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The State petitioned to adjudicate respondent, Matthew M., a delinquentminor. Then, pursuant to section 5--810 of the Juvenile Court Act of 1987 (theAct) (705 ILCS 405/5--810 (West 2000)), the State moved to designate theproceeding as an extended jurisdiction juvenile (EJJ) prosecution. The trialcourt granted the motion, and a jury subsequently convicted respondent ofresidential burglary (720 ILCS 5/19--3 (West 1998)). The trial court sentencedrespondent to a term of probation until he attained the age of 21. Pursuant tosection 5--810 of the Act, the trial court also sentenced respondent to a four-year adult sentence of imprisonment, staying the sentence on the condition thatthe respondent did not violate the conditions of his juvenile probation. Onappeal, respondent contends that (1) the State failed to prove him guilty beyonda reasonable doubt; (2) the trial court abused its discretion in not instructingthe jury on the lesser-included offense of criminal trespass to a residence; (3)section 5--810 of the Act violates his due process rights (U.S. Const., amend.XIV; Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348(2000)); and (4) his conditional adult sentence must be vacated because his minorstatus disqualifies him for possible treatment under the treatment alternativesfor criminal justice clients (TASC) program pursuant to section 40--5 of theAlcoholism and Other Drug Abuse and Dependency Act (20 ILCS 301/40--5 (West2000)). We reverse and remand for further proceedings.

On August 16, 1999, the State petitioned the trial court to adjudicate therespondent a delinquent minor. The petition alleged that on August 12, 1999, therespondent committed the offense of residential burglary (720 ILCS 5/19--3 (West1998)). Specifically, the petition alleged that respondent entered into theresidence of the victim, Mary Walker, with the intent to commit a theft. At thetime the State filed this petition, respondent was 16 years old.

On August 30, 1999, the State moved to designate the proceeding as an EJJprosecution. See 705 ILCS 405/5--810 (West 2000). The State alleged thatrespondent was more than 13 years old at the time he committed the offense; thecharged offense of residential burglary would be a felony if committed by anadult; and probable cause existed to believe that respondent committed the offensealleged in the petition. Following a hearing, the trial court found that probablecause existed to believe that the allegations in the State's delinquency petitionand motion were true, thereby raising a rebuttable presumption that the proceedingshould be designated as an EJJ prosecution. The trial court further found thatthe presumption had not been rebutted by clear and convincing evidence and orderedthat the proceeding be designated an EJJ prosecution.

At trial, the victim testified that during the morning of August 12, 1999,she was in her townhouse on Winchester Street in Warrenville. The victimtestified that she had taken the day off of work to register her children forschool. At approximately 10:30 a.m., respondent came to the victim's front door. The victim testified that she did not know respondent but recognized him as "akid" she had seen in the neighborhood. The victim testified that respondent wasnot her son's friend and that respondent "jumped back" and looked "stunned" whenshe answered the door. Respondent asked if the victim's son was home. The victimresponded that her son was in the shower. Respondent then asked the victim totell her son that "Matt stopped by." As the victim left her townhouse thatmorning, she observed respondent standing with "a group of kids" in her neighbor'syard. The victim testified that, as she walked toward her car, another individualin the group asked her where her daughter was. The victim responded that herdaughter was not at home.

When the victim returned to her residence later that afternoon, she founda trail of muddy footprints in her master bedroom. These footprints had not beenin her bedroom when she left that morning. The victim immediately called thepolice. After the police arrived, the victim discovered that two men's rings, aman's watch, and $440 were missing from the armoire in the master bedroom. Thevictim testified that a window screen in her son's bedroom had been torn.

Officer Mark Gross responded to the victim's report. Officer Grossinterviewed the victim and received a description of respondent. Officer Grosstestified that the residence was "disheveled" and "in disarray."

Officer Brian Melvin testified that he was on duty on August 12, 1999. Atapproximately 9 p.m., while on patrol, he observed a vehicle swerving on the road. Officer Melvin effectuated a traffic stop and called for assistance. OfficerMelvin testified that Natalie Stokes was sitting in driver's seat; Sam Smith wassitting in the front passenger seat; and respondent and Dandrian Jones weresitting in the backseat. Officer Melvin testified that he did not see respondentmaking any "furtive moves" as he looked into the car. After obtaining permissionto search the car, Officer Melvin found a watch under Smith's seat. This watchmatched the description of the watch that the victim reported missing. OfficerMelvin then patted down respondent, Smith, and Jones. Officer Melvin recovered$186 from Smith and $200 from Jones. Officer Melvin did not find any cash inrespondent's possession. The police transported respondent, Smith, and Jones tothe Warrenville police station. At the station, Officer Melvin advised respondentof his rights and informed the juvenile officer that respondent was in custody.

Detective Tony Dutkovich of the Warrenville police department testified thathe questioned respondent shortly after 1 a.m. on August 13, 1999. At thebeginning of the interview, respondent confirmed that he had been advised of hisMiranda rights and agreed to speak to Detective Dutkovich. Respondent initiallydenied that he was involved in a burglary at the victim's residence. Upon furtherquestioning, respondent admitted that he had been at the scene of the burglaryearlier in the day with another person. After Detective Dutkovich advisedrespondent that Smith was cooperating with the police, respondent said, "I wentinto the residence." Respondent then stated, "I didn't go into a residence inWinchester. I didn't do anything wrong." When Detective Dutkovich askedrespondent why he had said that he went into the residence, respondent replied "Idon't know what you are talking about. I didn't do anything."

At the conclusion of this interview, Officer Patrick Treacy of theWarrenville police department presented respondent with the written statement thatSmith had given to the police. After reviewing the statement, respondent toldTreacy that Smith's statement had "reversed some roles." Respondent explainedthat Smith went into the residence "doing the burglary" while respondent stoodoutside and acted as a lookout. Respondent then provided the following writtenstatement:

"Me and [Smith] went to Winchester in the morning looking for my bike. Wewalk [sic] around Winchester for about 20 minute[s] and [Smith] was like isthat little Mike and his Mom leaving. When we saw them pull off in the carSam said he was going to go see was the window open[.] I was like ok I'llbe waiting for you out here. I guess you can say I was just like a littlelook out [sic]. When [Smith] came out the house he had a gold plated watchand silver ring and some money[.]"

After respondent completed his written statement, Treacy asked him if hecould help the police locate the missing rings. Respondent said he did not knowwhere the rings were. Treacy then placed respondent and Smith together in a roomand provided them with a map of the victim's subdivision. Treacy asked respondentand Smith to place an "X" on the map where the police could find the rings. Treacy told them that no one would be watching and that no one would know whomarked an "X" on the map. Both respondent and Smith agreed to this suggestion. Treacy then left the room for several minutes. When he returned, the mapcontained two "X's." Treacy did not know who placed the marks on the map. Thepolice later found the two missing rings in the locations indicated on the map.

During the instructions conference, respondent requested the trial court toinstruct the jury on the lesser-included offense of criminal trespass to aresidence. Respondent argued that a reasonable jury could find that he did nothave the intent to commit a theft in the victim's residence. The trial courtdenied the request, finding that the evidence was insufficient to support thegiving of the instruction. Instead, the trial court instructed the jury solelyon the offense of residential burglary. The trial court also instructed the juryon the theory of accountability.

Following deliberations, the jury found respondent guilty of residentialburglary. Prior to sentencing, respondent petitioned the trial court to beevaluated for possible treatment under TASC. The State did not object to therequest, and the trial court ordered the evaluation. However, TASC administratorsrefused to perform an evaluation of respondent because he was a minor. The trialcourt subsequently sentenced respondent to a term of probation until his twenty-first birthday. Pursuant to section 5--810 of the Act, the trial court alsosentenced respondent to a four-year adult sentence of imprisonment, staying thesentence on the condition that the respondent did not violate the conditions ofhis juvenile probation. After the trial court denied his motion to reconsidersentence, defendant timely filed this appeal.

Respondent's first contention is that the State failed to prove him guiltybeyond a reasonable doubt of the offense of residential burglary. Respondentcontends that the State failed to prove that he intended to commit a theft, eitheras a principal or as an accomplice. Respondent argues that, although the Statewas able to place him near the scene of the crime, it could not link him to theitems of property stolen from the victim's residence. Respondent also argues thatthe State failed to prove that he intended to aid or abet his companions in thecommission of the offense.

We note at the outset that it is not the function of this court to retry thedefendant. People v. Collins, 106 Ill. 2d 237, 261 (1985). The relevant questionis " 'whether, after viewing the evidence in the light most favorable to theprosecution, any rational trier of fact could have found the essential elementsof the crime beyond a reasonable doubt.' " (Emphasis in original.) Collins, 106Ill. 2d at 261, quoting Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560,573, 99 S. Ct. 2781, 2789 (1979). This standard applies to appeals of allcriminal convictions, whether the nature of the evidence presented iscircumstantial or direct. People v. Cooper, 194 Ill. 2d 419, 431 (2000). TheState is not required to exclude every reasonable hypothesis of innocence (Peoplev. Pintos, 133 Ill. 2d 286, 291 (1989)), and the jury need not be satisfied beyonda reasonable doubt of each link in the chain of circumstances (People v. McDonald,168 Ill. 2d 420, 444 (1995)). Proof of guilt beyond a reasonable doubt does notrequire proof beyond any possibility of a doubt. People v. Rush, 294 Ill. App.3d 334, 337 (1998). Moreover, when the determination of a defendant's guilt orinnocence depends upon the credibility of the witnesses and the weight to be giventheir testimony, it is the function of the trier of fact to resolve any conflictsin the evidence. Rush, 294 Ill. App. 3d at 337, citing People v. White, 209 Ill.App. 3d 844, 868 (1991). We, as a reviewing court, are not to substitute our ownjudgment for that of the jury. Cooper, 194 Ill. 2d at 431; Rush, 294 Ill. App.3d at 337.

Section 19--3(a) of the Criminal Code of 1961 (720 ILCS 5/19--3(a) (West1998)) provides that "[a] person commits residential burglary [when that person]knowingly and without authority enters the dwelling place of another with theintent to commit therein a felony or theft." To obtain a conviction forresidential burglary, the State must prove that the offender's entry into adwelling was both without authority and with the intent to commit a felony or atheft. People v. Wilson, 155 Ill. 2d 374, 376 (1993). A jury may infer theoffender's intent to commit a residential burglary from proof that the offenderunlawfully entered a building containing personal property that could be thesubject of a larceny. People v. Ranstrom, 304 Ill. App. 3d 664, 678 (1999). Other relevant circumstances include the time, place, and manner that the offenderentered the premises, the offender's activity within the premises, and any lackof an alternative explanation for the offender's presence. Ranstrom, 304 Ill.App. 3d at 678.

Additionally, to convict respondent on a theory of accountability, the Statewas required to prove that (1) respondent solicited, ordered, abetted, agreed, orattempted to aid another in the planning or commission of the crime; (2)respondent's participation took place before or during the commission of thecrime; and (3) respondent had the concurrent intent to promote or facilitate thecommission of the crime. See 720 ILCS 5/5--2(c) (West 1998); see also People v.Taylor, 186 Ill. 2d 439, 445 (1999). Therefore, to prove respondent guilty ofresidential burglary on an accountability basis, the State was required to showthat respondent had, with the requisite intent, aided or abetted Smith prior toor during the commission of the crime.

We believe that the evidence, when viewed in the light most favorable to theState, was sufficient to prove respondent's guilt beyond a reasonable doubt on anaccountability theory. Respondent went to the victim's home the morning of theburglary and "jumped back" and looked "stunned" when the victim opened the door. When the victim left her residence later that morning, she observed respondentstanding in a neighbor's yard with several individuals. One of these individualsinquired whether the victim's daughter remained at home. Later that day,respondent was found in a vehicle containing the watch that had been taken fromthe victim's bedroom. At the police station, respondent initially admitted thathe had entered the victim's residence; he then retracted that admission and deniedthat he had done anything wrong. When confronted with Smith's statement,respondent said that Smith went inside the house "doing the burglary" while hestood outside and acted as a lookout. In his written statement, defendantreiterated that he had acted as a lookout.

From such evidence, we believe that the jury could have found beyond areasonable doubt that respondent intended to commit a theft in the victim'sresidence. Respondent was at the scene of the burglary shortly before itoccurred; he tried to learn from the victim whether anyone else was home; he waslater found in a vehicle that contained proceeds from the burglary; and headmitted that he had acted as a lookout while Smith entered the residence tocommit the burglary. Although the police did not find any of the proceeds fromthe burglary in respondent's direct possession, the jury reasonably could concludethat his presence at the scene and his statements to the police indicated that heintended to assist and participate with Smith in the commission of the offense.

In support of his argument, respondent relies on People v. Perez, 189 Ill.2d 254 (2000), which stands for the proposition that a defendant's mere presenceat the scene of the offense is inadequate to prove guilt. In Perez, the IllinoisSupreme Court explained that presence at the commission of a crime, even whenjoined with flight from the crime or the knowledge of its commission, is notsufficient to establish accountability. Perez, 189 Ill. 2d at 268. The Perezcourt explained that, in order for guilt to attach, the accomplice must intend toaid in the commission of the crime. Perez, 189 Ill. 2d at 268.

In this case, the State introduced sufficient evidence to satisfy thestandard articulated in Perez. As noted above, the evidence showed thatrespondent's involvement exceeded mere presence during the commission of theoffense and knowledge that an offense had been committed. Respondent's ownstatements demonstrated that he intended to actively participate and aid in thecommission of the offense. We therefore conclude that the State proved respondentguilty of the offense of residential burglary beyond a reasonable doubt.

Respondent next contends that the trial court abused its discretion when itdenied his request to instruct the jury on the lesser-included offense of criminaltrespass to a residence. Respondent argues that, in his written statement to thepolice, he indicated that he acted as lookout for Smith only to see if "the windowwas open." Respondent argues that his statement did not indicate that he wasaware that Smith intended to commit a burglary. As such, respondent argues that,had the jury been instructed on the lesser offense, it might have concluded thathe intended only to assist Smith in committing a trespass upon the victim'sresidence.

An instruction on a lesser offense is justified where there is some evidenceto support the giving of the instruction. People v. DiVincenzo, 183 Ill. 2d 239,249 (1998). A defendant is entitled to an instruction on his theory of the caseif there is some foundation for the instruction in the evidence. People v. Jones,175 Ill. 2d 126, 131-32 (1997). Very slight evidence supporting a defendant'stheory of the case will justify the giving of an instruction. Jones, 175 Ill. 2dat 132. The trial court abuses its discretion when it refuses to give aninstruction that supported by the evidence introduced at trial. DiVincenzo, 183Ill. 2d at 249.

Here, respondent argues that he did not intend to assist Smith's burglaryof the victim's residence. Rather, respondent asserts that he intended only toact as a lookout so that Smith could determine whether the window to the victim'sresidence was open. We agree with respondent that there was some foundation forthis theory in the evidence. In his written statement, respondent wrote thatSmith told him that he "was going to go see [if] the window was open" and thatrespondent would wait for him outside while he checked. Additionally, the Statefailed to introduce any direct evidence that respondent and Smith discussed orplanned to commit a theft of the victim's residence. Moreover, the police did notfind any of the stolen items in respondent's immediate possession after the crime. Also, the police did not witness whether respondent or Smith placed the "X's" onthe map to indicate the location of the rings. Based on this evidence, it ispossible that a jury could have concluded that respondent did not know that Smithintended to commit a theft when Smith went to check to see whether the victim'swindow was open.

One commits the offense of criminal trespass to a residence by entering orremaining within any residence without authority. 720 ILCS 5/19--4(a) (West1998). The State does not dispute that criminal trespass to a residence is alesser-included offense of residential burglary. For the reasons detailed above,we conclude that the evidence would have supported a conviction of criminaltrespass in the event that the jury was not convinced beyond a reasonable doubtthat the minor did not share Smith's intent to burglarize the victim's residence. Accordingly, we hold that the trial court committed reversible error when itrefused to instruct the jury on the lesser offense of criminal trespass to aresidence. See DiVincenzo, 183 Ill. 2d at 252.

In so holding, we distinguish the State's authorities. See People v. Cole,256 Ill. App. 3d 1 (1993); People v. Moore, 206 Ill. App. 3d 769 (1990). In bothof these cases, the reviewing courts held that instructions on the lesser chargeof criminal trespass were not required. In Cole, the defendant broke into avehicle and stripped the steering wheel. The reviewing court held that aninstruction on the lesser charge was inappropriate because the defendant's intentto steal the vehicle was evident from his act of stripping the steering wheel. Cole, 256 Ill. App. 3d at 4. In Moore, the police observed the defendantscarrying the proceeds of the burglary as they walked out of the residence. Moore,206 Ill. App. 3d at 775. Unlike the circumstances of Cole and Moore, the Statein this case failed to present direct evidence demonstrating respondent's intentto commit a theft of the victim's residence. We therefore conclude that the trialcourt abused its discretion in refusing the instruction, and we reverserespondent's conviction and remand the case for a new trial. See DiVincenzo, 183Ill. 2d at 252.

Respondent's next contention on appeal is that section 5--810 of the Actviolates his due process rights (U.S. Const., amend. XIV; Apprendi v. New Jersey,530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000)). Specifically,respondent argues that section 5--810 violates Apprendi because it permits thetrial court to increase the maximum sanction that may be imposed based upon thepresence of certain factors that were not submitted to a jury and proved beyonda reasonable doubt.

Some preliminary explanation of section 5--810 of the Act is necessary tounderstand respondent's argument. In general, when the State petitions the courtfor an adjudication of delinquency, the minor is subject only to the sanctionsprescribed under the Act. See 705 ILCS 405/5--120 (West 2000). The most seriousof these sanctions is the minor's commitment to the juvenile division of theDepartment of Corrections until the minor's twenty-first birthday. See 705 ILCS405/5--750 (West 2000). However, in some circumstances, the State may move thetrial court to designate the proceeding as an EJJ prosecution. If the trial courtagrees to designate the proceeding as an EJJ prosecution, then the court, uponfinding the minor guilty, must impose one or more of the penalties provided forin section 5--710 of the Act and a conditional adult criminal sentence. See 705ILCS 405/5--810(4) (West 2000). In the event that the minor violates theconditions of his or her juvenile sentence or commits a new offense, the trialcourt must order the execution of the conditional adult criminal sentence. See705 ILCS 405/5--810(6) (West 1998).

To seek the designation of the proceeding as an EJJ prosecution, the Statemust allege that (1) a minor 13 years of age or older committed an offense thatwould be a felony if committed by an adult and (2) there is probable cause tobelieve that the allegations in the delinquency petition and motion are true. 705ILCS 405/5--810(1) (West 2000). If the trial court finds that there is probablecause to believe the allegations are true, then the court must designate theproceeding as an EJJ prosecution unless the court finds, based on clear andconvincing evidence, that adult sentencing would not be appropriate for the minorbased on the following factors: (1) the seriousness of the alleged offense; (2)the minor's history of delinquency; (3) the minor's age; (4) the minor'sculpability in committing the alleged offense; (5) whether the offense wascommitted in an aggressive or premeditated manner; and (6) whether the minor usedor possessed a deadly weapon when committing the alleged offense. 705 ILCS 405/5--810(1)(b) (West 2000).

In Apprendi, the United States Supreme Court held that, "[o]ther than thefact of a prior conviction, any fact that increases the penalty for a crime beyondthe prescribed statutory maximum must be submitted to a jury, and proved beyonda reasonable doubt." Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at 455, 120 S. Ct.at 2362-63. Here, the respondent asserts that, when the State petitioned toadjudicate him a delinquent minor, he faced a sanction no greater than commitmentuntil his twenty-first birthday. However, after the trial court found (1)probable cause to believe the State's allegations and (2) a lack of clear andconvincing evidence that adult sentencing would be inappropriate for respondentafter a consideration of the factors described above, respondent potentially faceda greater sanction by the imposition of a conditional adult sentence. Respondentargues that the potential maximum sanction that the trial court could impose uponhim was increased based upon these factors that were not submitted to a jury andproved beyond a reasonable doubt.

The State initially responds that this contention is not ripe forconsideration because any adult sentence imposed on remand will be stayed on thecondition that respondent does not violate the provisions of his juvenilesentence. Therefore, respondent will not be required to serve an adult sentenceuntil such time that the trial court finds that he violated the conditions of hisjuvenile sentence. The State argues that respondent's constitutional argumentarises only in the event that he actually is required to serve his adult sentence. Because this event has not yet occurred, the State concludes that the issue is notripe for resolution. We disagree.

A controversy is ripe when it has reached the point where the facts permitan intelligent and useful decision to be made. People v. P.H., 145 Ill. 2d 209,219 (1991). For example, in P.H., the State sought to have a minor transferredfrom the juvenile system to criminal court pursuant to the "gang-transfer"provisions of the Act. P.H., 145 Ill. 2d at 217. The minor argued that thetransfer provision violated the constitutional requirements of due process, equalprotection, protection from double jeopardy, and the separation of powers. P.H.,145 Ill. 2d at 218. After the circuit court held that the transfer provision wasan unconstitutional violation of the separation of powers clause, the Stateappealed. On appeal, the minor raised all of the same constitutional issues thathe had raised before the trial court. The State asserted that some of thesechallenges were not ripe for review because the minor had not yet beentransferred, tried, and sentenced in adult court. P.H., 145 Ill. 2d at 219. Oursupreme court held that the issue were nonetheless ripe for determination,explaining that the minor had been arrested and charged with an offense, the factsof the case had been presented to the court, and there was "no need to speculateas to the harm the [minor] would suffer if convicted." P.H., 145 Ill. 2d at 219.

We believe that a similar conclusion is appropriate in this case. Althoughrespondent has not yet had to serve an adult sentence, the parties have presentedall of the relevant facts to resolve the issue, and the harm respondent wouldsuffer if he is required to serve an adult sentence is clearly known. Accordingly, we conclude that the respondent's contention is ripe for ourdetermination. See P.H., 145 Ill. 2d at 219.

Turning to the merits, we note that this court recently rejected an Apprendichallenge to the transfer provisions contained in section 5--805(2) of the Act(705 ILCS 405/5--805(2) (West 2000)). See People v. Beltran, 327 Ill. App. 3d 685(2002). Section 5--805(2)(a) creates a rebuttable presumption that a juvenilecase should be transferred to criminal court if the court finds probable cause tobelieve that a minor has committed a Class X felony or aggravated discharge of afirearm and the minor is at least 15 years old. 705 ILCS 405/5--805(2)(a) (West2000). The trial court is required to transfer the case to criminal court unlessit finds clear and convincing evidence that the minor would be amenable to thecare, treatment, and training programs available through the facilities of thejuvenile court. 705 ILCS 405/5--805(2)(b) (West 1998). In Beltran, the minorargued that this section violated Apprendi because it permitted the trial courtto impose greater adult sanctions based upon these factors that were not submittedto a jury and proved beyond a reasonable doubt. Beltran, 327 Ill. App. 3d at 690.

This court rejected the argument, finding that Apprendi did not apply to atrial court's determination as to the appropriate forum in which a minor's guiltis to be adjudicated. Beltran, 327 Ill. App. 3d at 690-91. We explained that,in a juvenile proceeding, due process does not require a jury. Beltran, 327 Ill.App. 3d at 690, citing McKeiver v. Pennsylvania, 403 U.S. 528, 545-46, 29 L. Ed.2d 647, 661, 91 S. Ct. 1976, 1986 (1971). Although we noted that due processrequires proof beyond a reasonable doubt during the adjudicatory stage of ajuvenile hearing, we further noted that such a standard does not apply to thedispositional stage of a juvenile proceeding. Beltran, 327 Ill. App. 3d at 690,citing In re Winship, 397 U.S. 358, 359 n.1, 25 L. Ed. 2d 368, 372 n.1, 90 S. Ct.1068, 1070 n.1 (1970). We explained:

"A hearing under section 5--805(2) is dispositional, not adjudicatory. That is, the hearing determines not the minor's guilt but the forum in whichhis guilt may be adjudicated. [Citation.] Thus, although the juvenile courtmade findings that exposed him to a greater sanction, defendant had no dueprocess right to have a jury make those findings beyond a reasonable doubt. Because Apprendi bears only on the process due in criminal proceedings, thecase is simply inapplicable here." Beltran, 327 Ill. App. 3d at 690-91.

We believe that a similar conclusion is warranted in this case. An EJJprosecution, like a section 5--805(2) transfer, requires the trial court to makea procedural determination as to whether the juvenile should receive an adultsentence under chapter V of the Unified Code of Corrections (730 ILCS 5/5--1--1et seq. (West 2000)). The only difference between section 5--805(2) and an EJJprosecution is that the adult sentence in an EJJ prosecution is stayed pending thejuvenile's successful completion of the juvenile sentence. Because the trialcourt's determination to designate a proceeding as an EJJ prosecution does notadjudicate the minor's guilt, due process would not require a jury to make sucha procedural determination. See Beltran, 327 Ill. App. 3d at 691. Although weagree with respondent that, in designating a proceeding as an EJJ prosecution, thetrial court may make findings that expose him to a greater sanction, he has no dueprocess right to have a jury make those findings. We therefore hold that, for thesame reasons articulated in Beltran, Apprendi is inapplicable to the present case.

We note that our conclusion is in accord with other Illinois courts thathave examined the various transfer procedures contained in the Act. For example,in P.H., the Illinois Supreme Court held that the "gang-transfer" provisioncontained in section 5--4(3)(a) of the Act did not violate due process, equalprotection, double jeopardy, and the separation of powers. In its discussion, theP.H. court noted that a juvenile has no common-law or constitutional right toadjudication under the Act. P.H., 145 Ill. 2d at 223. The P.H. court explainedthat the juvenile system is a purely statutory creation and that the legislaturehas the authority to define the limits of the juvenile system. P.H., 145 Ill. 2dat 223. As such, the determination of whether a person is tried in juvenile orcriminal court is a matter of procedure. P.H., 145 Ill. 2d at 222.

More recently, in In re M.C., 319 Ill. App. 3d 713, 720 (2001), the FirstDistrict held that the trial court erred in failing to apply the transferprovisions of section 5--805(2) of the Act. Relying on P.H., the reviewing courtnoted that minor defendants do not have a constitutional right to be prosecutedthrough the juvenile court system. M.C., 319 Ill. App. 3d at 720. The court alsoexplained that, because the juvenile system is statutory, the legislature coulddecide to limit the applicability of the system. Accordingly, the reviewing courtconcluded that the transfer provision was procedural in nature and did not"interfere with vested rights." M.C., 319 Ill. App. 3d at 720.

By enacting section 5--810, the legislature once again has chosen to modifythe juvenile system. Once a juvenile proceeding is designated an EJJ prosecutionand a minor is found guilty, the trial court is required to impose both a juvenilesentence and a conditional adult sentence. As a minor respondent has noconstitutional right to be prosecuted through the juvenile court system, thelegislature's decision to require the imposition of a conditional adult sentencein certain instances does not result in a constitutional deprivation of dueprocess. Accordingly, for all of the reasons detailed above, we conclude thatsection 5--810 of the Act does not violate Apprendi.

Respondent's final contention on appeal is that he cannot be sentenced asan adult because his minor status disqualifies him for participation in a TASCprogram. As noted above, the trial court ordered that respondent be evaluated forpossible participation in TASC. However, TASC administrators refused to performan evaluation of respondent because he was a minor. Respondent argues that, ifhe is to be sentenced as an adult, he must be accorded all of the sentencingalternatives available to adults, including TASC. Respondent argues that, becauseTASC services are not available to him because of his age, fairness dictates thathe cannot be sentenced as an adult.

The State again argues that this contention is not ripe for considerationbecause any adult sentence imposed on remand will be stayed on the condition thatrespondent not violate the provisions of his juvenile sentence. However, for thesame reasons discussed in regard to respondent's Apprendi argument, we find thatthis issue is also ripe for our determination. The parties have presented all ofthe relevant facts necessary to resolve the issue, and the harm that respondentwould suffer if he has to serve an adult sentence is evident. See P.H., 145 Ill.2d at 219. We therefore proceed to address the merits of respondent's contention.

Section 40--5 of the Alcoholism and Other Drug Abuse and Dependency Act (20ILCS 301/40--5 (West 2000)) provides that, under certain circumstances, an addictor alcoholic who is charged or convicted of a crime may elect treatment under thesupervision of a licensed program designated by the Illinois Department of HumanServices. Section 40--10 requires that, in instances where a trial court believesthat an individual who is charged with or convicted of a crime suffers fromalcoholism or other drug addiction and the individual qualifies under section 40--5, the trial court must advise the individual that he or she may be sentenced toprobation if he or she elects treatment and is accepted for treatment by adesignated program. 20 ILCS 301/40--10 (West 2000). Section 40--15 furtherprovides that a designated program "shall establish the conditions under which aparolee is accepted for treatment" and that "[n]o parolee may be placed under thesupervision of a designated program for treatment unless the designated programaccepts him for treatment." 20 ILCS 301/40--15 (West 2000).

In the present case, the record demonstrates that the trial court found thatrespondent met the conditions specified in section 40--5 and referred him to TASCfor an evaluation. Following the trial court's referral, the TASC administratorsrefused to accept respondent into treatment because he was a minor. TASC'sdetermination to reject respondent based upon his minor status was not within itsstatutory authority under section 40--15 to establish the conditions foracceptance into treatment. 20 ILCS 301/40--15 (West 2000). This limitedstatutory grant of authority under section 40--15 permits TASC to exercisediscretion in deciding whether to accept or reject individual persons for a TASCprogram. In making such determinations, TASC will necessarily have to considervarious subjective factors, including the individual's willingness to participatein treatment and the likelihood that treatment will be effective given theindividual's psychological and physical condition. In such a manner, TASC is ableto distribute its limited treatment resources to those individuals who will mostbenefit from treatment.

However, section 40--15 does not permit TASC to reject certain groups ofindividuals based on objective factors unrelated to treatment, such as age,gender, or religion. The legislature has already enunciated nine objectivedisqualifying factors in section 40--5. Included among these disqualifyingfactors are that the individual has been convicted of a crime of violence, theindividual has been convicted of certain drug offenses, the individual has arecord of two of more convictions of violent crimes, and the individual has twicepreviously participated in a TASC program. See 20 ILCS 301/40--5 (West 2000). Age is not among the disqualifying factors listed in section 40--5.

Although respondent recognizes that a conditional prison term is statutorilyauthorized, he nonetheless argues that he should have the same opportunity toparticipate in TASC programs as would any other adult. Since we are reversing thejudgment of conviction and remanding this cause for further proceedings, we neednot address respondent's argument further. Unless and until the legislatureaffirmatively declares that disqualification may be based upon age, gender, orreligion, TASC may not reject the respondent minor solely because of his age.

For the foregoing reasons, we reverse the judgment of the circuit court ofDu Page County and remand the case for a new trial consistent with the viewsexpressed in this opinion.

Reversed and remanded.

McLAREN and CALLUM, JJ., concur.