No. 1-22-1328

Order filed August 18, 2023

Fifth Division

______________________________________________________________________________ 

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

______________________________________________________________________________ 

PEOPLE OF THE STATE OF ILLINOIS,

 Respondent-Appellee, 

v. 

TORIANO COLLINS, 

 

 Petitioner-Appellant. 

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Appeal from the Circuit Court

of Cook County.

No. 2017 CR 02675 

Honorable 

James Michael Obbish, 

Judge Presiding. 

PRESIDING JUSTICE DELORT delivered the judgment of the court.

Justice Lyle concurred in the judgment. Justice Mitchell dissented. 

ORDER

 

¶ 1 Held: We reverse defendant’s armed habitual criminal conviction because a conviction 

for an offense he committed when he was a minor does not qualify as a predicate offense. 

We reduce the conviction to unlawful possession of a weapon by a felon and remand for 

resentencing. 

¶ 2 BACKGROUND

¶ 3 Defendant Toriano Collins was charged with unlawful possession of a weapon by a felon 

(UUWF), which was elevated to the more serious crime of armed habitual criminal (AHC) 
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because, when he committed the UUWF, he had already been convicted of two qualifying 

predicate offenses: a 2013 drug crime and a 2015 gun offense. He now argues that, due to a 

legislative amendment, his 2013 conviction did not qualify as a predicate offense, and therefore 

the AHC conviction cannot stand because there was only one qualifying predicate offense. We 

reverse the AHC conviction, reduce it to UUWF, and remand for resentencing.

¶ 4 FACTS

¶ 5 In 2013, Collins was convicted of delivery of a controlled substance in case number 13 CR 

12839. Collins was 17 years old when he committed that offense. In 2015, he was convicted of

UUWF in case number 15 CR 00095. In this third prosecution, Collins was charged with UUWF 

and convicted of AHC on the basis of his two prior convictions. In defendant’s first appeal, we 

affirmed his 10-year AHC sentence over his contention that the circuit court improperly relied on 

evidence not presented at trial in aggravation in imposing the sentence. Further details regarding 

the procedural and factual history are set forth in that decision. People v. Collins, 2021 IL App 

(1st) 182399-U. 

¶ 6 On January 19, 2022, Collins filed a petition for relief pursuant to section 2-1401 of the 

Code of Civil Procedure (735 ILCS 5/2-1401) (West 2020)). In support of the petition, Collins 

argued that one of the two prior offenses—the 2013 controlled substance conviction—did not 

qualify as a predicate offense because he was only 17 years old when he committed that offense. 

At that time, 17-year-old defendants were prosecuted as adults for such offenses. However, under 

the 2014 amendment to the Juvenile Court Act (Act), such defendants would now be prosecuted 

in juvenile court, and juvenile offenses do not qualify as predicate offenses under the AHC statute. 

Collins contended that the 2014 amendment applied retroactively. Therefore, Collins argued, his 
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controlled substance conviction did not qualify as a predicate offense, and his AHC conviction 

must be reduced to UUWF. 

¶ 7 The circuit court issued a written opinion dismissing Collins’ petition. The court held that 

the amendment to the Act did not apply retroactively. This appeal followed.

¶ 8 ANALYSIS

¶ 9 On appeal, Collins makes the same argument as he did in his section 2-1401 petition: 

because his 2013 conviction did not qualify as a predicate offense under the new law, which applies 

retroactively, his AHC conviction must be reversed.

¶ 10 We first address two threshold matter raised by the State. The State urges us to dismiss this 

appeal because Collins’ section 2-1401 petition was untimely filed. It is true that petitions brought 

under section 2-1401 must generally be filed within two years after entry of judgment. 735 ILCS 

5/2-1401(c), (f) (West 2022); People v. Thompson, 2015 IL 118151, ¶¶ 28-29. However, timeliness 

is an affirmative defense that must be raised in the circuit court; otherwise, it is forfeited. People 

v. Cathey, 2019 IL App (1st) 153118, ¶¶ 14-19. The record does not indicate that the State ever 

raised this argument in the circuit court. As the State has forfeited its timeliness argument, we will 

honor its forfeiture and decline to dismiss Collins’ petition on that ground.

¶ 11 The State also argues that it “appears” that it did not receive proper service of Collins’ 

section 2-1401 petition. This argument is unpersuasive. “ ‘The object of process is to notify a party 

of pending litigation in order to secure his appearance.’ ” People v. Ocon, 2014 IL App (1st) 

120912, ¶ 23 (quoting Professional Therapy Services, Inc. v. Signature Corp., 223 Ill. App. 3d 

902, 910 (1992)). In considering whether a party provided sufficient notice, courts focus not on 

formalities, but whether the “object and intent of the law were substantially attained thereby.”

(Internal quotation marks omitted.) Ocon, 2014 IL App (1st) 120912, ¶ 23 (quoting Professional 
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Therapy Services, 223 Ill. App. 3d at 910-11 (quoting In re Marriage of Wilson, 150 Ill. App. 3d 

(1986), quoting Fienhold v. Babcock, 275 Ill. 282, 289- 90 (1916)). Here, the State concedes that 

an assistant state's attorney appeared in a status call during which the petition was discussed. The 

record contains no indication that the State objected to service in the cow1 below. As the State 

appeared, the object and intent of the law were attained. By appearing in court, the State waived 

any challenge it may have had regarding service. Accordingly, we decline to dismiss the petition 

on that ground. 

1 12 That brings us to the merits. Ultimately, this case revolves around an issue of statutory 

interpretation. We review the construction of statutory language de nova. People v. Jones, 2023 

IL 127810, 1 22 (citing People v. Gonzalez, 239 Ill. 2d 471 , 479 (2011)). 

1 13 Section 24-1. 7 of the Criminal Code provides, in relevant part, as follows: 

"A person commits the offense of being an armed habitual criminal if he 

***possesses*** any firearm after having been convicted a total of 2 or more times of 

any combination of the following offenses: 

*** 

*** unlawful use of a weapon by a felon*** 

*** [and] any violation of the Illinois Controlled Substances Act *** that is 

punishable as a Class 3 felony or higher. " 720 ILCS 5/24-1.7 (West 2016). 

1 14 This case involves the interplay of the Criminal Code and the Act. Until the end of 2013, 

minors could be charged under the Criminal Code as adults for certain crimes. A 2014 amendment 

to the Act changed that practice. As of January 1, 2014, with a few exceptions not relevant here, 

"no minor who was under 18 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 2016). The question before us 

4 
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is thus whether the 2014 amendment to the Act require us to reverse Collins’ AHC conviction and 

remand his case to the circuit court for resentencing. 

¶ 15 Our research has revealed four recent, similar cases in which our court interpreted the effect 

of the amendment at issue. We look to these for guidance in resolving the appeal before us.

¶ 16 In People v. Gray, 2021 IL App (1st) 191086, a jury found the defendant guilty of being 

an armed habitual criminal. Id. ¶ 6. One of the two predicate offenses that formed the basis for that 

conviction was a narcotics crime that Gray committed in 2002 when he was 17 years old. Id. Gray 

appealed the AHC conviction, arguing that the narcotics conviction could not support the AHC

charge because he was a juvenile at the time of the narcotics offense, and under the statutes now 

in effect, his offense would be tried in juvenile court, outside the jurisdiction of the criminal courts. 

Id. ¶ 9. We reversed his AHC conviction, reasoning that because at the time of the AHC charge in 

2016, Gray could not have been convicted of the narcotics crime he was found guilty of in 2002; 

he would have been prosecuted in juvenile court for that offense. Therefore, it did not qualify as a 

predicate offense necessary for an AHC conviction. Id. ¶ 16. We note that on November 30, 2022, 

our supreme court granted a petition for leave to appeal in People v. Gray (Ill., Nov. 30, 2022).

¶ 17 In People v. Dawson, 2022 IL App (1st) 190422, a jury found the defendant guilty of being 

an armed habitual criminal. Id. ¶ 1. Both of the predicate offenses were armed robberies that 

Dawson committed in 2013 at the age of 17. Id. ¶ 11. Dawson appealed the AHC conviction, 

arguing that neither robbery conviction could support the AHC charge because he was a juvenile 

at the time of both offenses. Id. ¶ 15. We reduced Dawson’s AHC conviction to the lesser included 

offense of aggravated unlawful use of a weapon. Id. ¶ 67. We concluded that the State had not met 

its burden of proof—beyond a reasonable doubt—in showing that Dawson had two qualifying 

adult convictions under the law in effect at the time of his AHC charge. Id. ¶ 48. That is, though 
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Dawson did have two adult convictions prior to the 2014 amendment, the State did not prove that 

those convictions would still be classified as adult convictions after the amendment came into 

force. Accordingly, the AHC conviction could not stand.

¶ 18 People v. Williams, 2020 IL App (1st) 190414, did not deal with an AHC conviction, but 

it did consider whether a crime convicted by a 17-year-old could qualify as a predicate offense to 

qualify him for Class X sentencing. Id. ¶¶ 1, 13. Therefore, we find the decision instructive. In that 

case, defendant was convicted of robbery in 2018, and the State advised the court of the 

defendant’s mandatory Class X sentencing based on two prior convictions: a 2014 robbery and a 

2013 burglary, the latter having been committed when he was 17 years old. Id. ¶ 11. We vacated 

Williams’ Class X sentencing and remanded his case for resentencing. Id. ¶ 24. We reasoned that, 

had Wiliams committed the 2013 burglary at the time of the 2018 robbery, he would have been 

adjudicated as a juvenile, and that offense would not have qualified as a predicate offense for Class 

X sentencing. Id. ¶ 21. 

¶ 19 However, the court in People v. Irrelevant, 2021 IL App (4th) 200626, reached a different 

conclusion. In that case, the defendant committed a burglary in 1983 when he was 17 years old, 

and argued that could not qualify as a predicate offense for his AHC conviction. Id. ¶ 20. The court 

disagreed, stating that it would be “speculative to assume defendant would not have been subject 

to a discretionary transfer had he committed his 1983 offense in 2016 at the age of 17.” Id. ¶ 38. 

¶ 20 We find the statutory interpretation and analyses of the decisions in Gray, Dawson, and 

Williams persuasive, we adopt their reasoning as our own, and we use them to resolve this appeal. 

Here, as in those cases, the defendant was 17 years old when he committed an offense that qualified 

as a predicate offense that led to his armed habitual criminal conviction. However, shortly after he 

was convicted of the predicate offense, an amendment to the Juvenile Court Act removed minors, 
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with a few exceptions not relevant here, from the jurisdiction of the adult criminal courts. Thus, 

under the amendment, Collins could not have been convicted of the controlled substance crime as 

that would have been adjudicated in juvenile court. Because Collins was a minor at the time of one 

of the prior offenses, it did not qualify as a predicate offense sufficient for the AHC conviction to 

stand. 

¶ 21 In so holding, we note our concern that, notwithstanding the apparent split in appellate 

authority, the circuit court followed the precedent from the Fourth District rather than the two 

precedents from this district. The circuit court was required to follow our decisions in Gray and 

Williams, as they were already decided when the court issued its decision denying Collins’ petition 

for relief on April 22, 2022. Under stare decisis, courts are required to follow the decisions of 

higher courts. O’Casek v. Children’s Home and Aid Society of Illinois, 229 Ill. 2d 421, 440 (2008). 

When these decisions are in conflict, the circuit court must follow the precedent of the appellate 

court of its district. Schramer v. Tiger Athletic Ass’n of Aurora, 351 Ill. App. 3d 1016, 1020 (2004).

¶ 22 In Gray and Williams, we held that an offense committed by a 17-year-old well before the 

2014 amendment did not qualify as a predicate offense. Based on that precedent, the circuit court 

here was compelled to find that Collins’ controlled substance offense he committed at age 17 did 

not qualify as a predicate offense for an AHC conviction. In sum, while the circuit court may have 

disagreed with the reasoning and outcome of the appeals in Gray and Williams, and was free to 

express its disagreement with them, it was required to follow their holdings under stare decisis. 

¶ 23 CONCLUSION

¶ 24 For these reasons, we reduce Collins’ AHC conviction to the lesser included offense of 

UUWF and remand for resentencing. See, e.g., People v. Dawson, 2022 IL App (1st) 190422, ¶ 67. 

¶ 25 Reversed and remanded.
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¶ 26 JUSTICE MITCHELL, dissenting:

¶ 27 The majority opinion does what the General Assembly specifically declined to do: it makes 

retroactive the 2014 amendment to the Juvenile Court Act raising the age limit for prosecution in 

adult criminal court from 17 to 18. That amendment is prospective only and applies to “violations 

or attempted violations committed on or after [January 1, 2014,] the effective date of this 

amendatory Act.” (Emphasis added.) 705 ILCS 405/5-120 (West 2014). As such, the 2014 

amendment can have no application to our defendant Toriano Collins’s 2013 felony conviction for 

delivery of a controlled substance. Having been convicted of two qualifying predicate felonies 

(from 2013 and 2015), Collins stands properly convicted of armed habitual criminal.

¶ 28 For this reason, I respectfully dissent. I would affirm Collins’s conviction and sentence.