 IL 116898, ¶ 21. 

¶ 14 Returning to the specific language used in the Act, we note that the Act’s

purpose and policy limit its scope to “minors” who are not otherwise excluded from 

its coverage. 705 ILCS 405/1-2 (West 2004). In turn, the Act defines a “[m]inor” as 

“a person under the age of 21 years subject to this Act” and, conversely, an 

“[a]dult” as “a person 21 years of age or older.” 705 ILCS 405/1-3(2), (10) (West 

2004). Pursuant to these definitions, both defendant and the State acknowledge, 

and we agree, that the juvenile court has no authority over defendant because he 

was 23 years old when the instant proceedings were instituted and was, therefore, 

no longer subject to the Act’s provisions. 
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¶ 15 Because the focus of the parties’ arguments is largely on the “exclusive 

jurisdiction” provision in section 5-120, we next address the specific language of 

that section. Replacing the word “minor” with its statutory definition, as we must, 

section 5-120 properly reads: 

 “§ 5-120. Exclusive jurisdiction. Proceedings may be instituted under the

provisions of this Article concerning any [person under the age of 2l years 

subject to this Act] who prior to the [person under the age of 2l years subject to 

this Act[’s]] 17th birthday has violated or attempted to violate, regardless of 

where the act occurred, any federal or State law or municipal or county 

ordinance. Except as provided in Sections 5-125, 5-130, 5-805, and 5-810 of 

this Article,

[2] no [person under the age of 2l years subject to this Act] 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 405/5-120 (West 2004). 

For his part, defendant claims the last sentence of section 5-120 bars his 

prosecution outside juvenile court because, in the absence of an applicable

exception, it does not permit any minor under the age of 17 at the time of the 

offense to be prosecuted in criminal court. We disagree. 

¶ 16 Defendant’s interpretation ignores the limiting phrase “subject to this Act” in 

the statutory definition of “minor” the legislature used to describe the group of 

persons under 21 constituting “minors” for purposes of the Act. Paraphrasing the 

key sentence in section 5-120, no person under 21 who is subject to the Act, and 

who was younger than 17 when the alleged offense was committed, may be 

prosecuted in adult criminal court. Defendant fails to meet these criteria. He is 

neither under 21 nor subject to the Act, as expressly conceded in defendant’s brief. 

Consequently, the last sentence of section 5-120 does not bar defendant’s 

prosecution in criminal court for offenses he allegedly committed when he was 14 

or 15 years old. 

¶ 17 Defendant also relies heavily on his view of the legislature’s “comprehensive” 

three-tier scheme regulating the prosecution of persons under 17, including the 

 2

None of these statutory exceptions are applicable here. Section 5-125 addresses concurrent 

jurisdiction over traffic, boating, fish and game, and municipal or county ordinance violations. 

Section 5-130 excludes from juvenile court prosecution certain serious offenses committed by 

minors who are at least 15 years old. Sections 5-805 and 5-810 set out the requirements for 

mandatory, presumptive, and discretionary transfers from juvenile court to criminal court, as well as 

extended jurisdiction juvenile prosecutions. These transfer procedures do not apply here because the 

requisite petitions were not filed while defendant was subject to the juvenile court’s authority. 
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availability of mandatory, presumptive, and discretionary transfers from juvenile 

court to criminal court. He faults the appellate court for failing to consider that 

scheme in its analysis. In defendant’s view: (1) persons under 13 at the time of an 

offense may never be convicted as adults; (2) those between 13 and 17 are 

generally prosecuted in juvenile court and are subject to the juvenile justice system 

only until they turn 21; and (3) those 17 or older are handled exclusively in criminal 

court. 

¶ 18 Defendant contends that the State’s interpretation of section 5-120 improperly 

creates a new judicial transfer mechanism between juvenile and criminal court. 

Admitting that a broad range of transfer options from juvenile to criminal court 

already exists, he maintains that the legislature provided only for the “aging out of” 

defendants from juvenile court, not their “aging into” adult criminal court, leaving 

him beyond the reach of State prosecution. 

¶ 19 While the legislature’s scheme may indeed be “comprehensive,” defendant’s 

argument fails to recognize that if he had been charged while a minor, he could still 

have been properly tried as an adult through the Act’s discretionary transfer

mechanism because he was at least 13 years of age at the time of the alleged 

offenses (705 ILCS 405/5-805(3) (West 2004)). Thus, the application of the 

legislative scheme in the Act could well have subjected him, while still a juvenile, 

to trial in adult criminal court, the very fate that he asks this court to reject outright

now that he is an adult. 

¶ 20 Defendant’s view effectively allows him to escape prosecution for four felony 

sexual offenses3 allegedly committed against a six-year-old family member. As the 

trial court stated, his position creates an absurd result that contradicts the 

legislature’s express intent to hold those who commit criminal offenses directly 

accountable for their actions as expressly stated in the Act and the Criminal Code of 

1961 (Code) (720 ILCS 5/1-1 (West 2004)). 

¶ 21 Adjudication in juvenile court is not a matter of constitutional right. The 

legislature created the juvenile court and defined its authority. No other right to 

adjudication in juvenile court exists. In re M.I., 2013 IL 113776, ¶ 46. As the 

legislature stated, the Act was enacted, in part, “[t]o hold each juvenile offender 

 3 The two aggravated criminal sexual assault counts are Class X felonies (720 ILCS 

5/12-14(b)(i), (d)(1) (West 2004)), and the two criminal sexual assault counts are Class 1 felonies 

(720 ILCS 5/12-13(a)(3), (b)(1) (West 2004)).
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directly accountable for his or her acts” (705 ILCS 405/5-101(1)(b) (West 2004)), a 

fundamental purpose that was emphasized even more strongly with the 

legislature’s amendment of the Act in Public Act 90-590, effective January 1, 1999. 

People ex rel. Devine v. Stralka, 226 Ill. 2d 445, 457-58 (2007). In a similar 

fashion, the Code subjects any “person” to criminal prosecution by the State “for an 

offense which he commits, while either within or outside the State, by his own 

conduct or that of another for which he is legally accountable,” with a “person” 

being broadly defined as “an individual, public or private corporation, government, 

partnership, or unincorporated association.” 720 ILCS 5/1-5(a), 2-15 (West 2004). 

Thus, the legislature has effectively enacted a seamless set of provisions committed 

to the uniform enforcement of the criminal laws of this state.

¶ 22 Contrary to the legislature’s express intent to hold all persons accountable for 

their offenses, however, defendant’s interpretation of section 5-120 creates a strong 

and perverse incentive for juvenile offenders to take affirmative action to conceal 

their offenses or to evade apprehension until they turn 21 and would no longer be 

subject to prosecution. While defendant asserts that nothing in the record indicates 

he attempted to evade prosecution, that argument is beside the point. We reject 

defendant’s position not because he personally took advantage of the incentive to 

evade prosecution or hide his offenses created by his construction of the statute but, 

rather, because the effect of that interpretation runs contrary to the clear intent of 

the legislature as stated in the plain statutory language. People ex rel. Devine v. 

Sharkey, 221 Ill. 2d 613, 617 (2006) (stating “[w]here the plain language of the 

statute clearly reveals the legislature’s intent, that intent must prevail, and no resort 

to other interpretive aids is necessary”).

¶ 23 To counter the absurdity of interpreting section 5-120 to bar defendant’s 

prosecution forever, defendant maintains that “[a]ny time-based limit on filing 

criminal charges is necessarily arbitrary in nature.” Although the prosecution of 

virtually every crime is admittedly cut off at some point in time by the applicable 

statute of limitations, in the case of sex offenses committed against children, the 

legislature has expressly and affirmatively chosen to expand, not reduce, the time

frame for charging persons such as defendant. Under section 3-6(j) of the Code: 

“[t]he period within which a prosecution must be commenced under the 

provisions of Section 3-5 or other applicable statute is extended under the 

following conditions: 
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 * * * 

(j) When the victim is under 18 years of age at the time of the offense, a 

prosecution for criminal sexual assault, aggravated criminal sexual assault, 

predatory criminal sexual assault of a child, or aggravated criminal sexual 

abuse or a prosecution for failure of a person who is required to report an 

alleged or suspected commission of any of these offenses ***, may be 

commenced within 10 years after the child victim attains 18 years of age.” 

(Emphasis added.) 720 ILCS 5/3-6(j) (West 2002).

This provision greatly increases the time available to the State to discover and 

initiate criminal proceedings for sexual offenses committed against children.4

¶ 24 By enacting section 3-6(j), the legislature conclusively established its clear and 

unambiguous intent to hold the enumerated class of offenders accountable for an 

extended period by providing for the criminal prosecution of their offenses well 

beyond the normal time frame. Inherent in the legislature’s choice must be the 

implicit recognition that both youthful victims and their assailants age at the same 

rate. Thus, it was readily foreseeable that juveniles who commit the offenses listed 

in section 3-6(j) of the Code could logically be adults before the extended statute of 

limitations had run on their crimes. Indeed, even if the victim were 17 at the time of 

the attack, only a very rare defendant would still be under the age of 21, and 

therefore subject to the Act’s protections, 10 years after the victim turned 18 under 

the extended limitations period in section 3-6 of the Code. 

¶ 25 Cutting off the State’s ability to initiate a prosecution far sooner than was 

plainly intended under that provision would eviscerate the clear intent of the 

legislature, creating an absurd result. This we will not do given the plain and 

unambiguous intent of the language used by the legislature in enacting section 

5-120 of the Act and section 3-6 of the Code. In re Shelby R., 2013 IL 114994, 

¶¶ 32, 48. 

¶ 26 Nonetheless, defendant argues that the enactment of section 3-6’s extended 

limitations period in the Code a year after the Act’s section 5-120 was in effect, 

without an accompanying amendment to section 5-120 authorizing the juvenile 

court to adjudicate defendants after they turn 21, somehow undermines our 

 4

While not applicable in the instant case, the legislature subsequently increased the time to 

initiate prosecutions for the enumerated offenses against child victims from 10 years to 20 years 

after the child victim turns 18.
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conclusion. In making this argument, defendant appears to be attempting to point 

out a legislative inconsistency, perhaps implying that the extended limitations 

provision was not intended to apply to youthful defendants who committed the 

specified offenses while subject to the Act. We find nothing in the statutory 

language, however, to support that claim. Indeed, it is defendant’s interpretation 

that is inconsistent with the clear intent of the legislature. Moreover, our 

construction of the Act is preferable because it establishes a fixed and consistent

charging time and application of sections 3-6(j) and 5-120, in contrast to the one 

offered by defendant that would vary depending on the age of the offender. 

¶ 27 In the instant case, the victim was 6 years old at the time of the alleged offenses. 

Pursuant to section 3-6 of the Code, the statute of limitations for charging 

defendant with her repeated criminal sexual assault and aggravated criminal sexual 

assault extended until December 10, 2024, when she turned 28.5

 Defendant was 

charged in 2012, well within the applicable limitations period. We conclude that by 

retaining the limited authority of the juvenile court under the Act while greatly 

expanding the State’s available time frame for initiating the prosecution of the 

specified sex offenses, the legislature paved the way for the criminal prosecution of 

youthful offenders who subsequently “age out of” the juvenile court system. 

¶ 28 Nonetheless, defendant also asserts that this court’s earlier interpretation of 

identical language in section 5-120’s statutory predecessors (Ill. Rev. Stat. 1967, 

ch. 37, ¶¶ 702-2, 702-7) supports his view, citing several cases that used the 

minor’s age at the time of the offense to determine the viability of an adult 

prosecution. People v. Clark, 119 Ill. 2d 1, 13-14 (1987); People v. J.S., 103 Ill. 2d 

395, 401-04 (1984); In re Griffin, 92 Ill. 2d 48, 50-53 (1982); In re Greene, 76 Ill. 

2d 204, 212-13 (1979). He adds that the legislature’s failure to change the statutory 

language in response to those decisions suggests its acquiescence to their holdings. 

¶ 29 As defendant admits in his brief, however, the cited decisions do not involve the 

precise issue presented here: the propriety of prosecuting a defendant who was over 

the age of 21 when charged in criminal court for offenses allegedly committed 

while he was a minor. Our review also shows that the factual and legal context of 

those cases further distinguish them from the instant one.

 5

P.A. was born on December 10, 1996, making her 18 on that date in the year 2014. Section 3-6 

then allows an additional 10 years for the State to initiate its prosecution.
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¶ 30 In Clark, 119 Ill. 2d at 14-16, this court concluded that it was an abuse of the 

trial court’s discretion in ruling on a discretionary transfer petition to fail to 

consider the difference in the 14-year-old defendant’s potential sentences in 

juvenile and criminal court if convicted of two murders. In juvenile court, the minor 

could have been incarcerated until the age of 21, but in criminal court he would 

have received a mandatory sentence of natural life in prison. Based on the extreme 

sentencing disparity, we held the defendant’s transfer hearing was inadequate. 

Here, however, we are not reviewing the propriety of a transfer order to criminal 

court because no transfer from juvenile court was available when the instant 

defendant, then 23 years old, was charged. We are considering whether prosecution 

in criminal court is even possible for defendant, not whether the trial court properly 

considered all relevant factors in using its discretion to order transfer pursuant to an 

admittedly applicable provision. 

¶ 31 Next, in J.S., 103 Ill. 2d at 401-05, we upheld the constitutionality of the 

mandatory transfer of certain juvenile offenders to criminal court for trial. 

Although that precise issue is clearly inapposite, our express recognition in J.S. that 

no constitutional right to juvenile court proceedings exists is highly relevant here. 

As we noted, the legislature possesses “the authority to define the limits of juvenile 

court jurisdiction” and is entitled to “redefin[e] the applicability of a statute which 

it created under its legislative power” by altering the age limits for juvenile and 

adult court proceedings. J.S., 103 Ill. 2d at 402, 406. Contrary to defendant’s 

claims, those statements of law reinforce, not undermine, our construction of 

section 5-120 in this case. 

¶ 32 Defendant also cites In re Griffin, 92 Ill. 2d at 50-52, in support. In that case, we 

were called on to determine whether a defendant who was 12 when he was 

adjudicated delinquent but 13 when he was sentenced could be committed to the 

Juvenile Department of Corrections (DOC) under a statute allowing juveniles who 

were at least 13 to be sent to the DOC. Similar to our conclusion in this case, we 

relied on the plain language of the statute to hold that the relevant point in time was 

the entry of the commitment order, upholding the transfer to the DOC. While we 

indicated in dicta that “[t]he sections providing that a minor may be transferred 

from juvenile court for prosecution as an adult contain express language making 

transfer dependent upon the minor’s age at the time he committed the offense” 

(Griffin, 92 Ill. 2d at 52), that statement is insufficient to resolve the question here. 

Because the Act applies only to minors, our statement is applicable only to those 
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charged while minors. Here, defendant was undoubtedly an adult when he was 

initially prosecuted and, thus, not subject to the protections of the Act. 

¶ 33 Finally, in Greene, 76 Ill. 2d at 212, this court held that age is not an element of 

proof needed to support a finding of delinquency but rather “merely the factor 

which authorizes the application of the juvenile system.” Recognizing that the 

juvenile court is simply a division of the circuit court, we noted that age is not a 

jurisdictional requirement, unlike subject matter jurisdiction. Greene, 76 Ill. 2d at 

213-14. The age limit on juvenile court adjudication is set solely by the statutory 

language enacted by the legislature. Therefore, if, as in this case, a defendant’s age 

places him outside the scope of the Act, the court has no authority to proceed under 

the Act. That holding is not inconsistent with our conclusion in this case. 

¶ 34 Defendant next complains that our construction of section 5-120 violates the 

rule of lenity by failing to construe a criminal statute in favor of the accused. 

Critically, the rule of lenity applies only to statutes containing “grievous 

ambiguities,” leaving us unable to do more than merely “guess” the legislature’s 

intent. People v. Gutman, 2011 IL 110338, ¶¶ 43-44. When a statute is silent on a 

particular point, we focus on the legislature’s intent, and we will not interpret 

statutory silence in a way that defeats the purpose of that provision. People v. 

Garcia, 241 Ill. 2d 416, 422-23 (2011). If the statutory language is unambiguous, 

we will not resort to additional statutory construction tools. In re Commitment of 

Fields, 2014 IL 115542, ¶ 32. Because the key sentence in section 5-120 is 

sufficiently clear and unambiguous when construed in light of the definition of 

“minor” enacted by the legislature in the Act, we need not merely “guess” at the 

intent of the legislature. The rule of lenity is inapplicable.

¶ 35 Arguing that section 5-120 could in fact be deemed ambiguous, defendant cites 

to the conflicting results among this case, People v. Richardson (2014 IL App (1st) 

122501, ¶¶ 13-16, pet. for leave to appeal pending, No. 118028 (filed July 28, 

2014)), and People v. Rich (2011 IL App (2d) 101237, ¶¶ 8-17). The latter 

decisions held that no one over 21 could be prosecuted in criminal court for acts 

allegedly committed before the age of 17 in the absence of a timely juvenile court 

transfer petition or an express statutory exception. Both Richardson and Rich rely 

on a dissent filed in In re Luis R., 239 Ill. 2d 295, 307-09 (2010) (Freeman, J., 

dissenting, joined by Burke, J.). 
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¶ 36 In Luis R., a majority of this court reversed the dismissal of the State’s 

delinquency petition because the trial court improperly relied on a lack of 

jurisdiction. Concluding that both subject matter and personal jurisdiction existed, 

the majority reinstated the petition and remanded the cause for further proceedings. 

The dissenting justices disagreed because they would have addressed the validity of 

the State’s petition rather than relying on the trial court’s jurisdictional error. After 

characterizing the Act as both providing for the protection and special treatment of 

juveniles and precluding the imposition of criminal penalties on them, the dissent 

found “[t]he Act by its own language does not apply to” the defendant Luis R. 

because he was over 21 when the proceedings were instituted. Therefore, the 

dissent would have sustained the dismissal of the State’s delinquency petition on 

the alternate ground that the trial court lacked adjudicatory authority over the 

defendant under the Act. Luis R., 239 Ill. 2d at 308-09 (Freeman, J., dissenting, 

joined by Burke, J.). 

¶ 37 In Rich, the appellate court reviewed the dismissal of an indictment on two 

counts of aggravated criminal sexual assault filed in adult criminal court against the 

21-year-old defendant for acts he allegedly performed between the ages of 12 and 

14. Initially, the court affirmed the dismissal order because the indictment was 

legally defective for criminally charging the defendant with acts he committed 

before the age of 13 (720 ILCS 5/6-1 (West 2008)). Rich, 2011 IL App (2d) 

101237, ¶ 7. The court went on, however, to affirm the dismissal for an additional 

reason as well, considering the substantive question of whether an adult defendant 

could be charged in criminal court for offenses allegedly committed before the age 

of 15. Rich, 2011 IL App (2d) 101237, ¶ 8. 

¶ 38 In that discussion, the court did not rely extensively on the Luis R. dissent, 

citing it solely for the inoffensive proposition that defendants are no longer subject 

to the Act or entitled to its special protections and treatment after they reach the age 

of 21. Rich, 2011 IL App (2d) 101237, ¶¶ 9, 10. The appellate court then examined 

the four exceptions to section 5-120’s bar on the prosecution of minors under the 

age of 17, concluding none were applicable. Rich, 2011 IL App (2d) 101237, 

¶¶ 10-12. Ultimately, the court appears to have rested its holding that the defendant 

could not be prosecuted in criminal court on the ground that the State failed to 

pursue its initial criminal petition against the defendant, filed when he was 20 years 

old and still subject to the Act, and instead relied on a superseding indictment, 

identical to the first, filed when he was 21 and no longer subject to the Act. Rich, 

2011 IL App (2d) 101237, ¶¶ 4, 15-16. Thus, despite the appellate court’s brief 
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allusion to the dissent in Luis R., the facts and determinative legal reasoning in Rich

are readily distinguishable from the instant case.

¶ 39 In contrast, Richardson extensively discussed this court’s decision in Luis R. as 

well as the subsequent appellate decision, In re Luis R., 2013 IL App (2d) 120393. 

Reading Luis R. and Rich together, the court concluded they “essentially create[d] a 

class of over-21 defendants who can no longer be prosecuted either in juvenile or 

adult court for certain crimes they allegedly committed as minors.” Richardson, 

2014 IL App (1st) 122501, ¶ 9. The court found the dissent in Luis R. “not only 

helpful, but highly persuasive” “regarding the merits of [the] closely related issue” 

presented in Richardson. Richardson, 2014 IL App (1st) 122501, ¶ 13. In addition, 

the court rejected the statutory analysis conducted in the instant case by a different

division of the First District Appellate Court. Richardson, 2014 IL App (1st) 

122501, ¶ 15. 

¶ 40 Instead, the Richardson court applied the rule of lenity to read the last sentence 

of section 5-120 as barring the criminal prosecution of the defendant, who was 29 

years old, because he was no longer subject to the Act. Because that conclusion is 

diametrically opposed to the one reached earlier in this decision (supra ¶ 34), we 

reject that rationale.

¶ 41 Moreover, the reasoning in Richardson appears to have been influenced by the 

appellate court’s concerns that the State could intentionally delay prosecutions “to 

sidestep the beneficial and age-sensitive remedies available to juveniles and elevate 

the scope of possible punishments to the more severe levels applicable in the adult 

system.” Richardson, 2014 IL App (1st) 122501, ¶ 15. In Rich, the court mentioned 

similar concerns, stating that “radically different sentences for the same crime, 

committed at the same age, might result merely from the passage of time before 

being charged.” Rich, 2011 IL App (2d) 101237, ¶ 9. Here, defendant restates the 

same policy considerations. 

¶ 42 Specifically, defendant argues that our construction of section 5-120 creates an 

incentive for the State to delay prosecution until a juvenile defendant turns 21 and 

can be tried in adult criminal court, where he no longer has the benefit of the Act’s 

protections and preferential treatment. He adds that a criminal trial under those 

circumstances would inevitably raise difficult new procedural questions, such as 

whether a defendant has the right to discover why charges were not filed against 

him until after he turned 21. Under the facts of this case, however, any discussion of 
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those matters would be merely advisory because the police and the State were 

undisputedly not aware of any potential charges against defendant until they were 

notified of his possible sexual abuse of P.A. by Indiana police, who unexpectedly 

uncovered the information while interviewing another of his cousins. Charges were 

filed against defendant within days after the Mt. Prospect police first became aware 

of the allegations. At that time, defendant was already over 21 and no longer 

subject to the Act. Because the courts of this state may not properly issue advisory 

opinions to provide guidance to future litigants (Luis R., 239 Ill. 2d at 299 n.1), we 

decline to speculate on the possibility that the State could intentionally delay filing 

initial charges until a defendant turned 21 to ensure a prosecution in criminal court.

¶ 43 Finally, defendant argues that his due process rights were violated because he 

could face a much longer prison term in adult criminal court than could have been 

imposed in juvenile court for the same offenses. Defendant is accused of two 

counts of aggravated criminal sexual assault, a nonprobationable Class X felony 

offense in criminal court, and two counts of criminal sexual assault, a Class 1 

felony. He asserts that in criminal court he could be sentenced to prison terms of 6 

to 30 years on each of the Class X felony counts, with an additional 4 to 15 years 

possible on each of the Class 1 felony counts, with all the sentences mandated to 

run consecutively. 6 In contrast, the maximum sentence that could have been 

imposed in juvenile court was only six years because he would no longer be subject 

to juvenile court sanctions when he turned 21. 

¶ 44 The State counters that in People v. Patterson, 2014 IL 115102, this court 

rejected a similar due process claim addressing Illinois’s automatic transfer 

scheme. That statute provided for the mandatory transfer to criminal court of 

certain juveniles over the age of 14 charged with the specified offenses. The 

defendant in that case argued the statute violated due process because the transfers 

subjected teens to significantly harsher adult punishments without any 

consideration of their inherent differences. Patterson, 2014 IL 115102, ¶ 89. Here, 

defendant asserts that this case involves a different statutory provision, partially 

distinguishing the legal issues in Patterson. 

 6

The State contends defendant faces a maximum sentence of 60 years, rather than the 90 years 

defendant claims, because the two Class 1 felonies and two Class X felonies are subject to the rule of 

merger when based on the same acts. For purposes of our analysis, however, the precise number of 

years defendant faces in prison, if convicted, is immaterial. Suffice it to say that defendant is subject 

to a total prison sentence in criminal court that is significantly longer than the maximum sentence he 

could have received in juvenile court.
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¶ 45 While section 5-120 was not at issue in Patterson, the same concern pervades 

the arguments raised by both the defendants in Patterson and the instant case: 

juvenile offenders tried in adult criminal court could potentially be subjected to 

harsher adult punishments without proper consideration of their unique physical 

and mental characteristics. As we discussed in Patterson, the need to consider 

juveniles’ unique characteristics was recognized in the eighth amendment context 

by this court in People v. Miller, 202 Ill. 2d 328, 341-42 (2002), and by the United 

States Supreme Court in Roper v. Simmons, 543 U.S. 551 (2005), Graham v. 

Florida, 560 U.S. 48 (2010), and Miller v. Alabama, 567 U.S. ___, 132 S. Ct. 2455

(2012). Patterson, 2014 IL 115102, ¶¶ 97-98. Neither that Court nor this one, 

however, has ever held that the failure to address the inherent differences between 

teen and adult offenders creates a due process violation when a teen is potentially 

subjected to a prison sentence involving a term of years rather than the death 

penalty or natural life in prison. Patterson, 2014 IL 115102, ¶¶ 97-98. It is also 

important not to forget that even if defendant had been charged at the time of the 

alleged offenses, he undoubtedly could have been tried as an adult in criminal court 

under the Act’s discretionary transfer provision (705 ILCS 405/5-805(3) (West 

2004)). Because defendant offers no additional persuasive basis to justify the 

reconsideration of our prior case law, we reject his due process claim.

¶ 46 As in Patterson, 2014 IL 115102, ¶ 111, however, we recognize the inherent 

tension and potential for perceived unfairness between juvenile dispositions and the 

comparatively harsh punishments defendants may face in criminal court for 

offenses allegedly committed as juveniles. Accordingly, the legislature is 

encouraged to reevaluate section 5-120 in light of this court’s decision. 

¶ 47 III. CONCLUSION

¶ 48 For the reasons stated, we affirm the appellate court’s judgment reversing the 

dismissal of the indictment against defendant. Section 5-120 of the Act does not bar 

the prosecution of defendant in criminal court for offenses he allegedly committed 

when he was 14 or 15 but was not charged with until he was over 21 and no longer 

subject to the Act. Accordingly, we affirm the judgment of the appellate court and 

remand the cause to the trial court for further proceedings. 
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¶ 49 Appellate court judgment affirmed.

¶ 50 Cause remanded.