2014 IL App (3d) 110467-B

Opinion filed February 4, 2014

_____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2014

In re ANTOINE B., )

)

a Minor )

)

(The People of the State of Illinois, )

)

Petitioner-Appellee, )

)

v. )

)

Antoine B., )

)

Respondent-Appellant). )

Appeal from the Circuit Court

of the 10th Judicial Circuit,

Peoria County, Illinois.

Appeal No. 3-11-0467

Circuit No. 11-JD-96

The Honorable

Chris L. Fredericksen,

Judge, presiding.

_____________________________________________________________________________

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

Justices Holdridge and Wright concurred in the judgment and opinion.

_____________________________________________________________________________

OPINION

¶ 1 Respondent, Antoine B., was adjudicated delinquent for two counts of felony theft (720 

ILCS 5/16-1(a)(1)(A), (b)(2) (West 2010)) and committed to the Department of Juvenile Justice 

(DOJJ) for an indeterminate term not to exceed three years. Respondent appealed, arguing that 

the commitment to the DOJJ was excessive. We affirmed the trial court's judgment. In re 

Antoine B., 2013 IL App (3d) 110467-U, ¶¶ 14, 17. Pursuant to a supervisory order from the 

supreme court, we subsequently withdrew our decision and directed the parties to file 
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supplemental briefing on the issue of whether respondent's felony adjudications were void under 

the supreme court's decision in People v. Taylor, 221 Ill. 2d 157, 182 (2006), which held that a 

prior felony juvenile adjudication was not a prior felony conviction for purposes of the escape 

statute. In re Antoine B., No. 116538 (Ill. Oct. 2, 2013). Upon consideration of the supplemental 

briefing, we find that: (1) respondent's current juvenile adjudications for felony theft are not void 

but should be reduced to misdemeanor theft adjudications; (2) the dispositional order committing 

respondent to the DOJJ is not an authorized disposition for misdemeanor offenses and is void; 

and (3) this case should be remanded so that the previous orders may be amended in the trial 

court to indicate that respondent was adjudicated delinquent for two counts of misdemeanor theft 

and so that the trial court may conduct a new dispositional hearing to determine the appropriate 

disposition for respondent based upon the two charges of misdemeanor theft. Therefore, we 

vacate the trial court's commitment order and remand this case with directions for further 

proceedings.

¶ 2 FACTS

¶ 3 In March 2011, a juvenile delinquency petition was filed charging the then-14-year-old 

respondent with two counts of Class 4 felony theft for stealing two bicycle lights. The charges 

were elevated to felonies because respondent had a prior juvenile delinquency adjudication for 

theft (see 720 ILCS 5/16-1(b)(2) (West 2010)). At a plea hearing, respondent admitted the 

allegations of the petition and was adjudicated delinquent. Following a dispositional hearing, 

respondent was committed to the DOJJ for an indeterminate term not to exceed three years. He 

filed a direct appeal, alleging that the commitment to the DOJJ was excessive. We affirmed the 

trial court's judgment. Antoine B., 2013 IL App (3d) 110467-U, ¶¶ 14, 17. Respondent 

subsequently filed a motion asking this court to withdraw its decision and to allow supplemental 
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briefing. In that motion, respondent alleged for the first time that his felony theft adjudications 

were void pursuant to Taylor. We denied respondent's motion. Respondent filed a petition for 

leave to appeal (PLA) to the supreme court. The supreme court denied respondent's PLA but 

entered a supervisory order directing this court to allow the supplemental briefing on the Taylor

issue. We withdrew our decision and directed the parties to file the supplemental briefing.

¶ 4 ANALYSIS

¶ 5 In his supplemental briefing, respondent argues that his juvenile delinquency 

adjudications for felony theft are void and that they should be vacated outright. Respondent 

asserts that the two theft charges in the instant case were elevated from misdemeanors to felonies 

based upon his prior juvenile adjudication for theft, which was used as an element of the current 

offenses, and that under Taylor and the rules of statutory construction, such an enhancement is 

impermissible because a prior adjudication for theft does not constitute a prior conviction for 

purposes of section 16-1(b)(2) of the theft statute (720 ILCS 5/16-1(b)(2) (West 2010)). The 

State agrees that a prior juvenile adjudication for theft does not constitute a prior conviction for 

purposes of section 16-1(b)(2) but argues, nevertheless, that respondent's two theft adjudications 

are not void and should merely be reduced to misdemeanor theft adjudications, rather than 

vacated outright. The State asserts that the theft adjudications are not void because a prior theft 

conviction (the prior adjudication in this case) was not an element of the two theft offenses but, 

rather, was used only to elevate the two charges from misdemeanors to felonies.

¶ 6 Issues of statutory construction, such as the one in the present case, are subject to de novo

review on appeal. People v. Baskerville, 2012 IL 111056, ¶ 18. The fundamental rule of 

statutory construction is to ascertain and give effect to the intent of the legislature. Id. The most 

reliable indicator of that intent is the plain and ordinary meaning of the language of the statute 
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itself. Id. In determining the plain meaning of statutory terms, a court should consider the 

statute in its entirety and keep in mind the subject the statute addresses and the apparent intent of 

the legislature in enacting the statute. Id.; 5 ILCS 70/1.01 (West 2010). In addition, if the statute 

is a criminal or penal one, it must be strictly construed in favor of the defendant. People ex rel. 

Gibson v. Cannon, 65 Ill. 2d 366, 370-71 (1976). When the language of a statute is clear and 

unambiguous, the statute must be applied as written, without resorting to further aids of statutory 

construction. People v. Dabbs, 239 Ill. 2d 277, 287 (2010). A court may not depart from the 

plain language of the statute and read into it exceptions, limitations, or conditions that are not 

consistent with the express legislative intent. Baskerville, 2012 IL 111056, ¶ 18. However, if 

the language of a statute is ambiguous in that it is susceptible to more than one reasonable 

interpretation, a court may consider extrinsic aids to determine the meaning of the statutory 

language. See Williams v. Illinois State Scholarship Comm'n, 139 Ill. 2d 24, 51 (1990).

¶ 7 The theft statute in effect at the time that the offenses in the instant case were committed 

provided, in relevant part, as follows:

"(b) Sentence.

* * *

(2) A person who has been convicted of theft of property not from the person 

and not exceeding $500 in value who has been previously convicted of any type 

of theft *** is guilty of a Class 4 felony. When a person has any such prior 

conviction, the information or indictment charging that person shall state such 

prior conviction so as to give notice of the State's intention to treat the charge as a 

felony. The fact of such prior conviction is not an element of the offense and may 
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not be disclosed to the jury during trial unless otherwise permitted by issues 

properly raised during such trial." 720 ILCS 5/16-1(b)(2) (West 2010).

The question in this case is whether, as a matter of statutory construction, respondent's prior 

juvenile adjudication for theft constitutes a prior theft conviction for purposes of section 16-

1(b)(2) that would allow for the elevation of the current theft charges from misdemeanor to 

felony theft charges.

¶ 8 Our supreme court considered a similar issue in Taylor. See Taylor, 221 Ill. 2d at 159. 

In the Taylor case, a 16-year-old defendant was charged with attempted escape (720 ILCS 5/31-

6(a) (West 1998)) and certain other related offenses for escaping from his cell at a juvenile 

temporary detention center in Cook County. Taylor, 221 Ill. 2d at 159-60. The defendant's case 

was transferred to adult court. Id. One of the elements of the attempted escape charge that the 

State had to prove was that at the time of the attempted escape, the defendant was a person who 

had been convicted of a felony. Id. at 160-61, 163. To prove that element, the State presented 

evidence that the defendant had been previously adjudicated delinquent for robbery and had been 

committed to the juvenile division of the Department of Corrections and was awaiting transfer to 

a facility when the escape occurred. Id. at 160. After the defendant was convicted of attempted 

escape and sentenced, he appealed. Id. The appellate court reversed defendant's conviction, 

concluding that the defendant's prior felony juvenile delinquency adjudication was not a prior 

felony conviction for purposes of the escape statute. Id. at 160-61. On appeal from the State, the 

supreme court found that because of the differences involved in a juvenile proceeding and an 

adult proceeding and because of the safeguards necessary before an adult may be convicted of a 

felony, a prior juvenile delinquency adjudication for a felony offense did not constitute a prior 

felony conviction for purposes of the escape statute. Id. at 163-82.
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¶ 9 In the present case, however, unlike in Taylor, a prior conviction is not an element of the 

two theft offenses of which respondent was adjudicated delinquent. See 720 ILCS 5/16-1(b)(2) 

(West 2010); Illinois Pattern Jury Instructions, Criminal, No. 13.05, Committee Note (4th ed. 

2000). In fact, the theft statute specifically indicates that the prior conviction is not an element 

of the offense. See 720 ILCS 5/16-1(b)(2) (West 2010). Thus, while we recognize the 

similarities between Taylor and the instant case, we do not believe that Taylor controls here or 

that it requires that respondent's current adjudications be found void. Rather, we believe that the 

appropriate result is for the juvenile adjudications to be reduced from felony theft offenses to 

misdemeanor theft offenses. See People v. Kelly, 66 Ill. App. 2d 204, 208-12 (1965) (where the 

value of the stolen property in a theft case was not proven to be over $150 and the value was not, 

at that time, an element of the offense but, rather, was only determinative of the proper range of 

punishment, the appropriate remedy was for the court to reduce the punishment involved to a 

level appropriate for a theft in which the value of the stolen property did not exceed $150). 

Therefore, we remand this case for the trial court to amend its prior orders to reflect that 

respondent has been adjudicated delinquent for two counts of misdemeanor theft in the instant 

case, rather than two counts of felony theft. The trial court is also required to vacate its 

dispositional order committing respondent to the DOJJ, which is not an authorized disposition 

for misdemeanor offenses in a juvenile case (see 705 ILCS 405/5-710(1)(b) (West 2010)), and to 

hold a new dispositional hearing to determine the appropriate disposition for respondent in this 

case based upon the two misdemeanor theft charges.

¶ 10 CONCLUSION

¶ 11 For the foregoing reasons, the judgment of the circuit court of Peoria County is vacated in 

part and the case is remanded with directions.
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¶ 12 Vacated in part and remanded with directions.