SECOND DIVISION
March 30, 2001

No. 1-99-3349

JUSTICE McBRIDE delivered the opinion of the court:

Fifteen-year-old defendant Adam Pena was arrested for hisrole in a shooting that occurred on February 11, 1998. Pursuant to a motionfiled by the State, the case was transferred from the juvenile division tocriminal court, where defendant was subsequently charged with attempted firstdegree murder, aggravated battery with a firearm, armed violence, and threecounts of aggravated battery. Following a bench trial, defendant was foundguilty of attempted first degree murder and sentenced to 18 years in prison. Thestatutory provision pursuant to which defendant was transferred from juvenile tocriminal court was part of an act that has since been declared unconstitutional.Defendant appeals, contending that, due to the unconstitutionality of the actunder which he was transferred to criminal court, his conviction should bevacated and the case remanded to juvenile court for further proceedings.

Defendant was arrested after he was identified as one of twopersons involved in an incident in which victim David Alcantar was shot sixtimes. Defendant was 15 years old at the time of his arrest. His case wasinitially referred to the juvenile division of the circuit court. The State thenfiled a motion to permit prosecution of a minor under the criminal laws. TheState based its transfer request on section 5-4(3.3) of the Juvenile Court Actof 1987 (705 ILCS 405/5-4(3.3) (West 1996). Under section 5-4(3.3), wherecertain conditions were met, a rebuttable presumption was created that a minor'scase should be transferred to criminal court. 705 ILCS 405/5-4(3.3) (West 1996).On July 31, 1998, the State's motion was granted and the matter was transferredto criminal court.

A bench trial was subsequently held and defendant was foundguilty of attempted first degree murder and sentenced to 18 years in prison.

The presumptive transfer provision pursuant to whichdefendant's case was transferred was enacted into law as part of Public Act88-680, also known as the "Safe Neighborhoods Law," which becameeffective on January 1, 1995. Pub. Act 88-680, eff. January 1, 1995. On December2, 1999, Public Act 88-680 was declared unconstitutional in its entirety by oursupreme court as violative of the single subject rule of the IllinoisConstitution. People v. Cervantes, 189 Ill. 2d 80, 723 N.E.2d 265 (1999).

Public Act 90-590 (Pub. Act 90-590, eff. January 1, 1999),otherwise known as the Juvenile Justice Reform Act, enacted presumptive transferlanguage (705 ILCS 405/5-805(2) (West 1998)) that was similar to the provisionthat had been in Public Act 88-680. For the purposes of this case, we willassume that Public Act 90-590 did not suffer from the same constitutionalinfirmities as Public Act 88-680.

On appeal, defendant contends that where Public Act 88-680was found unconstitutional in its entirety, the presumptive transfer provisionunder which this case was transferred to criminal court in 1998 was void abinitio as of its effective date of January 1, 1995. Therefore, defendantconcludes, his conviction must be vacated and his cause remanded to the juvenilecourt for further proceedings.

The State concedes that all of the provisions contained inPublic Act 88-680, including the presumptive transfer provision, were void abinitio following Cervantes. The parties agree that where the Actwas void ab initio, the state of the law was as if the act hadnever been passed. In re G.O., 191 Ill. 2d 37, 43, 727 N.E.2d 1003(2000); People v. Gersch, 135 Ill. 2d 384, 390, 553 N.E.2d 281 (1990).The State further concedes that the matter must therefore be remanded for a newtransfer hearing.

The parties disagree, however, on what law should be appliedat the new transfer hearing. Defendant contends that, on remand, the circuitcourt should apply the transfer provisions as they existed prior to theenactment of Public Act 88-680. The State, however, maintains that the newtransfer hearing should be conducted pursuant to the presumptive transferprovision enacted by the Juvenile Justice Reform Act and now in effect. 705 ILCS405/5-805 (West Supp. 1999).

Defendant maintains there is no question that the"quantum of punishment" to which he could be subjected increases uponthe transfer of his case to the criminal court. Therefore, defendant reasons, ifthe process through which a transfer could be accomplished were made easier by achange in the law that occurred after the offense was committed, then theretroactive application of that law would disadvantage him and violate expost facto principles.

The clause prohibiting ex post factolaws found in Illinois' Constitution (Ill. Const. 1970, art. I,