SECOND DIVISION

									March 30, 2001

No. 1-99-3349

THE PEOPLE OF THE STATE OF ILLINOIS,

		Plaintiff-Appellee,

	v.

ADAM PENA,

		Defendant-Appellant.

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Appeal from the

Circuit Court of

Cook County

Honorable

Dennis A. Dernbach,

Judge Presiding.

	JUSTICE McBRIDE delivered the opinion of the court:

	Fifteen-year-old defendant Adam Pena was arrested for his role

in a shooting that occurred on February 11, 1998.  Pursuant to a

motion filed by the State, the case was transferred from the

juvenile division to criminal court, where defendant was

subsequently charged with attempted first degree murder, aggravated

battery with a firearm, armed violence, and three counts of

aggravated battery.  Following a bench trial, defendant was found

guilty of attempted first degree murder and sentenced to 18 years

in prison.  The statutory provision pursuant to which defendant was

transferred from juvenile to criminal court was part of an act that

has since been declared unconstitutional.  Defendant appeals,

contending that, due to the unconstitutionality of the act under

which he was transferred to criminal court, his conviction should

be vacated and the case remanded to juvenile court for further

proceedings.

	Defendant was arrested after he was identified as one of two

persons involved in an incident in which victim David Alcantar was

shot six times.  Defendant was 15 years old at the time of his

arrest.  His case was initially referred to the juvenile division

of the circuit court.  The State then filed a motion to permit

prosecution of a minor under the criminal laws.  The State based

its transfer request on section 5-4(3.3) of the Juvenile Court Act

of 1987 (705 ILCS 405/5-4(3.3) (West 1996).  Under section 5-

4(3.3), where certain conditions were met, a rebuttable presumption

was created that a minor's case should be transferred to criminal

court.  705 ILCS 405/5-4(3.3) (West 1996).  On July 31, 1998, the

State's motion was granted and the matter was transferred to

criminal court.

	A bench trial was subsequently held and defendant was found

guilty of attempted first degree murder and sentenced to 18 years

in prison.

	The presumptive transfer provision pursuant to which

defendant's case was transferred was enacted into law as part of

Public Act 88-680, also known as the "Safe Neighborhoods Law,"

which became effective on January 1, 1995.  Pub. Act 88-680, eff.

January 1, 1995.  On December 2, 1999, Public Act 88-680 was

declared unconstitutional in its entirety by our supreme court as

violative of the single subject rule of the Illinois Constitution. 

People v. Cervantes, 189 Ill. 2d 80, 723 N.E.2d 265 (1999). 

	Public Act 90-590 (Pub. Act 90-590, eff. January 1, 1999), otherwise known as the Juvenile Justice Reform Act, enacted

presumptive transfer language (705 ILCS 405/5-805(2) (West 1998))

that was similar to the provision that had been in Public Act 88-

680.  For the purposes of this case, we will assume that Public Act

90-590 did not suffer from the same constitutional infirmities as

Public Act 88-680.

	On appeal, defendant contends that where Public Act 88-680 was

found unconstitutional in its entirety, the presumptive transfer

provision under which this case was transferred to criminal court

in 1998 was void ab initio as of its effective date of January 1, 1995.  Therefore, defendant concludes, his conviction must be

vacated and his cause remanded to the juvenile court for further

proceedings.

	The State concedes that all of the provisions contained in

Public Act 88-680, including the presumptive transfer provision,

were void ab initio following Cervantes.  The parties agree that where the Act was void ab initio, the state of the law was as if the act had never been passed.  In re G.O., 191 Ill. 2d 37, 43, 727 N.E.2d 1003 (2000); People v. Gersch, 135 Ill. 2d 384, 390, 553 N.E.2d 281 (1990).  The State further concedes that the matter must

therefore be remanded for a new transfer hearing.

	The parties disagree, however, on what law should be applied

at the new transfer hearing.  Defendant contends that, on remand,

the circuit court should apply the transfer provisions as they

existed prior to the enactment of Public Act 88-680.  The State, however, maintains that the new transfer hearing should be

conducted pursuant to the presumptive transfer provision enacted by

the Juvenile Justice Reform Act and now in effect.  705 ILCS 405/5-

805 (West Supp. 1999).

	Defendant maintains there is no question that the "quantum of

punishment" to which he could be subjected increases upon the

transfer of his case to the criminal court.  Therefore, defendant

reasons, if the process through which a transfer could be

accomplished were made easier by a change in the law that occurred

after the offense was committed, then the retroactive application

of that law would disadvantage him and violate ex post facto principles.

	The clause prohibiting ex post facto laws found in Illinois' Constitution (Ill. Const. 1970, art. I, §16) has been read in step

with the construction of its federal counterpart (U.S. Const., art.

I, §9, cl.3).  Fletcher v. Williams, 179 Ill. 2d 225, 229, 688 N.E.2d 635 (1997); Barger v. Peters, 163 Ill. 2d 357, 360, 645 N.E.2d 175 (1994).  Under either provision, a criminal law will be considered ex post facto where it (1) is retrospective in that it applies to events occurring prior to its enactment, and (2) falls

into one of the traditional categories of prohibited criminal laws. 

People v. Criss, 307 Ill. App. 3d 888, 896, 719 N.E.2d 776 (1999).  These traditional categories include any statute that punishes as

a crime an act previously committed and innocent when done; laws

that make the punishment for a crime more burdensome after its commission; and statutes that deprive one charged with a crime of

any defense available at the time when the act was committed. 

Collins v. Youngblood, 497 U.S. 37, 42, 111 L. Ed. 2d 30, 39, 110 S. Ct. 2715, 2719 (1990), citing Beazell v. Ohio, 269 U.S. 167, 169-70, 70 L. Ed. 216, 217, 46 S. Ct. 68, 68 (1925).

	Defendant's contention that application of the current

transfer provision would "disadvantage" him does not necessarily

mean that application of the provision would violate ex post facto principles.  The United States Supreme Court has "retreated from earlier opinions suggesting that changes affecting punishment

automatically fall within the ex post facto prohibition if they operate to the 'disadvantage' of covered offenders."  In re J.R., 302 Ill. App. 3d 87, 126, 704 N.E.2d 809 (1998).  In California Department of Corrections v. Morales, 514 U.S. 499, 506 n.3, 131 L. Ed. 2d 588, 595 n.3, 115 S. Ct. 1597, 1602 n.3 (1995), the Supreme

Court noted that after Collins "the focus of the ex post facto inquiry is not on whether a legislative change produces some

ambiguous sort of 'disadvantage,' *** but on whether any such

change alters the definition of criminal conduct or increases the

penalty by which a crime is punishable."  See also Fletcher, 179 Ill. 2d at 234, quoting Morales, 514 U.S. at 506 n.3, 131 L. Ed. 2d at 595 n.3, 115 S. Ct. at 1602 n.3.  Our own Illinois Supreme

Court, in discussing the traditional ex post facto category of laws that increase punishment, noted that, following Collins, if a law does not make more burdensome the punishment for a crime after its commission, "it is of no moment that the law may work to a

prisoner's disadvantage."  Barger, 163 Ill. 2d at 361-62; see also Fletcher, 179 Ill. 2d at 234 (noting that, in Morales, the Supreme Court had "reaffirmed its rejection of an offender's 'disadvantage'

as an element in the test for determining whether a criminal law

was ex post facto").

	Under the presumptive transfer provision enacted in Public Act

90-590 and now in effect (705 ILCS 405/5-805(2) (West Supp. 1999)),

defendant's case may be transferred to criminal court or may remain

in juvenile court.  Significantly, even if the new provision does

not apply and the court on remand were to use the discretionary

transfer provision that existed prior to Public Act 88-680,

defendant might still be subject to prosecution under the criminal

laws.  705 ILCS 405/5-4(3) (West 1992).  The presumptive transfer

provision now in effect did not, therefore, by virtue of its

enactment, either create the possibility of defendant being

transferred to criminal court or increase the penalty for the acts

committed by defendant.  Instead, it merely changed the conditions

under which a juvenile may be transferred to criminal court.

	Amendatory acts that are procedural in nature may be

retrospectively applied to pending matters.  People v. Nitz, 173 Ill. 2d 151, 162, 670 N.E.2d 672 (1996), overruled on other grounds by People v. Mitchell, 189 Ill. 2d 312, 727 N.E.2d 254 (2000).  According to the Illinois Supreme Court, whether a defendant is

tried in juvenile or criminal court is a matter of procedure.  People v. P.H., 145 Ill. 2d 209, 222, 582 N.E.2d 700 (1991); People v. DeJesus, 127 Ill. 2d 486, 498, 537 N.E.2d 800 (1989).  In People v. Taylor, 76 Ill. 2d 289, 302, 391 N.E.2d 366 (1979), the court held that a transfer hearing, while important to a juvenile, does

not determine guilt or innocence but is instead dispositional in

nature, determining the forum in which guilt or innocence will be

adjudicated.  The court in Taylor also quoted extensively from an opinion of the Supreme Court of Washington in which that court

discussed the nature of a juvenile court transfer hearing.  The

Washington Supreme Court stated that a juvenile transfer hearing

does not result in a determination of delinquency or "'result in a

determination of guilt as may a criminal trial; and does not

directly result in confinement or other punishment as may both a

delinquency hearing and a criminal proceeding.  In short, the

transfer hearing is not an adversary proceeding.'"  Taylor, 76 Ill. 2d at 302-03, quoting State v. Piche, 74 Wash. 2d 9, 14, 442 P.2d 632, 635-36 (1968).  In People v. Bryant, 278 Ill. App. 3d 578, 585, 663 N.E.2d 105 (1996), this court noted that the juvenile

transfer provision "merely defined the applicability of the

Juvenile Court Act."

	The fact that the transfer provision in question does not

itself increase the punishment for the crimes committed by

defendant distinguishes the instant case from In re F.G., No. 1-97- 0682 (December 28, 2000), and In re R.T., 313 Ill. App. 3d 422, 729 N.E.2d 889 (2000), relied upon by defendant.  In both F.G. and R.T., the juvenile offenders were sentenced under a provision of Public Act 88-680 that required a mandatory minimum commitment of

five years.  Under the law prior to Public Act 88-680, the

defendants would not have been subject to a mandatory minimum

sentence.  After Public Act 88-680 was declared unconstitutional,

the defendants argued that their causes should be remanded for

resentencing under the law as it existed prior to Public Act 88-

680.  The State in both cases maintained that the Juvenile Justice

Reform Act's mandatory minimum provision, enacted subsequent to the

provision invalidated when Public Act 88-680 was struck down,

should be applied instead.  In R.T., 313 Ill. App. 3d at 432, the court found that because commitment was the only possible

disposition under the new law, while the sentencing judge had

discretion to impose probation under the pre-Public Act 88-680 law,

the new law provided for a harsher range of punishment and was

therefore substantive and not procedural.  In In re F.G., slip op. at 14, the court similarly found that where the new law, as opposed

to the old law, mandated a five-year prison sentence, the quantum

of punishment had been affected and the change in sentencing was

substantive rather than procedural.  Here, where the new transfer

provision was concerned only with the methods employed in

determining whether cases involving minors may be transferred to

criminal court, and there was no change in the quantum of

punishment attached to defendant's acts, the changes were clearly

procedural in nature.  See Dobbert v. Florida, 432 U.S. 282, 293- 94, 53 L. Ed. 2d 344, 356, 97 S. Ct. 2290, 2298-99 (1977).

	We conclude that the presumptive transfer provision added by

Public Act 90-590 and currently in effect is procedural in nature. 

Where it does not "punish as a crime an act previously committed,

which was innocent when done; nor make more burdensome the

punishment for a crime, after its commission; nor deprive one

charged with crime of any defense available according to law at the

time when the act was committed," the application of the

retroactive procedural transfer provision enacted by Public Act 90-

570 does not violate ex post facto principles and may be applied on remand.  See Collins, 497 U.S. at 52, 111 L. Ed. 2d at 45, 110 S. Ct. at 2724_.

	The State argues that, regardless of which transfer provision

is to be utilized on remand, the trial court's determination that

defendant was proven guilty of attempted first degree murder beyond

a reasonable doubt must not be disturbed.  The State, however, has

failed to support this contention with any authority.  The trial in

the instant case occurred following a juvenile transfer that was

conducted pursuant to a provision that was part of an act later

found to be unconstitutional in its entirety and void ab initio.  Defendant, on remand, is entitled to a new transfer hearing

followed by a new trial.

	Defendant's conviction is vacated and this matter is remanded

to the juvenile court for a new transfer hearing based on the law

now in effect, followed by further proceedings as necessary.

	Conviction vacated; cause remanded with directions.

	GORDON,  and COUNSINSINS, JJ., concur.