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SIXTH DIVISION
March 29, 2002

JUSTICE O'MARA FROSSARD delivered the opinion of the court:

Defendant Alexander Champ was charged with first degree murder and, followinga jury trial, was convicted of involuntary manslaughter and sentenced to fiveyears in prison. Defendant does not contest his conviction for involuntarymanslaughter. The sole issue raised by defendant in this appeal is whether heshould have been sentenced as a juvenile under the Juvenile Court Act of 1987(Act) (705 ILCS 405/1-1 et seq. (West 1996)) rather than as anadult under the Unified Code of Corrections (Code) (730 ILCS 5/5-1-1 et seq.(West 1996)).

As the result of a shooting that occurred on February 1, 1997, the grand juryreturned an indictment charging defendant with first degree murder in that"he without justification shot and killed Michael Hall." The State anddefendant stipulated that defendant was 16 years old at the time of the allegedmurder. Following trial, the jury returned a verdict finding defendant guilty ofinvoluntary manslaughter. Before the sentencing hearing, the State did notrequest, and the trial court did not conduct, a hearing for the purpose ofdetermining whether defendant should be sentenced as an adult under the criminallaws of the State. No agreement was made as to sentence. At the sentencinghearing, the trial court sentenced defendant as an adult under the Code to fiveyears in the Illinois Department of Corrections. After the trial court imposedthe sentence, defendant pleaded guilty to first degree murder in a separate,unrelated case and was sentenced to 50 years in prison to run consecutively tothe 5-year sentence imposed in this case for involuntary manslaughter. Defendantdoes not challenge the 50-year sentence in this appeal, but only challengeswhether he should have been sentenced as an adult on his conviction forinvoluntary manslaughter.

Defendant subsequently filed a motion to reconsider his five-year sentencewhich did not raise the issue presented in this appeal. The trial courtsummarily denied the motion. Defendant contends on appeal that the trial courtdid not comply with a specific provision of the Act which required the trialcourt to sentence him as a juvenile and that the sentence was therefore void.

The State contends that defendant's failure to raise this issue in a writtenpost-sentencing motion waived his right to raise it on appeal. It is wellsettled, however, that a sentence which does not conform to a statutoryrequirement is void (People v. Arna, 168 Ill. 2d 107, 113 (1995)), andthat a void sentence may be attacked at any time. People v. Brazee, 316Ill. App. 3d 1230, 1234 (2000) (defendant's failure to argue in post-sentencingmotion that trial court lacked statutory authority to sentence him as an adultdid not waive his right to raise it on appeal). Accordingly, we find thatdefendant has not waived his claim that he should have been sentenced as ajuvenile. We review defendant's appeal de novo because ourresolution of it requires us to interpret statutory provisions of the Act. Peoplev. Lewis, 325 Ill. App. 3d 435, 436-37 (2001).

Section 5-3 of the Act defines "delinquent minor" as "anyminor who prior to his 17th birthday has violated or attempted to violate ***any federal or state law." 705 ILCS 405/5-3(1) (West 1996) (repealed byPub. Act 90-590, eff. January 1, 1999) (now, as amended, 705 ILCS 405/5-105(3)(West 2000)). Section 5-4(1) of the Act states that "[e]xcept as providedin this [s]ection, no minor who was under 17 years of age at the time of thealleged offense may be prosecuted under the criminal laws of [Illinois]."705 ILCS 405/5-4 (West 1996) (repealed by Pub. Act 90-590, eff. January 1, 1999)(now, as amended, 705 ILCS 405/5-120 (West 2000)). Section 5-4(6)(a) providesthat if a minor is charged with any one of several offenses, including firstdegree murder, and was at least 15 years old at the time of the alleged offense,he must be criminally prosecuted for that offense and all other charges arisingout of it and may not qualify as a "delinquent minor." 705 ILCS405/5-4(6)(a) (West 1996) (repealed by Pub. Act 90-590, eff. January 1, 1999)(now, as amended, 705 ILCS 405/5-130(1)(a) (West 2000)).

Section 5-4(6)(c)(i) provides how a minor should be sentenced followingconviction for an offense listed in section 5-4(6)(a). 705 ILCS 405/5-4(6)(c)(i)(West 1996) (repealed by Pub. Act 90-590, eff. January 1, 1999) (now, asamended, 705 ILCS 405/5-130(1)(c)(i) (West 2000)). Section 5-4(6)(c)(i) statesthat if the minor is convicted of any offense listed in section 5-4(6)(a)including first degree murder, then he shall be sentenced as an adult.

Section 5-4(6)(c)(ii) directs how a minor should be sentenced followingconviction for an offense not listed in 5-4(6)(a) and states in relevant part:

"If *** the minor is only convicted of an offense not covered byparagraph (a) of this subsection (6), the conviction shall not invalidate theverdict or the prosecution of the minor under the criminal laws of the State;however, unless the State requests a hearing for the purpose of sentencing theminor under Chapter V of the Unified Code of Corrections, the Court must proceedunder Sections 5-22 and 5-23 of this Act. Should the State request a hearing itmust do so by written motion within 10 days following the entry of a finding orthe return of a verdict. *** If the motion is made by the State, the court shallconduct a hearing to determine if the request should be granted." 705 ILCS405/5-4(6)(c)(ii) (West 1996) (repealed by Pub. Act 90-590, eff. January 1,1999) (now, as amended, 705 ILCS 405/5-130(1)(c)(ii) (West 2000).

Section 5-4(6)(c)(ii) further provides that in determining how to rule on therequest by the State to sentence the minor as an adult, the trial court"shall" consider several factors at the hearing, including: (1)whether the evidence showed that the offense was committed in an aggressive andpremeditated manner; (2) the minor's age; (3) the minor's previous history; (4)the availability of facilities to the juvenile court or the Department ofCorrections, Juvenile Division, for the minor's treatment and rehabilitation;(5) whether the best interest of the public and the minor require him to besentenced as an adult; and (6) whether the minor possessed a deadly weapon whenhe committed the offense. Defendant concedes he was properly charged andprosecuted on first degree murder as an adult. However, he contends that thetrial court should have sentenced him as a juvenile, not as an adult, because hewas found guilty of involuntary manslaughter. Section 5-4(6)(a) provides forcriminal prosecution when a minor is charged with first degree murder; however,involuntary manslaughter is not an offense covered by section 5-4(6)(a).Defendant contends that because he was convicted of involuntary manslaughter, anoffense not covered by section 5-4(6)(a), the trial court was required undersection 5-4(6)(c)(ii) to sentence him as a juvenile unless the State within 10days of the verdict requested he be sentenced as an adult. Defendant argues thatthe State's failure to request a hearing and the court's failure to conduct ahearing under section 5-4(6)(c)(ii) to determine whether he should be sentencedas an adult require that his five-year sentence for involuntary manslaughter bevacated and his case remanded for resentencing under the Act to time served.

The State concedes that "a [minor] defendant convicted of involuntarymanslaughter would ordinarily not be subject to adult sentencing unless theState filed a motion." The State contends, however, that section 5-4(6)(a)excluded defendant from the Act's jurisdiction and required the trial court tosentence him as an adult because he was charged with murder in a separate,unrelated case at the time his sentence was imposed on the involuntarymanslaughter conviction in this case. In support of this interpretation ofsection 5-4(6)(a), the State argues "[n]othing in the Juvenile Court Actlimits the exclusion to the charges filed in the instant case" and that theintent of the legislature was to protect society from those juveniles chargedwith murder by making them ineligible for sentencing as a juvenile.

When construing a statute, our primary goal is to determine and give effectto the intent of the legislature. People v. Savory, 197 Ill. 2d 203, 212(2001). The best indicator of legislative intent is the language used by thelegislature, and accordingly, we begin our inquiry by reviewing the statutorytext. Savory, 197 Ill. 2d at 212-13. "The statutory language must begiven its plain and ordinary meaning, and when the terms used by the legislatureare clear and unambiguous, it is not necessary to resort to other aids ofconstruction." Savory, 197 Ill. 2d at 213.

The language in the applicable provisions of section 5-4 is clear andunambiguous, and therefore we need look no further to determine whetherdefendant was properly sentenced as an adult. Contrary to the State'scontention, section 5-4(6)(a) of the Act does not require that a minor besentenced as an adult if, at the time of his sentencing, a murder charge ispending against him in a separate, unrelated case. In fact, section 5-4(6)(a)does not address the issue of sentencing. Rather, it addresses the circumstancesunder which a minor should be criminally prosecuted as an adult. Specifically,the section states that if a minor is charged with any one of several offenses,including murder, and he was at least 15 years old at the time of the allegedoffense, he must be criminally prosecuted as an adult for the charged offenseand for all other charges arising out of that offense. Here, consistent withsection 5-4(6)(a), defendant was criminally prosecuted as an adult for firstdegree murder. However, the jury convicted defendant of involuntarymanslaughter, not first degree murder.

Sections 5-4(6)(c)(i) and (c)(ii) address how a minor prosecuted andconvicted pursuant to section 5-4(6)(a) should be sentenced. While defendant wascriminally prosecuted for first degree murder under section 5-4(6)(a), he wasconvicted of involuntary manslaughter. Involuntary manslaughter, unlike firstdegree murder, is not covered by section 5-4(6)(a). Section 5-4(6)(c)(ii)directs how a minor should be sentenced following conviction for an offense notcovered by section 5-4(6)(a). Section 5-4(6)(c)(ii) unambiguously states that ifa minor is convicted of an offense not covered by section 5-4(6)(a), the court"must" proceed under the sentencing provisions of the Act, and mustnot sentence defendant as an adult, unless: (1) the State files a writtenmotion, within 10 days following the entry of the finding or the return of averdict, requesting a hearing for the purpose of determining whether the minorshould be sentenced as an adult; (2) the trial court conducts a hearing on themotion; and (3) the trial court after considering various factors enumerated insection 5-4(6)(c)(ii) determines that the minor should be sentenced as an adult.Here, defendant was convicted of involuntary manslaughter, an offense notcovered by section 5-4(6)(a). Despite his conviction for this offense, the Statedid not file a motion requesting a hearing to determine whether he should besentenced as an adult, and the trial court did not conduct a hearing on theissue; however, defendant was sentenced as an adult.

The trial judge was not given the opportunity to determine whether defendantshould have been sentenced as an adult because the State failed to request sucha hearing. Section 5-4(6)(c)(ii), upon written motion of the State to have thedefendant sentenced as an adult, required the trial court to consider at ahearing several factors, including: (1) whether the evidence showed that theoffense was committed in an aggressive and premeditated manner; (2) the minor'sage; (3) the minor's previous history; (4) the availability of facilities to thejuvenile court or the Department of Corrections, Juvenile Division, for theminor's treatment and rehabilitation; (5) whether the best interest of thepublic and the minor required him to be sentenced as an adult; and (6) whetherthe minor possessed a deadly weapon when he committed the offense. At such ahearing, the trial court would have had an opportunity to consider thesestatutory factors. See People v. Stephens, 323 Ill. App. 3d 345, 351(2001) (the six factors enumerated in the statutes are to be considered"among other matters"). No such hearing to determine whether defendantshould be sentenced as an adult was requested or conducted. At such a hearing,the trial court would have had the opportunity based on the facts of this caseto weigh the need for rehabilitation, served by juvenile detention, against theneed for protection of the community, served by sentencing defendant to an adultfacility.

Here, defendant was not convicted of an offense covered by section 5-4(6)(a)and the State did not request a hearing to determine whether defendant should besentenced as an adult; therefore, section 5-4(6)(c)(ii) required the trial courtto sentence defendant as a juvenile. We note that our finding is consistent withour decision in Brazee.

In Brazee, the defendant minor was charged with aggravated criminalsexual assault, an offense requiring prosecution as an adult under section5-4(6)(a). Brazee, 316 Ill. App. 3d at 1231, 1234. The State dismissedthe aggravated criminal sexual assault count, and the defendant pleaded guiltyto criminal sexual assault, an offense not covered by section 5-4(6)(a). Brazee,316 Ill. App. 3d at 1232. The trial court, however, sentenced defendant as anadult and imposed a sentence of 11 years. Brazee, 316 Ill. App. 3d at1233. The reviewing court held that the defendant should have been sentenced asa juvenile rather than as an adult because the aggravated criminal sexualassault charge was dismissed and the State did not request a hearing for thepurpose of sentencing defendant as an adult. Brazee, 316 Ill. App. 3d at1235. Brazee was sentenced after a plea of guilty, while here, defendant wassentenced after a jury found him guilty of involuntary manslaughter. Thatdifference in no way undermines application of section 5-4(6)(c)(ii). Similar toBrazee, defendant in this case was charged with, but not convicted of, anoffense covered by section 5-4(6)(a) and the State did not request a hearingunder section 5-4(6)(c)(ii) to determine whether defendant should be sentencedas an adult. Furthermore, as in Brazee, here the trial court sentenceddefendant as an adult without conducting a hearing under section 5-4(6)(c)(ii)to determine whether such a sentence would be appropriate.

The State contends that even if it was required to file a motion requestingthe trial court to conduct a hearing to determine whether to sentence defendantas an adult, its failure to do so constituted harmless error. The State arguesthat the trial court's comments and the evidence presented at the sentencinghearing demonstrate that the court would have sentenced defendant as an adulthad the State filed the requisite motion and the trial court conducted a hearingpursuant to section 5-4(6)(c)(ii).

The State's argument mistakenly assumes that a sentencing hearing and ahearing to determine whether a defendant should be sentenced as an adult requirethe trial court to consider the same type of factors and apply those factors forthe same purpose. The factors that the trial court must consider when decidingwhether to sentence a defendant as a juvenile or as an adult are not identicalto those which it must consider when deciding what sentence to impose under theCode. For example, at a hearing to determine whether a defendant should besentenced as an adult, the trial court is required to consider, "whetherthere are facilities particularly available to the Juvenile Court or theDepartment of Corrections, Juvenile Division, for the treatment andrehabilitation of the minor." 705 ILCS 405/5-4(6)(c)(ii) (West 1996)(repealed by Pub. Act 90-590, eff. January 1, 1999) (now, as amended, 705 ILCS405/5-130(1)(c)(i), (c)(ii) (West 2000)). This factor is not listed among thosethe trial court is required to consider when imposing a sentence under the Code(see 730 ILCS 5/5-4-1(a),(b) (West 1996)) and reflects the unique purpose servedby a hearing to determine whether a defendant should be sentenced as an adult oras a juvenile.

Relying upon People v. Arnold, 323 Ill. App. 3d 102 (2001), the Statecontends that "the trial court had the discretion to determine whether tosentence defendant as an a adult," and "[t]he lack of a formal hearingdoes not warrant a reversal, especially when the legislature intended to onlyenhance judiciary discretion." The State's reliance on Arnold ismisplaced.

In Arnold, the defendant pleaded guilty to robbery and attemptedrobbery without disclosing to anyone that he was only 14 years old at the time. Arnold,323 Ill. App. 3d at 103-04. He was sentenced to two years of probation and waslater sentenced to boot camp after he violated his probation. Arnold, 323Ill. App. 3d at 104. Defendant escaped from boot camp and was charged with onecount of escape. Arnold, 323 Ill. App. 3d at 104. Although the trialcourt found that the defendant was a minor at the time he pleaded guilty to theunderlying offenses and at the time of his escape, it denied his request tovacate his pleas and ordered that he be charged as an adult with escape. Arnold,323 Ill. App. 3d at 104. After the defendant was found guilty of escape, heappealed all three of his convictions, contending that the Act required that hebe prosecuted as a juvenile. Arnold, 323 Ill. App. 3d at 104.

The reviewing court held that it lacked jurisdiction to consider errors inthe underlying convictions for attempted robbery and robbery because thedefendant did not file a notice of appeal from those orders. Arnold, 323Ill. App. 3d at 105. The court noted that even if it had jurisdiction, thedefendant waived his right to be tried as a juvenile for those offenses becausehe did not raise age as an issue until after he was charged with escape. Arnold,323 Ill. App. 3d at 105. The court further held that the defendant's priormisrepresentations regarding his age during his prosecution for attemptedrobbery and robbery waived his right to challenge his subsequent prosecution asan adult for escape. Arnold, 323 Ill. App. 3d at 111. The court foundthat no provision under the Act addressed the factual scenario before it andreasoned "that although the trial court does not have the ad hoc,unfettered power to impose adult prosecution on a juvenile, the judge may employhis discretion without abuse when a unique factual circumstance is presentedthat does not squarely fall under the procedural confines of the Act." Arnold,323 Ill. App. 3d at 111.

Unlike the defendant in Arnold, defendant here does not challenge hisprosecution and conviction under Illinois criminal laws, but instead challengeshis sentence. Furthermore, in contrast to Arnold, the factualcircumstances in this case do fall squarely under the procedural confines of theAct. Section 5-4(6)(c)(ii) of the Act required the trial court upon request bythe State to conduct a hearing to determine whether defendant should besentenced as an adult since he was not convicted of an offense listed in section5-4(6)(a). Section 5-4(6)(c)(ii) provides "unless the State requests ahearing for the purpose of sentencing the minor under Chapter V of the UnifiedCode of Corrections, the Court must proceed under Section 5-22 and 5-23of this Act." (Emphasis added.) 705 ILCS 405/5-4(6)(c)(ii) (West 1996)(repealed by Pub. Act 90-590, eff. January 1,1999) (now, as amended, 705 ILCS405/5-130(1)(c)(ii) (West 2000)). The provision is not discretionary. Finally,while the court's decision in Arnold was based in large part upon thedefendant's failure to disclose his age, here defendant did not misrepresent hisage, but in fact stipulated with the State to his age during the hearing on hispretrial motion to suppress.

The State failed to request a hearing as required under section 5-4(6)(c)(ii)for the purpose of sentencing defendant as an adult; therefore, defendant shouldhave been sentenced as a juvenile under the Act. This court, in Brazee,when confronted with a similar situation, vacated the defendant's sentence andremanded for the trial court to enter an order sentencing the defendant to timeserved under the sentencing provisions of the Juvenile Court Act. See Brazee,316 Ill. App. 3d at 1237. We note that a defendant's commitment under theJuvenile Court Act terminates automatically upon his twenty-first birthday. See705 ILCS 405/5-33(2) (West 1996) (repealed by Pub. Act 90-590, eff. January 1,1999) (now, as amended, 705 ILCS 405/5-750(3) (West 2000)). The partiesstipulated that defendant was born on December 11, 1980. The offense occurred onFebruary 1, 1997, when defendant was 16 years old. Defendant is now over age 21and is no longer eligible to be committed as a juvenile under the Juvenile CourtAct. Accordingly, for the reasons previously discussed, we vacate the judgmentof the trial court sentencing defendant as an adult to five years in prison forinvoluntary manslaughter. Defendant is sentenced under the Juvenile Court Act totime served, considered served as of December 11, 2001, the date of histwenty-first birthday.

Sentence vacated; defendant sentenced to time served.

GALLAGHER, P.J., and BUCKLEY, J., concur.