Opinion
No. 1-14-3398
02-01-2018
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TYWON JONES, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County.
No. 13 CR 9710
Honorable Charles P. Burns, Judge Presiding.
JUSTICE McBRIDE delivered the judgment of the court.
Presiding Justice Burke and Justice Howse concurred in the judgment.
ORDER
¶ 1 Held: (1) Defendant was proven guilty of armed robbery beyond a reasonable doubt where the trial court assessed credibility and reviewed the identification testimony under Neil v. Biggers, 409 U.S. 188 1972), and the court considered the circumstantial evidence that defendant possessed a firearm during the commission of the offense; (2) defendant has not established an equal protection violation based on section 5-120 of the Juvenile Court Act; (3) under People v. Hunter, 2017 IL 121306, neither section 5-130 of the Juvenile Court Act nor section 5-4.5-105 of the Code of Corrections are retroactive in defendant's case; and defendant is not entitled to any additional presentence credit.
¶ 2 Following a bench trial, defendant Tywon Jones, who was 17 years old at the time of the offense, was found guilty of armed robbery and subsequently sentenced to a term of 22 years in
prison. Defendant appeals, arguing that: (1) he was not proven guilty beyond a reasonable doubt where the victim's description of the height and weight of the offender differed significantly from defendant's height and weight; (2) the State failed to establish that an actual firearm was used and his conviction should be reduced to robbery; (3) defendant is entitled to a discretionary transfer hearing where an amendment to section 5-130 of the Juvenile Court Act (705 ILCS 405/5-130 (West 2016)) removed armed robbery from the listed excluded offenses, and such change was procedural and should be applied to cases pending on direct appeal; (4) the exclusion of 17-year-olds charged with felonies under the former version of section 5-120 of the Juvenile Court Act of 1987 (Juvenile Court Act) (705 ILCS 405/5-120 (West Supp. 2013)) violates equal protection; (5) defendant should get the benefit of resentencing under section 5-4.5-105 of the Code of Corrections (730 ILCS 5/5-4.5-105 (West 2016)) which granted discretion in the imposition of firearm enhancements for defendants under 18; and (6) defendant is entitled to a reduction in the assessment of fees and fines.
¶ 3 On May 5, 2013, defendant was arrested and subsequently charged with one count of armed robbery and one count of aggravated unlawful restraint based on the robbery committed against Jerry Weatherby that night.
¶ 4 The following evidence was admitted at defendant's February 2014 bench trial.
¶ 5 Jerry Weatherby testified that at approximately 10:10 p.m. on May 5, 2013, he was in the area of 530 South Springfield Avenue after having bought food at Maxwell's to take to his girlfriend's house. Weatherby was walking across the bridge over Interstate 290 when he was approached by a group of men. They asked Weatherby if he had a lighter, and Weatherby answered no. As they passed Weatherby, one individual put a gun to Weatherby's stomach and said, "Don't move." He stated that there were more than two individuals involved.
¶ 6 Weatherby identified defendant as the individual who put the gun to his stomach. Weatherby testified that he was standing "almost face to face" with defendant. He said that defendant was not wearing a mask and his face was not obstructed. Weatherby described defendant's hair as "braids or dread" or a "twist in his hair." He also stated that he observed that one of defendant's front teeth was chipped. Weatherby testified that the gun was silver. He said he remained "still" after he was told not to move. While defendant held the gun to his stomach, Weatherby stated that the other individuals took items from his pockets and his hands. The men took his iPhone, wallet, and his food.
¶ 7 After the men went through his pockets, they went south and Weatherby went north on Springfield. He went to his girlfriend's house, which was on the other side of the bridge, and he called the police. He provided a description of defendant. Approximately five to ten minutes later, he was contacted by the police. He was told they would call if they found a match. Weatherby went home. He was contacted by the police again and later transported to an alley to identify a suspect. When he got to the alley, Weatherby first saw defendant inside a squad car. Weatherby remained in a squad car, but defendant was taken out of the squad car. Weatherby identified defendant as the individual who put the gun to his stomach. He stated that he was approximately 18 feet from defendant during the identification. He denied that he identified defendant because defendant was in the squad car or that the police had him in custody. When asked why did he pick defendant, Weatherby answered, "Because he matched the description." Weatherby said he recognized defendant's face from the bridge. He stated that defendant had chipped teeth and his hair was in dreads.
¶ 8 On cross-examination, Weatherby stated that the robbery occurred in "about one minute." Weatherby admitted that his initial description to 911 was a black male, age 18, 5'5", and 140
pounds with a dark complexion. He did not remember if he told the 911 operator that the perpetrator had dreads or a chipped tooth. Weatherby agreed that he was 5'7" and 160 pounds.
¶ 9 The parties then entered a stipulation. Officer Serrano, if called to testify, would testify that he responded at approximately 10:36 p.m. on May 5, 2013, to a robbery call. He was given a description of the offender with a firearm and observed an individual he would identify as defendant eastbound on Lexington near Pulaski. As they approached defendant for a field interview, defendant looked toward the officers and fled on foot through a gangway and then a vacant lot on Lexington. Officer Serrano radioed defendant's direction of travel to other officers on that beat. Officer Serrano never spoke to Weatherby at any point.
¶ 10 Officer Chris Maksud testified that at approximately 10:30 p.m. on May 5, 2013, he was on patrol in uniform in a marked squad car with a partner. He responded to a call for an armed robbery in the 500 block of South Springfield on the overpass of Interstate 290. As they were traveling to that location, he heard Officer Serrano's report that an individual who matched the description had been observed. They then proceeded to 3900 West Flournoy. They exited the vehicle and began to check the yards. Officer Maksud observed defendant "concealing himself in between the fence and the building" by "laying on the ground." Officer Maksud ordered defendant to keep his hands where the officer could see them, and defendant was then placed in handcuffs. Officer Maksud identified defendant in court as the individual observed in the yard. Officer Maksud observed that defendant's front tooth was chipped.
¶ 11 Officer Maksud testified that Weatherby came to the scene. Initially when Weatherby arrived, defendant was in a squad car, but he was subsequently removed from the car. Weatherby identified defendant. Defendant was then placed under arrest. Nothing was recovered during a custodial search of defendant. Officer Maksud later learned that defendant resided at 4718 West
Erie, which was not located near 3918 West Flournoy. 3918 West Flournoy was located half a block to a block from 530 South Springfield.
¶ 12 On cross-examination, Officer Maksud testified that the initial description of the suspect was black male, age 18, 5'5", approximately 140 pounds, and a dark complexion. He could not recall if the initial description included that the individual had dreadlocks, but he said that "at some point that was transmitted over the radio." Officer Maksud also stated that they were told over dispatch that the suspect had a chipped tooth. He admitted that his report did not indicate that defendant was laying on the ground or concealing himself between a house and a fence. Officer Maksud did not have any contact with Weatherby prior to participating in the search. Officer Maksud testified that as part of defendant's processing at the police station, his height was determined to 6'1" and he weighed approximately 183 pounds. He also stated that defendant had an active warrant at the time of his arrest. On redirect, Officer Maksud testified that defendant was a black male, 17 years old, with a dark complexion, and dreadlocks.
¶ 13 Following Officer Maksud's testimony, the State rested. Defendant moved for a directed finding, which the trial court denied.
¶ 14 Defendant presented a stipulation that if called to testify, an employee of the Office of Emergency Management, identified by call number C 549510, would testify that he received a call at the 911 call center from a person identifying himself as Jerry Weatherby at approximately 10:36 p.m. on May 5, 2013, regarding a robbery that had just occurred at 3899 West Congress Parkway. The employee would also testify that he was given a description of the suspect involved in the robbery as "a male black 18 years of age, height 5-5, weighing 140 pounds, dark complexion with a silver pistol" who fled southbound on Springfield. This description was sent to the police through radio dispatch.
¶ 15 Following closing arguments, the trial court found defendant guilty of both armed robbery and aggravated unlawful restraint. Defendant filed a motion for a new trial, which the court denied. The trial court subsequently sentenced defendant to 7 years for the armed robbery with an additional 15 years for the firearms enhancement, for a total of 22 years. Defendant moved to reconsider the sentence, which the trial court denied.
¶ 16 This appeal followed.
¶ 17 Defendant first argues that the State failed to prove defendant guilty beyond a reasonable doubt. Specifically, defendant contends that the discrepancies and the omission of dreadlocks and a chipped tooth in Weatherby's initial description of the suspect show that Weatherby's identification of defendant is unreliable and insufficient to support his conviction.
¶ 18 When this court considers a challenge to a criminal conviction based upon the sufficiency of the evidence, it is not our function to retry the defendant. People v. Hall, 194 Ill. 2d 305, 329-30 (2000). Rather, our inquiry is limited to "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Emphasis in original.) Jackson v. Virginia, 443 U.S. 307, 319 (1979); accord People v. Cox, 195 Ill. 2d 378, 387 (2001). It is the responsibility of the trier of fact to "fairly *** resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Id.
¶ 19 The reviewing court must carefully examine the record evidence while bearing in mind that it was the fact finder who saw and heard the witnesses. People v. Cunningham, 212 Ill. 2d 274, 280 (2004). Testimony may be found insufficient under the Jackson standard, but only where the record evidence compels the conclusion that no reasonable person could accept it beyond a reasonable doubt. Id. However, the fact a judge or jury did accept testimony does not
guarantee it was reasonable to do so. Reasonable people may on occasion act unreasonably. Therefore, the fact finder's decision to accept testimony is entitled to great deference but is not conclusive and does not bind the reviewing court. Id. Only where the evidence is so improbable or unsatisfactory as to create reasonable doubt of the defendant's guilt will a conviction be set aside. Hall, 194 Ill. 2d at 330.
¶ 20 To prove a defendant guilty of armed robbery, the State was required to prove that defendant knowingly took property from the person or presence of another by the use of force or by threatening the imminent use of force while armed with a firearm. 720 ILCS 5/18-2(a)(2) (West 2012). Defendant challenges his conviction based on the strength of Weatherby's initial description. It is undisputed that the initial description stated that the suspect was 5'5" and 140 pounds, but defendant was 6'1" and approximately 180 pounds at the time of offense. Weatherby identified defendant in the showup within an hour of the robbery and also in court during his testimony.
¶ 21 "The State bears the burden of proving beyond a reasonable doubt the identity of the person who committed the charged offense." People v. Lewis, 165 Ill. 2d 305, 356 (1995). The testimony of a single witness, if it is positive and the witness credible, is sufficient to convict. People v. Smith, 185 Ill. 2d 532, 541 (1999). Illinois courts consider identification testimony under the factors set forth by the Supreme Court in Neil v. Biggers, 409 U.S. 188 (1972). Id. Those factors include: "(1) the opportunity the victim had to view the criminal at the time of the crime; (2) the witness' degree of attention; (3) the accuracy of the witness' prior description of the criminal; (4) the level of certainty demonstrated by the victim at the identification confrontation; and (5) the length of time between the crime and the identification confrontation." Id.
¶ 22 Defendant had a bench trial and in its findings, the trial court explicitly detailed the Biggers factors in evaluating the evidence and Weatherby's identification. The court found Weatherby to be a "credible witness." The court noted that there was no "delayed outcry," as Weatherby immediately reported the robbery to the police. The court further noted that defendant did not have any of the proceeds from the robbery on his person, nor was the firearm recovered. The court acknowledged that defense counsel made "a very strong argument" regarding Weatherby's "misdescription" of the offender. The court continued to make a detailed finding regarding Weatherby's identification.
"Mr. Weatherby stated that he *** was very close to him. He had an opportunity to see him, see the offender, had an opportunity to see him closely. He did not testify or was evasive with regard to the fact that he was able to see the offender's face that had the weapon on him.
The second factor is the witness' degree of attention at the time of the offense. Obviously we don't have a situation where the victim is confronted from behind, where the eyewitness or the victim was unable to actually see what was going on. I believe the witness' degree of attention was very succinct at that point in time according to his testimony.
The witness' earlier description of the offender which is argued very persuasively by [defense counsel] that the identification is off—the description is off. But there [are] many factors in the description that are, in fact, corroborated. The dark
complexion of this defendant, and I will note he is dark complected.
The fact that he had dreads or a twist. While it may not have been contained in any simulcast, I do find the witness to be credible with the fact that that's what the offender had and that's what he told the police officer. The chipped tooth also. The age of the offender all are very detailed, and again, they are similar to the identity of this particular defendant.
The next factor *** is the level of certainty shown by the witness when confronting the defendant. The victim identifies this individual immediately. It does not appear that he is waffling either at the time on the scene or at trial. I had an opportunity to look at his testimony, to view him, to look at his demeanor while he testified, and he did not waiver at all in the identification.
The last circumstance is the length of time between the offense and the identification confrontation. Again, this is probably somewhere between 20 minutes to maybe 40 minutes. It is not over several days. It is not over several months. It is at or near the time of the offense."
¶ 23 The trial court further found "the testimony of the victim to be credible," but stated that it did "take into consideration that the height and weight is off." The court concluded that "the identification is clear, convincing, and beyond a reasonable doubt. I do believe that the State has proven the identity of this defendant without question and beyond a reasonable doubt."
"While this is a single eyewitness, it is a very, very strong eyewitness with no axe to grind, no infirmities with regard to identification, and I believe as I stated before the identification is very convincing to me, and it is proof beyond a reasonable doubt."
¶ 24 When we consider all the evidence in the light most favorable to the State, we conclude that a rational trier of fact could find defendant guilty beyond a reasonable doubt. Defendant strongly challenged Weatherby's identification before the trial court. The court weighed this argument against the evidence to reach its verdict. The court explicitly weighed the Biggers factors in reaching its verdict. It considered the credibility on Weatherby's testimony. We find the trial court's analysis to be extremely thoughtful of the issue and well reasoned. As we have stated above, the testimony of a single, credible eyewitness is sufficient to sustain a conviction. "In assessing identification testimony, we will not substitute our judgment for that of the trier of fact on questions involving witness credibility." People v. Negron, 297 Ill. App. 3d 519, 530 (1998). We will not substitute our judgment for the trial court. Accordingly, defendant's challenge to the sufficiency of the evidence fails.
¶ 25 Next, defendant asserts that his conviction should be reduced to robbery because the State failed to establish that an actual firearm was used in the offense. The State maintains that the evidence was sufficient to prove that the firearm used during the commission of the robbery was a real gun.
¶ 26 As we previously stated, when this court considers a challenge to a criminal conviction based upon the sufficiency of the evidence, it is not our function to retry the defendant. Hall, 194 Ill. 2d at 329-30), instead our inquiry is limited to "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt" (emphasis in original) Jackson, 443 U.S. at 319)).
¶ 27 The evidence at trial was that Weatherby was walking on the bridge over Interstate 290 when he was approached by several men. He was asked if he had a lighter, and he responded no. Then defendant put a silver gun to Weatherby's stomach and said, "Don't move." The other men proceeded to rob Weatherby. Weatherby testified that the gun was held to his stomach throughout the commission of the crime, which lasted one minute. The gun was never recovered.
¶ 28 Defendant argues that Weatherby was "not shown to have any expertise in the visual identification of firearms and no weapon was discharged or recovered." According to defendant, the State failed to establish beyond a reasonable doubt that the silver item pointed at Weatherby was a "true firearm."
¶ 29 Section 2-7.5 of the Criminal Code of 1961 (Code) (720 ILCS 5/2-7.5 (West 2012)) provides that the term " 'firearm' has the meaning ascribed to it in Section 1.1of the Firearm Owners Identification Card Act" (FOID Act) (430 ILCS 65/1.1 (West 2012)). The FOID Act defines a firearm as: "any device, by whatever name known, which is designed to expel a projectile or projectiles by the action of an explosion, expansion of gas or escape of gas." 430 ILCS 65/1.1 (West 2012). The definition specifically excludes any pneumatic, spring, paint ball or BB gun and assorted other devices. Id. Defendant argues the State did not prove that the "gun" Weatherby testified was put to his stomach during the robbery met this definition of a firearm or did not fall under any of the exceptions.
¶ 30 Illinois courts have consistently addressed the issue of the sufficiency of the evidence from which a trier of fact may infer that an object used in a crime was a firearm. In People v. Ross, 229 Ill.2d 255, 273-76 (2008), the supreme court rejected a presumption that an object
appearing to be a handgun is a loaded and operable firearm, instead finding that a trier of fact may infer from trial evidence that an object was a firearm. Ultimately, the supreme court concluded that the evidence was insufficient to prove that the "gun" used by the defendant was a dangerous weapon because evidence was presented that the gun was actually a small BB gun, with only a three-inch barrel, which was not presented into evidence so there could be no inference the weapon could be used as a bludgeon. Id. at 276-77.
¶ 31 Following Ross, reviewing courts have held that unequivocal eyewitness testimony that a defendant held a gun is sufficient circumstantial evidence that he or she was armed with a firearm, and the State need not prove with direct or physical evidence that a particular object is a firearm as defined by statute. People v. Clark, 2015 IL App (3d) 140036, ¶¶ 20-29; People v. Fields, 2014 IL App (1st) 110311, ¶¶ 34-37; People v. Toy, 407 Ill.App.3d 272, 286-93 (2011).
¶ 32 More recently, the supreme court revisited this issue in People v. Washington, 2012 IL 107993, ¶ 1, where the court considered whether the State presented sufficient evidence the defendant possessed a "dangerous weapon." The court acknowledged amendments to the Code that took effect January 1, 2000, and which created "substantively distinct offenses based on whether the offenses were committed with a dangerous weapon *** or committed with a 'firearm.' " Id. ¶ 6. The defendant in that case had been charged under the preamendment statutes, which required the State to prove the offenses were committed "while armed with a dangerous weapon." Id. ¶ 9. In distinguishing the case from Ross, the supreme court observed that the victim "had an unobstructed view of the weapon defendant had in his possession during the commission of the crimes. He testified that it was a gun." Id. ¶ 35. The court concluded that given the victim's "unequivocal testimony and the circumstances under which he was able to
view the gun, the jury could have reasonably inferred that defendant possessed a real gun." Id. ¶ 36.
¶ 33 Defendant asserts that the holding in Washington is "of little value here" because the supreme court considered the preamendment statutory definition of a firearm. The statute to which the jury in Washington had to apply the facts is of less significance than the reasonable inference the Washington court found the jury could find from the testimony of a single credible witness. The Washington court did not find the testimony of a single credible witness sufficient because the testimony went to prove a less-specific definition of a dangerous weapon; rather, the Washington court found the testimony sufficient evidence the object was a dangerous weapon because a single credible witness testified the object was a "gun" and the trier of fact could reasonably infer it was a "real gun." See Fields, 2014 IL App (1st) 110311, ¶ 36 ("While this statutory definition [of firearm] excludes some specific types of firearms, the term 'firearm' is defined broadly, including 'any device, by whatever name known, which is designed to expel a projectile or projectiles by the action of an explosion, expansion of gas or escape of gas.' [Citations.] Thus, contrary to [the defendant's] assertion that the State must prove the gun is a firearm by direct or physical evidence, unequivocal testimony of a witness that the defendant held a gun is circumstantial evidence sufficient to establish that a defendant is armed during a robbery."). "An inference is a factual conclusion that can rationally be drawn by considering other facts. [Citations.]" (Internal quotation marks omitted.) People v. Moore, 365 Ill.App.3d 53, 58 (2006). "Where the evidence presented is capable of producing conflicting inferences, it is best left to the trier of fact for proper resolution. [Citation.]" Id. In Washington, our supreme court found that one such reasonable inference was that an object was a "real gun." Id. ¶ 36.
Washington clearly stands for the proposition that the unequivocal testimony of a lay witness given after a sufficient opportunity to observe is enough evidence from which a reasonable trier of fact may infer an object is "a real gun." Id.
¶ 34 Here, the trial court had the opportunity to address this question which defendant raised in his closing argument. The trial court found,
"The victim - while the victim did not break down the make and model of the weapon, I believe the witness did, in fact succinctly and adequately describe that the weapon that was brandished on him was, in fact, a firearm. The weapon was placed in the [victim's] stomach at that point in time."
¶ 35 We agree with the trial court's conclusion that the evidence was sufficient to support a finding that defendant possessed a firearm during the commission of the robbery beyond a reasonable doubt.
¶ 36 Next, defendant asserts that the exclusion of 17-year-olds charged with felonies under the former section of 5-120 of the Juvenile Court Act (705 ILCS 405/5-120 (West 2012)) violates the equal protection clause because all children under 18 are categorically different than adults and there is no rational basis for treating 17-year-olds differently than other minors.
¶ 37 Statutes are presumed constitutional and the party challenging a statute's validity bears the burden of demonstrating a clear constitutional challenge. People v. Richardson, 2015 IL 118255, ¶ 8. We will uphold the constitutionality of a statute whenever reasonably possible. Id. In conducting an equal protection analysis, the reviewing court applies the same standards under both the United States Constitution and the Illinois Constitution. Id. ¶ 9. "The constitutional right to equal protection guarantees that similarly situated individuals will be treated in a similar
manner, unless the government can demonstrate an appropriate reason to treat them differently." Id. "The equal protection clause does not forbid the legislature from drawing proper distinctions in legislation among different categories of people, but it does prohibit the government from doing so on the basis of criteria wholly unrelated to the legislation's purpose." Id. "When an equal protection claim challenges a legislative classification, such as the saving clause here, that classification ' "must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation." ' " Id. (quoting People v. Watson, 118 Ill. 2d 62, 67 (1987), quoting Eisenstadt v. Baird, 405 U.S. 438, 447 (1972)). "Further, when the legislative classification does not affect a fundamental right or discriminate against a suspect class, such as here, we apply a rational basis scrutiny and consider whether the challenged classification bears a rational relationship to a legitimate governmental purpose." Id. (citing People v. Masterson, 2011 IL 110072, ¶ 24). Our review of a statute's constitutionality is de novo. Id.
¶ 38 Defendant attempts to distinguish his argument from the equal protection argument rejected by the Illinois Supreme Court in Richardson, 2015 IL 118255. In that case, the supreme court considered whether the savings clause of the newly amended section 5-120 violated equal protection because it excluded 17-year-olds who allegedly committed offenses prior to the amendment's effective date. The 2014 amended version of section 5-120 extended the juvenile court jurisdiction to any minor under age 18. See 705 ILCS 405/5-120 (West 2014). While defendant contends that his argument is different than that raised in Richardson, any distinction is marginal and both arguments present the same challenge, that the prior version of section 5-120 treated 17-year-olds charged with crimes differently than other minors.
¶ 39 On appeal, the Supreme Court reasoned:
"Here, we find that the challenged legislative classification, the amendment's saving clause, is rationally related to the legislature's goal of including 17-year-olds within the jurisdiction of the Juvenile Court Act. We have previously recognized that neither the fourteenth amendment nor the Illinois Constitution prevents statutes and statutory changes from having a beginning, nor does either prohibit reasonable distinctions between rights as of an earlier time and rights as they may be determined at a later time. Braeburn Securities Corp. v. Smith, 15 Ill. 2d 55, 62 (1958); see also Sperry & Hutchinson Co. v. Rhodes, 220 U.S. 502, 505 (1911) (the fourteenth amendment does not forbid statutes and statutory changes to have a beginning and from distinguishing between the rights of an earlier and later time). The saving clause reasonably achieves the amendment's purpose of including 17-year-olds within the jurisdiction of the Juvenile Court Act because it does so in such a manner that avoids confusion and delay and also preserves judicial resources. By limiting the amendment's application to violations or attempted violations committed on or after the effective date, an accused, as well as the courts, are on notice as to whether the Juvenile Court Act will apply in certain proceedings. The saving clause also ensures that cases already in progress would not have to restart in the juvenile division of the court and that defendants could not manipulate or delay their
proceedings to take advantage of the amendment's effective date. We acknowledge that statutory amendments which apply to some but not to others may appear unfair to a certain extent. This is particularly true with ameliorative amendments such as the amendment here. Nevertheless, statutory changes must have a beginning. The simple fact that the saving clause precludes the amendment from applying to some 17-year-olds such as defendant does not defeat its constitutionality. Here, the legislature's chosen effective date bears a rational relationship to the legislature's goal of extending the exclusive jurisdiction provision of the Juvenile Court Act." Id. ¶ 10.
¶ 40 The court concluded that "it was reasonable for the legislature to distinguish between offenses committed before and offenses committed after the amendment's effective date since applying the amendment to offenses committed before the effective date would require those cases to be transferred to the juvenile division and to begin anew. We find that defendant has not met his burden of establishing an equal protection violation." Id. ¶ 11.
¶ 41 We reach the same conclusion as to defendant's argument in the present case. At the time of the commission of the armed robbery, defendant was 17 years old and was not subject to the juvenile court's jurisdiction under section 5-120 and was required to be tried as an adult in criminal court. See 705 ILCS 405/5-120 (West 2012). The legislative purposes of the Juvenile Court Act are to "protect citizens from juvenile crime" and to "hold each juvenile offender directly accountable for his or her acts." 705 ILCS 405/5-101(1)(a), (b) (West 2012). Further, the juvenile justice policy goals under the Juvenile Court Act included, "[h]old[ing] minors
accountable for their unlawful behavior and not allow[ing] minors to think that their delinquent acts have no consequence for themselves and others." 705 ILCS 405/5-101(2)(j) (West 2012). Thus, section 5-120 at the time of defendant's offense bears at least a reasonable relationship to those legislative purposes and policies because it reflects a distinction between the ability of older juveniles to appreciate the consequences of their acts compared to younger juveniles. Although drawing the line at 17 can generate objections of the type presented here, it is well-established that the guarantee of equal protection does not "deny a State the power to draw lines that treat different classes of persons differently." People v. Reed, 148 Ill. 2d 1, 7 (1992); see also People v. Mathey, 99 Ill. 2d 292, 300 (1983) ("It is not, however, for this court to prescribe what the dividing lines should be in distinguishing offenses. That obviously is a legislative function. The judicial function is only to decide whether *** the enactment is irrational."). The legislature's subsequent amendment of section 5-120 of the Juvenile Court Act does not demonstrate that the prior version violated equal protection simply because it treated 17-year-olds differently. Since the preamended version of section 5-120 was not arbitrary and bore some reasonable relationship to the pursuit of a legitimate state interest, defendant's equal protection argument fails.
¶ 42 Defendant also argues that he was entitled to a discretionary transfer hearing where an amendment to section 5-130 of the Juvenile Court Act (705 ILCS 405/5-130 (West 2016)) removed armed robbery from the listed excluded offenses, and such change was procedural and should be applied retroactively to cases pending on direct appeal, and that he should get the benefit of resentencing under section 5-4.5-105 of the Code of Corrections (730 ILCS 5/5-4.5-105 (West 2016)), which granted discretion in the imposition of firearm enhancements for defendants under 18. On rehearing, defendant conceded that under section 5-120 in effect at the
time of the offense, he was not permitted to be charged as a juvenile in this case "regardless of whether the recent amendment of section 5-130 applies retroactively." However, we need not reach either of defendant's arguments because the Illinois Supreme Court recently held that neither section 5-130 of the Juvenile Court Act nor section 5-4.5-105 of the Code of Corrections are retroactive. People v. Hunter, 2017 IL 121306.
¶ 43 In Hunter, the supreme court found that the amendment to section 5-130 was procedural, but distinguished the holding in its decision in People ex rel. Alvarez v. Howard, 2016 IL 120729, where the supreme court concluded that the amendment to section 5-130 were retroactive to "pending cases." The Hunter court clarified its opinion in Howard, where the amendments were passed while the case was pending in the trial court, but the defendant's proceedings in the trial court had concluded before the amendment, as is true in the present case. Hunter, 2017 IL 121306, ¶ 32. "Because Hunter's trial court proceedings have been concluded, and no further trial court proceedings are necessitated by reversible error, applying the amended statute retroactively to Hunter's case would result in this court effectively creating new proceedings for the sole purpose of applying a procedural statute that postdates his trial and sentence." Id. ¶ 33.
¶ 44 The court in Hunter also rejected the retroactive application because "new procedural rules only apply to ongoing proceedings 'so far as practicable.' 5 ILCS 70/4 (West 2016)." Id. ¶ 37. The court held that it was not practicable to apply the new procedural rules in that case as the amendment did not become effective until the defendant's trial proceedings were concluded and the appeal was pending, no reversible error necessitated remand for further proceedings to which the amended statute could apply, and that the defendant was no longer subject to the jurisdiction of the juvenile court making remand impracticable. Id. ¶ 43. Since defendant's appeal was
already pending at the time section 5-130 was amended, such amendment would not apply retroactively in defendant's case.
¶ 45 The Hunter court also rejected defendant's argument that section 5/5-4.5-105 applies retroactively. The supreme court noted that the language of subsection (a) limited its temporal reach, and the trial court's obligation set forth in that subsection to consider additional factors in mitigation at sentencing is controlled by the limiting language of the same subsection. Id. ¶ 48.
¶ 46 With respect to subsection (b), the supreme court stated "under section 4 [of the Statute on Statutes], subsection (b) of the new statute cannot apply to [defendants], who were sentenced before the statute took effect. Id. ¶ 52. The court also noted that the defendants made no claim that an error occurred in the trial court which would require vacatur of their sentences and remand for resentencing, thus giving them the option to be sentenced under subsection (b). Id. ¶ 55.
¶ 47 We note that both the trial court and this court are bound by the mandatory sentencing scheme in place at the time defendant's case was pending in the trial court. There is no dispute that the defendant's commission of the armed robbery and his sentencing in this case took place prior to the effective date of January 1, 2016. Since we have rejected defendant's claims of error that could have subjected him to a new sentencing hearing, defendant's claim for a new sentencing hearing fails.
¶ 48 Finally, defendant contends that this court should reduce the fines and fees order to $272 because several assessments were fines and should have been offset by his $5 per day custody credit. Although defendant has forfeited review of his fines and fees claim because he did not challenge the order in a "contemporaneous objection and a written postsentencing motion" (People v. Hillier, 237 Ill. 2d 539, 544 (2010)), defendant argues this argument can be raised
now for the first time under the plain-error doctrine, which permits our review of sentencing errors when they may affect a defendant's substantial rights. People v. Cox, 2017 IL App (1st) 151536, ¶ 102. We review the imposition of fines and fees de novo. People v. Murphy, 2017 IL App (1st) 142092, ¶ 16.
¶ 49 A defendant is entitled to credit of $5 for each day he is incarcerated, with that amount to be applied toward the fines levied against him as part of his conviction. 725 ILCS 5/110-14(a) (West 2014). A "fine" is punitive in nature and is imposed as part of a sentence on a person convicted of a criminal offense. People v. Graves, 235 Ill. 2d 244, 250 (2009). A "fee" is a charge that seeks to recoup expenses incurred by the State in prosecuting the defendant. Id. The legislature's label for a charge is strong evidence of whether the charge is a fee or a fine, but the most important factor is whether the charge seeks to compensate the State for any cost incurred as a result of prosecuting the defendant. Id.
¶ 50 Specifically, defendant argues that (1) the $15 Automation fee (705 ILCS 105/27.3a(1) (West 2014)), (2) the $15 Document Storage fee (705 ILCS 105/27.3c(a) (West 2014)), (3) the $25 Court Services fee (55 ILCS 5/5-1103 (West 2014)), and (4) the $2 State's Attorney Records Automation fee (55 ILCS 5/4-2002.1(c) (West 2014)) constituted fines and should be offset by his presentence credit. The State maintains that each of the assessments were fees and defendant is not entitled to credit.
¶ 51 Section 27.3a(1) of the Act states that the Automation fee provides for "[t]he expense of establishing and maintaining automated record keeping systems in the offices of the clerks of the circuit court." 705 ILCS 105/27.3a(1) (West 2014). Section 27.3c of the Act states that the Document Storage fee provides for "[t]he expense of establishing and maintaining a document storage system in the offices of the circuit court clerks." 705 ILCS 105/27.3c (West 2014).
Section 5-1103 of the Counties Code states that the Court Services fee is "dedicated to defraying court security expenses incurred by the sheriff in providing court services or for any other court services deemed necessary by the sheriff to provide for court security." 55 ILCS 5/5-1103 (West 2014).
¶ 52 This court has previously held that the Automation fee, Document Storage fee, and Court Services fee constitute fees, not fines, as they are "compensatory and a collateral consequence of defendant's conviction." People v. Tolliver, 363 Ill. App. 3d 94, 97 (2006). These charges represent part of the costs incurred for prosecuting a defendant and are, therefore, not fines subject to offsetting presentence custody credit. Graves, 235 Ill. 2d at 250; Tolliver, 363 Ill. App. 3d at 97.
¶ 53 The parties also disagree over whether the $2 State's Attorney Records Automation fee constitutes a "fine" or a "fee." However, this court has repeatedly considered and rejected these arguments, holding that both of these charges constitute fees rather than fines. See People v. Bowen, 2015 IL App (1st) 132046, ¶¶ 62-65. This court found it "is intended to reimburse the State's Attorneys for their expenses related to automated record-keeping systems." People v. Rogers, 2014 IL App (4th) 121088, ¶ 30; see also Murphy, 2017 IL App (1st) 142092, ¶¶ 18-20, Bowen, 2015 IL App (1st) 132046, ¶¶ 62-64; People v. Mister, 2015 IL App (4th) 130180, ¶ 111 (and cases cited therein). Therefore, the $2 charge will stand and because it is a fee, which is not offset by defendant's presentencing credit. See Jones, 397 Ill. App. 3d at 663. In so holding, we recognize that another division of this court has reached the opposite conclusion, and has determined that the State's Attorney automation fee, is a fine (People v. Camacho, 2016 IL App (1st) 140604, ¶ 52), however, we respectfully disagree with that court's conclusion.
¶ 54 Since all the assessments challenged by defendant constituted fees, rather than fines, he is not entitled to have the fees offset by his presentence credit.
¶ 55 Based on the foregoing reasons, we affirm the decision of the circuit court of Cook County.
¶ 56 Affirmed.