No. 2--01--1309

_________________________________________________________________

	IN THE

	APPELLATE COURT OF ILLINOIS

	SECOND DISTRICT

_________________________________________________________________

THE PEOPLE OF THE STATE	)	Appeal from the Circuit Court

OF ILLINOIS,	)	of Du Page County.

		)

	Plaintiff-Appellee,	)

	)	

v.	)	No. 99--CF--0760

                                )

	)	Honorable

DOMINGO MENDOZA,	)	Michael J. Burke and

	)	Kathryn E. Creswell,

	Defendant-Appellant.	)	Judges, Presiding.

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Modified Upon Denial of Rehearing

	JUSTICE CALLUM delivered the opinion of the court:

	Defendant, Domingo Mendoza, entered a blind guilty plea to burglary (720 ILCS 5/19--1(a) (West 1998)), and the trial court

sentenced him to three years' probation with the condition that he

comply with the Treatment Alternatives for Safe Communities (TASC)

program (see 20 ILCS 301/40--5 et seq. (West 1998)).  The State petitioned to revoke defendant's probation, and defendant admitted

the allegations of the petition.  The trial court sentenced

defendant to 10 years' imprisonment after finding he was subject to

a mandatory Class X sentence under section 5--5--3(c)(8) of the

Unified Code of Corrections (Code) (730 ILCS 5/5--5--3(c)(8) (West

1998)).  On appeal, defendant argues that (1) because he was not

"over the age of 21 years" when he was convicted, the trial court

improperly enhanced his sentence under section 5--5--3(c)(8) of the

Code and (2) even if section 5--5--3(c)(8) applies here, when defendant pleaded guilty, the trial court failed to admonish him

that he could be sentenced as a Class X offender.  We affirm.

	Defendant was born on February 10, 1978.  The State charged

defendant with burglary and theft (720 ILCS 5/16--1(a)(1)(A) (West

1998)).  The indictment alleged that the offenses occurred on March

24, 1999.  On July 23, 1999, the parties presented a plea agreement

to the trial court.  Defendant would plead guilty to burglary, and

the State would nol-pros the theft charge.  While admonishing

defendant, Judge Burke advised him that burglary was a Class 2

felony punishable by 3 to 7 years' imprisonment or, if defendant

was eligible for an extended term, 7 to 14 years' imprisonment. 

While arguing the aggravating sentencing factors, the assistant

State's Attorney stated, "[t]he only reason he's not Class X

eligible, Judge, is the fact that he is 21.  I believe the statute

requires an individual to be over the age of 21."  The State asked

the court to impose an extended term of eight years' imprisonment

based on defendant's criminal history.  See 730 ILCS 5/5–--5--

3.2(b)(1) (West 1998).  The trial court sentenced defendant to 3

years' TASC probation and 364 days of periodic imprisonment with

credit for 122 days served.

	On February 2, 2000, the State petitioned to revoke

defendant's probation on the ground that TASC terminated him from

its treatment program.  The hearing on the petition commenced on

April 6, 2000.  The trial court heard testimony from one witness

and continued the hearing.  On April 13, 2000, pursuant to the

parties' agreement, the trial court continued the cause until June

15, 2000, "for status on TASC compliance."  The court ordered defendant to comply with all of the conditions of the TASC program. 

During the June 15 hearing, a TASC representative reported that

defendant was complying with the treatment program and was "doing

extremely well."

	On November 15, 2000, the State filed a second petition to

revoke, again on the ground that TASC terminated defendant from its

program.  The State alleged additionally that, on August 10, 2000,

he tested positive for drugs and missed several treatment

appointments in July and August 2000.

	Defendant admitted the allegations of the petition.  During

the hearing, the State informed Judge Creswell that defendant was

eligible to be sentenced as a Class X offender, and Judge Creswell

admonished defendant accordingly.

	The trial court continued the cause for sentencing.  Defendant

again petitioned for TASC treatment, and TASC accepted him.  At the

conclusion of the sentencing hearing, the trial court found that it

was unlikely that defendant would comply with a treatment program

and that TASC probation would deprecate the seriousness of

defendant's conduct.  Accordingly, the court sentenced defendant to

10 years' imprisonment.

	Defendant timely moved to reconsider the sentence.  The motion

argued that a sentence of six years' imprisonment would better

recognize the gains defendant made while undergoing treatment and

help him to progress by continuing treatment.  Defendant filed a

second motion arguing that section 5--5--3(c)(8) of the Code

violates the proportionate penalties clause of the Illinois

Constitution (Ill. Const. 1970, art. I, §11) and the due process guarantees recognized in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).  The trial court denied the

motions, and defendant timely appealed.

	On appeal, defendant argues first that, because he was only 21

years old when he was convicted and not "over 21," the Class X

recidivist provision could not be applied to him.  That provision

states in pertinent part:

				"When a defendant, over the age of 21 years, is convicted

of a Class 1 or Class 2 felony, after having twice been

convicted of any Class 2 or greater Class felonies in

Illinois, and such charges are separately brought and tried

and arise out of different series of acts, such defendant

shall be sentenced as a Class X offender."  730 ILCS 5/5--5--

3(c)(8) (West 1998).

	Defendant never raised this argument in the trial court.  If,

as defendant argues, however, section 5--5--3(c)(8) cannot be

applied to him because of his age when convicted, then the Class X

sentence is void and may be challenged on this basis for the first

time on appeal.  See People v. Bradley, 336 Ill. App. 3d 62, 72 (2002) (sentence not authorized by statute is void and may be

attacked at any time).

	When interpreting a statute, the court's primary objective is

to ascertain and give effect to the legislature's intent.  People v. Jurisec, 199 Ill. 2d 108, 118 (2002).  The most reliable indicator of legislative intent is the language of the statute

which, if unambiguous, must be read without exception, limitation,

or other condition.  People v. Davis, 199 Ill. 2d 130, 135 (2002).  The court must give the language of the statute its plain and

ordinary meaning.  People v. Morgan, 197 Ill. 2d 404, 451 (2001).  The interpretation of a statute is a question of law, which we

review de novo.  Davis, 199 Ill. 2d at 135.

	Defendant urges us to interpret "over 21" as referring to

someone who is at least 22 years old.  We are mindful that criminal

or penal statutes must be construed strictly in favor of the

accused and that we should not imply anything beyond the obvious or

literal meaning of the statute.  Davis, 199 Ill. 2d at 135.  We believe, however, that defendant's interpretation of section 5--5--

3(c)(8) is contrary to what "over 21" is commonly understood to

mean.

	Becoming 21 years old is a significant milestone in our

society, and Illinois's legislative scheme reflects this.  For

example, persons "under 21" years old generally may not consume

alcohol.   235 ILCS 5/6--20 (West 2002).  The Juvenile Court Act of

1987 defines a "minor" as "a person under the age of 21 years" (705

ILCS 405/1--3(10), 5--105(10) (West 2002)) and an "adult" as "a

person 21 years of age or older" (705 ILCS 405/1--3(2) (West

2002)).  See also 720 ILCS 570/312(c)(2) (West 2002) (providing

that a pharmacist may dispense certain controlled substances for

medical purposes but only to "a person over 21 years of age").

	In discussing section 5--5--3(c)(8), this court has adopted

the commonly understood meaning of "over 21."  We stated:

			"[The statute] presumes that persons under the age of 21 have

great rehabilitative potential since a sentence will not be

increased until after a defendant reaches age 21.  Our interpretation is consistent with the goal of prescribing a

sentence that is proportionate to the seriousness of the

offense with regard to the presumption that minors should be

rehabilitated."  People v. Storms, 254 Ill. App. 3d 139, 142 (1993).

See also People v. Dunlap, 315 Ill. App. 3d 1017, 1029 (2000) (applying section 5--5--3(c)(8) to defendant who was 21 when

convicted).

	To adopt defendant's reasoning would "repeal long standing

custom and usage."  In re Application of Smith, 351 P.2d 1076, 1078 (Okla. Crim. App. 1960) (person who reaches the age of 18 is "over

the age of 18" under statute defining first-degree rape); see also State v. Linn, 363 P.2d 361, 363-64 (Alaska 1961) (minor who turned 16 three months before committing offense was "over 16 years of

age" under statute allowing minor to be tried as an adult); Farrow v. State, 258 A.2d 276, 277 (Del. 1969) (same; rejecting argument that statute should be strictly construed in favor of accused). 

Accordingly, we conclude that someone like defendant who is

convicted of an offense anytime after turning 21 is "over the age

of 21 years" pursuant to section 5--5--3(c)(8).

	Defendant cites several decisions which are distinguishable. 

Most of the decisions addressed statutory language such as "21

years old or younger."  Carolina Freight Carriers Corp. v. Keane, 311 Md. 335, 337, 534 A.2d 1337, 1338 (1988); see also State v. Joshua, 307 Ark. 79, 82-83, 818 S.W.2d 249, 251 (1991) ("twelve years of age or younger"); Hansen v. State, 421 So. 2d 504, 504 (Fla. 1982) ("eleven years of age or younger"); State v. Carlson, 223 Neb. 874, 880, 394 N.W.2d 669, 674 (1986) ("fourteen years of

age or younger"); State ex rel. Morgan v. Trent, 195 W. Va. 257, 260, 465 S.E.2d 257, 260 (1995) ("eleven years old or less").  This

is entirely different language that has no bearing on the analysis

here.  Under the type of statutory language at issue in the

decisions just cited, defendant here could be considered "21 years

old or younger," but that is not the question before us.  Our

decision is based on the common understanding of what it means to

be "over 21."  It would not be inconsistent to conclude that

defendant was "21 years old or younger" under a statute like the

ones in the cases cited above and "over 21" under the statute at

issue here.

	In State v. Christensen, 20 P.3d 329 (Utah 2001), the State charged the defendant with rape against a victim "not older than

17."  The court held that the victim, who had passed her

seventeenth birthday, would not be older than 17 until she reached

her eighteenth birthday.  Christensen, 20 P.3d at 331.  The court stated:

			"[I]t is almost a universal practice in our society to state

our age *** by the number of full years we have lived, without

adding or recognizing that we have also lived some additional

months beyond those full years.  We do not ordinarily

recognize increase in our age until we have lived another full

year."  Christensen, 20 P.3d at 330.

	This language supports defendant's position, but the analysis

does not end there.  Although it is custom for people to state

their ages in whole numbers, the fact remains that people are continually aging.  A child who reaches his or her first birthday

has lived one full year and, on passing that birthday, is more than

one year old.  Similarly, someone who has passed his or her twenty-

first birthday has lived more than 21 years and therefore is over 21.  Farrow, 258 A.2d at 277.  In Smith, the court referred to a statute stating that people must be "over the age of twenty-one

years" to be eligible to vote.  The court observed:

			"Surely no one would be so bold, in face of the long custom

and usage, in that connection, to assert that before a person

would become eligible to vote he would have to have reached

his 22nd birthday. *** Such interpretation would amend the clear intent of the statute by unusual interpretation." 

Smith, 351 P.2d at 1078.

	Additionally, we note that Christensen actually is not on point.  The court there recognized the force of the defendant's

interpretation and ultimately was swayed against him because the

statute was part of a legislative scheme designed to protect

children under 18.  Christensen, 20 P.3d at 331.  The court noted several examples "where the legislature has determined that a

person is not capable of making adult decisions until he or she has

attained the age of eighteen.  A person's eighteenth birthday has

specific significance in terms of personal autonomy."  Christensen, 20 P.3d at 331.  Like the Christensen court, we base our decision on the legal and societal significance of reaching a certain age.

	We are aware that the legislature has used more specific

language to describe a class of people who have reached a certain

age.  For example, to be eligible for the death penalty, a defendant must have "attained the age of 18 or more."  720 ILCS

5/9--1(b) (West 2002).  In the same section containing the Class X

recidivist provision, the legislature has mandated, under certain

circumstances, educational courses for prison inmates who are "at

least 17 years of age."  730 ILCS 5/5--5--3(j--5) (West 2002).

	Of course, by employing certain language in one instance and

wholly different language in another, the legislature indicates

that it intended different results.  In re K.C., 186 Ill. 2d 542, 549-50 (1999).  This rule is not universal, however.  Buss v. Edwards, 203 Ill. App. 3d 992, 997 (1990).  Here, there is no strong indication that the legislature intended a different result

by using "over 21" instead of "at least 21" or other similar

language.  In fact, the legislature has used the different phrases

interchangeably within a single statutory provision.  Section 6--

16(a) of the Liquor Control Act of 1934 (235 ILCS 5/6--16(a) (West

2002)) prohibits a common carrier, express company, or contract

carrier from delivering to anyone under 21 years old a shipping

container labeled as containing alcoholic beverages and requires

the signature of an "adult of at least 21 years of age."  The

section states further that, to prevent violations, the shipper or

carrier shall refuse to deliver to anyone unable to produce

adequate written evidence of identity and "of the fact that he or

she is over the age of 21 years."  235 ILCS 5/6--16(a) (West 2002). 

Here, there is no evidence that the legislature intended the phrase

"over 21" to have a meaning inconsistent with its plain and

ordinary meaning.  Therefore, we reject defendant's claim that

section 5--5--3(c)(8) does not apply to him.

	Defendant argues second that, even if section 5--5--3(c)(8)

applies here, his plea is void because, when defendant pleaded

guilty, the trial court failed to admonish that he was eligible to

be sentenced as a Class X offender.  Defendant has waived this

issue because he did not move to withdraw his plea but instead

sought only reconsideration of his sentence.  188 Ill. 2d R.

604(d); People v. Hayes, 336 Ill. App. 3d 145, 151 (2002).  The trial court's failure to admonish the defendant properly under

Supreme Court Rule  402(a) (177 Ill. 2d R. 402(a)) may constitute

plain error, however.  Hayes, 336 Ill. App. 3d at 151.

	The failure to admonish a defendant properly does not

automatically require reversing the judgment or vacating the plea. 

Hayes, 136 Ill. App. 3d at 151.  Whether we must reverse depends on whether real justice has been denied or whether the inadequate

admonishment prejudiced the defendant.  Hayes, 336 Ill. App. 3d at 151.

	When the trial court understates the maximum possible penalty

but sentences the defendant within the limits as stated at the time

of the plea, no prejudice results, and the defendant is not

entitled to withdraw his plea.  People v. Rhoades, 289 Ill. App. 3d 292, 298 (1997).  Rhoades involved a very similar situation.  The State charged the defendant with two counts of burglary.  During

the guilty plea hearing, the trial court advised the defendant of

the Class 2 sentencing range, including the possibility of an

extended term of 14 years' imprisonment.  Later, during the

sentencing hearing, the prosecutor pointed out that the defendant

had to be sentenced as a Class X offender.  Also, the trial court incorrectly advised the defendant that he was eligible for TASC probation.  The trial court imposed concurrent eight- and nine-year prison terms.  On appeal, the court concluded that, because "[t]he

defendant's request for TASC probation was considered by the trial

judge, and the sentence issued was well within the range explained

to the defendant at the guilty plea hearing," the inaccurate

admonishments did not prejudice the defendant.  Rhoades, 289 Ill. App. 3d at 298.

	Here, as in Rhoades, when defendant pleaded guilty, the trial court advised him that he could receive an extended term of 14

years' imprisonment.  Although the trial court failed to advise

defendant that he was required to be sentenced as a Class X

offender, it ultimately imposed a 10-year term, which is within the

limits the trial court originally stated.  When defendant admitted

the allegations of the petition to revoke, the trial court properly

advised him of the Class X sentencing range.

	We are aware that it has been stated that when a defendant has

been advised that the minimum sentence is less than it actually is,

he cannot be deemed to have made an intelligent decision because

the range of possible penalties is greater than he believed. 

People v. Tripp, 248 Ill. App. 3d 706, 715 (1993).  Tripp is distinguishable, and we conclude that the statement in Tripp does not apply here.  In Tripp, the trial court advised a defendant charged with murder that the minimum sentence was 20 years' imprisonment and that the maximum sentence was life imprisonment.  In fact, the defendant was subject to a mandatory life sentence. 

In Tripp, the prejudice to the defendant was manifest.  The maximum sentence as stated during the admonishments turned out to be the

mandatory minimum.

	Here, the record does not reveal any prejudice.  Defendant has never alleged that he would not have pleaded guilty if he had known

he was facing a minimum sentence of six years' imprisonment instead

of three years' imprisonment.  It is apparent that defendant

pleaded guilty with the hope of receiving TASC probation, which he initially received.  Relevant to our conclusion that real justice has not been denied here is that in his Rule 604(d) certificate,

defense counsel stated that he was satisfied "after corresponding

with [defendant] and talking with him on the phone, that

[defendant] does not wish to withdraw his plea of guilty to the

violations of probation but seeks only to proceed on a motion to

reconsider the sentence."  Accordingly, we follow Rhoades, which is on point.  We conclude that the inaccurate guilty plea

admonishments did not prejudice defendant and that he is not now

entitled to withdraw his plea.

	The judgment of the circuit court of Du Page County is

affirmed.

	Affirmed.

	BOWMAN and O'MALLEY, JJ., concur.