Digitally signed
by Reporter of
Decisions
Reason: I attest to
Illinois Official Reports the accuracy and
integrity of this
document
Appellate Court Date: 2022.08.30
15:35:23 -05'00'
People v. Gray, 2021 IL App (1st) 191086
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption DEMETRIUS GRAY, Defendant-Appellant.
District & No. First District, First Division
No. 1-19-1086
Filed October 12, 2021
Decision Under Appeal from the Circuit Court of Cook County, No. 16-CR-10202; the
Review Hon. Mary Margaret Brosnahan, Judge, presiding.
Judgment Reversed.
Counsel on James E. Chadd, Douglas R. Hoff, and Anna C. Carlozzi, of State
Appeal Appellate Defender’s Office, of Chicago, for appellant.
Kimberly M. Foxx, State’s Attorney, of Chicago (John E. Nowak,
Enrique Abraham, and Stacia Weber, Assistant State’s Attorneys, of
counsel), for the People.
Panel JUSTICE WALKER delivered the judgment of the court, with
opinion.
Presiding Justice Hyman and Justice Coghlan concurred in the
judgment and opinion.
OPINION
¶1 A jury found Demetrius Gray guilty of violating the armed habitual criminal provision of
the Criminal Code of 2012 (Criminal Code) (720 ILCS 5/24-1.7 (West 2016)). Gray argues on
appeal that the trial court should have accepted his guilty plea, he did not get a fair trial, and
the State failed to prove that his prior convictions met the requirements of the statute. We hold
that the conviction of a juvenile for the delivery of narcotics does not qualify as the kind of
conviction that can support a finding of a violation of the armed habitual criminal provision.
Because the State failed to prove the requisite prior criminal convictions, we reverse the trial
court’s judgment.
¶2 I. BACKGROUND
¶3 On June 10, 2016, a woman flagged down a police car as it rolled through her
neighborhood. She directed Officer Fernando Moctezuma’s attention to a car parked nearby.
Moctezuma saw Gray in the car’s passenger seat, reaching toward the car’s glove
compartment. When Moctezuma approached the car, he saw a gun in the glove compartment.
Police arrested Gray.
¶4 Prosecutors charged Gray with violating the armed habitual criminal section of the
Criminal Code. See 720 ILCS 5/24-1.7 (West 2016). Before trial the prosecutor offered to
recommend a sentence of eight years, with no more than 15% reduction for good behavior, in
exchange for a guilty plea. Gray rejected the offer. The prosecutor reduced the offer to six
years, still at 85%. Gray countered with an offer to plead guilty in exchange for a sentence of
six years with day-for-day good time credit. When the prosecutor rejected the counteroffer,
Gray hesitated, but decided to accept the prosecutor’s offer to recommend a six-year sentence,
with no more than a 15% reduction for good behavior, in exchange for a guilty plea.
¶5 The trial court agreed to accept the plea and asked the prosecutor for a factual basis. Gray
questioned some details of the factual basis and asked the court whether he could have a
different attorney. The court rejected the plea offer, finding that Gray might not be pleading
guilty voluntarily. Gray asked again before trial started for permission to plead guilty in
exchange for a sentence of six years to be served at 85%. The court rejected the request.
¶6 At the trial, Moctezuma testified that, after he arrested Gray and reminded Gray of his
constitutional rights, Gray told him that he had found the gun and he intended to turn it in to
authorities in exchange for a cash reward. The parties stipulated that Gray had two prior
convictions that qualified as a basis for the charge of armed habitual criminal: unlawful use of
a weapon by a felon, from 2007, and manufacture or delivery of 1 to 15 grams of narcotics
from 2002, when Gray was 17 years old. The jury found Gray guilty of being an armed habitual
criminal. The court sentenced Gray to nine years in prison, with no more than a 15% reduction
for good behavior. Gray now appeals.
¶7 II. ANALYSIS
¶8 On appeal, Gray argues that the trial court should have accepted his guilty plea, several
errors deprived him of a fair trial, and the evidence did not prove him guilty beyond a
reasonable doubt. We first address the sufficiency of the evidence.
-2-
¶9 Gray does not contest the sufficiency of the evidence that he possessed a firearm. He admits
that his criminal record includes two prior felony convictions, one for unlawful use of a weapon
by a felon and a Class 1 felony conviction for delivery of narcotics. He contends that the
narcotics conviction cannot support the armed habitual criminal charge because he was a
juvenile at the time of the narcotics offense and, under statutes now in effect, his offense would
not subject him to the jurisdiction of the criminal courts.
¶ 10 The Criminal Code provides:
“A person commits the offense of being an armed habitual criminal if he …
possesses … any firearm after having been convicted a total of 2 or more times of any
combination of the following offenses:
…
… unlawful use of a weapon by a felon …
…[and] any violation of the Illinois Controlled Substances Act … that is
punishable as a Class 3 felony or higher.” 720 ILCS 5/24-1.7 (West 2016).
¶ 11 Gray’s argument centers on the tense of the Criminal Code’s verb. The Criminal Code
requires a conviction for conduct that “is punishable as a Class 3 felony or higher.” (Emphasis
added.) 720 ILCS 5/24-1.7(a)(3) (West 2016). If, in 2016, a 17-year-old minor delivered 1 to
15 grams of narcotics, as Gray did in 2002, the juvenile courts would retain jurisdiction over
the case, and the conduct would result in a juvenile adjudication. “Illinois courts have
consistently held that juvenile adjudications do not constitute convictions.” People v. Taylor,
221 Ill. 2d 157, 176 (2006).
¶ 12 The State points out that a conviction of a juvenile, following a transfer to criminal court,
counts as a prior conviction for purposes of determining whether an offender is a habitual
criminal. See Fitzsimmons v. Norgle, 104 Ill. 2d 369 (1984). Gray concedes that he was
convicted and punished for a felony, but that is not what the Criminal Code requires. The plain
language of the Criminal Code requires the State to prove that the defendant was convicted for
conduct that “is punishable” as a felony.
¶ 13 We find this case similar to People v. Miles, 2020 IL App (1st) 180736, and People v.
Williams, 2020 IL App (1st) 190414. In Miles, this court interpreted section 5-4.5-95(b) of the
Unified Code of Corrections (730 ILCS 5/5-4.5-95(b) (West 2016)), which authorizes Class X
sentencing for offenders found guilty of a Class 1 or Class 2 felony “after having twice been
convicted … of an offense that contains the same elements as an offense now (the date the
Class 1 or Class 2 felony was committed) classified in Illinois as a Class 2 or greater Class
felony.” Miles’s record included a felony conviction for aggravated vehicular hijacking
committed when Miles was 15. The Miles court held that, based on the 2016 amendment to
section 5-130 of the Juvenile Court Act of 1987, the juvenile court acquired exclusive
jurisdiction over minors charged with armed robbery and aggravated vehicular hijacking. Both
crimes previously disqualified minors from juvenile court jurisdiction. Hence, the legislature
intended that minors who commit armed robbery and aggravated vehicular hijacking are to be
treated differently from adults charged with those same crimes. The Miles court also found
that, had Miles committed his 2005 offense under the laws in effect on June 9, 2016, the
juvenile court would have had exclusive jurisdiction, and Miles would not have received a
Class 2 conviction. Instead, he would have received a juvenile court adjudication. Therefore,
-3-
the court held that the 2005 conviction should not have been considered a qualifying offense
for Miles to be sentenced as a Class X offender. Miles, 2020 IL App (1st) 180736, ¶¶ 21-22.
¶ 14 The Williams court followed Miles, holding:
“Defendant here was properly convicted of burglary in criminal court when he was
17 years old, but a[n] … amendment to the Juvenile Court Act has since given the
juvenile court exclusive jurisdiction over 17-year-old defendants charged with
burglary. As Miles instructs, we look at the elements of his prior conviction as of the
date defendant committed his current offense. [Citation.] On the date he committed the
present offense, June 7, 2018, defendant’s 2013 burglary conviction would have been
resolved in delinquency proceedings rather than criminal court proceedings, and his
predicate offense would have been a juvenile adjudication instead of a Class 2 or greater
Class felony conviction. … Following Miles, we find that defendant’s prior burglary
conviction is not an offense now … classified in Illinois as a Class 2 or greater Class
felony and, therefore, is not a qualifying offense for Class X sentencing.” (Internal
quotation marks omitted.) Williams, 2020 IL App (1st) 190414, ¶ 21.
¶ 15 We note that one panel of the Fourth District Appellate Court of Illinois disagreed with
Miles and Williams. In People v. Reed, 2020 IL App (4th) 180533, the court held that
convictions of a juvenile transferred to criminal court qualify as convictions for all purposes
because the defendant’s age was not an element of the qualifying offense. We find Miles and
Williams persuasive. To obtain a conviction for aggravated vehicular hijacking (Miles),
burglary (Williams), or delivery of narcotics (here), the prosecution would need to prove that
the defendant was at least 18 years old at the time of the offense, or that the defendant merited
transfer to the criminal courts under the restrictive provisions for such transfer. See 705 ILCS
405/5-120 (West 2016). In view of the changes to the Juvenile Court Act of 1987, for most
offenses age of the defendant operates as an element of the offense.
¶ 16 Here, the prosecution showed that Gray had two prior felony convictions on his record, but
for the conviction for delivery of narcotics, the prosecution did not show that the conviction
was for conduct that “is punishable” as a felony as of the date of the firearm possession in
2016. Because the prosecution failed to prove the two prior convictions of the kind required to
show a violation of the armed habitual criminal provision of the Criminal Code, we reverse the
conviction for violation of the armed habitual criminal provision of the Criminal Code. The
State has not asked this court to remand for trial on the offense of unlawful use of a weapon
by a felon, and therefore we do not consider the possibility of proceedings on that charge.
¶ 17 III. CONCLUSION
¶ 18 Gray’s prior conviction for delivery of narcotics, committed when he was 17, does not
qualify as the kind of conviction that can support a later conviction on a charge of being an
armed habitual criminal. Accordingly, we reverse the armed habitual criminal conviction.
¶ 19 Reversed.
-4-
