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In re F.G.

Case Date: 12/27/2000
Court: 1st District Appellate
Docket No: 1-97-0682 Rel

FOURTH DIVISION
DECEMBER 28, 2000


1-97-0682

In re F.G., a Minor,
(THE PEOPLE OF THE STATE OF ILLINOIS,

                    Plaintiff-Appellee,

                         v.

F.G., a Minor,

                    Defendant-Appellant).

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)		 Appeal from the
Circuit Court of
Cook County.




Honorable
Stuart F. Lubin,
Judge Presiding.


PRESIDING JUSTICE HARTMAN delivered the opinion of the court:

Following a bench trial, defendant was found delinquent on the basis of his having been foundaccountable for and guilty of first-degree murder and aggravated battery with a firearm. The circuit courtcommitted defendant to the custody of the Department of Corrections, Juvenile Division, until his 21stbirthday, pursuant to Public Act 88-680, commonly known as the Safe Neighborhoods Act (705 ILCS 405/5-33(1.5) (West 1996)), which mandated a five year sentence. Subsequent to defendant's sentencing, inPeople v. Cervantes, 189 Ill. 2d 80, 723 N.E.2d 265 (1999) (Cervantes), the Illinois Supreme Court declaredthe Safe Neighborhoods Act unconstitutional and, therefore, void ab initio. Defendant appeals hisdisposition, alleging that because the Safe Neighborhoods Act was held void ab initio, he should receive anew sentencing hearing under the statute in effect prior to the Safe Neighborhoods Act. For reasons whichfollow, we agree.

Defendant raises as issues on appeal whether (1) he should be provided a resentencing hearingunder the statute existing prior to Public Act 88-680; and (2) the State's argument for application of themandatory commitment period under Public Act 90-590, the law in effect during the pendency of defendant'sappeal, would violate ex post facto principles.

In the evening of December 26, 1995, defendant rode as a passenger in a vehicle driven by hisfriend, Jesus Lopez. At 105th Street in Chicago, Lopez and defendant encountered another vehicle filledwith rival gang members who flashed gang signs and shot at them. Defendant and Lopez escapedunharmed and returned to defendant's house, where defendant, Lopez and Israel Trevino, another friendof defendant, discussed the shooting. Trevino revealed he had a revolver. They decided to drive back tothe area of the shooting and seek out rival gang members to shoot at in retaliation. Lopez drove the vehiclewith defendant and Trevino as passengers. At the corner of 107th and Mackinaw Streets, defendant, Lopezand Trevino approached a large group of people standing outside, believing them to be members of the rivalgang. In actuality, the crowd of people had gathered to memorialize a family member who had died in anearlier shooting at that location. As they drove by, Trevino fired three shots into the crowd. Sergio Marin diedafter receiving a bullet wound to the back. Two of Marin's aunts, Yolanda and Theresa Carrillo, were injuredin the shooting. After the shooting, Defendant, Lopez and Trevino fled to a liquor store, bought beer andreturned to defendant's home.

By petition for a finding of delinquency, defendant was charged with being accountable for first-degree murder and aggravated battery with a firearm. The State unsuccessfully moved to have defendanttried as an adult. Defendant then moved to suppress statements he made to police after his arrest. Duringthe hearing on the motion to suppress, a psychologist testified that defendant had an IQ of 65 and thereforecould not understand the Miranda warnings. The circuit court denied the motion after concluding that thepsychologist's findings were not credible.

A bench trial was conducted on November 18, 1996 and the circuit court adjudicated defendantdelinquent on all charges. On January 8, 1997, the court denied defendant's motion for a new trial andcommitted him to custody of the Department of Corrections, Juvenile Division, until his 21st birthday. Defendant filed a timely notice of appeal.

I

The issues in the instant case involve questions of law entirely; therefore, the standard of reviewis de novo. People v. Saunders, 288 Ill. App. 3d 523, 525, 680 N.E.2d 790 (1997).

As earlier noted, the circuit court committed defendant to custody of the Department of Corrections,Juvenile Division, pursuant to Public Act 88-680 (Pub. Act 88-680, eff. January 1, 1995), the SafeNeighborhoods Act (705 ILCS 405/5-33(1.5) (West 1996)),(1) which imposed a mandatory minimumcommitment of five years after a finding of delinquency on the basis of first degree murder. Prior to January1, 1995, a minor found delinquent for first degree murder was subject to commitment with no mandatoryminimum sentence. See 705 ILCS 405/5-33 (West 1992).(2) In Cervantes, the Illinois Supreme Court heldthat the Safe Neighborhoods Act violated the single subject clause of the Illinois Constitution. Ill. Const.1970, art. IV,