                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 07a0009n.06
                           Filed: January 5, 2007

                                        Nos. 05-4129

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT

Aseel Elias                                         )
                                                    )
       Plaintiff - Appellant                        )      ON PETITION FOR REVIEW
                                                    )      FROM A FINAL ORDER OF
v.                                                  )      THE BOARD OF IMMIGRATION
                                                    )      APPEALS
Alberto Gonzales                                    )
                                                    )                               OPINION
       Defendant - Appellee                         )

BEFORE:       MARTIN, COOK, Circuit Judges; and BUNNING, District Judge*

       BUNNING, District Judge. Aseel Elias appeals the final order of removal entered

by the Board of Immigration Appeals (“Board” or “BIA”) on August 11, 2005, wherein the

Board affirmed, without opinion, the decision and order of the Immigration Judge (“IJ”)

denying Elias’s application for asylum, withholding of removal, and protection under the

Convention Against Torture (CAT). On appeal, Elias argues that (1) he has established

eligibility for asylum and withholding; (2) his due process rights were violated by the IJ; and

(3) the record has become stale and the matter should, therefore, be remanded. For the

reasons set forth below, we DENY the petition for review.

                  I.   FACTUAL AND PROCEDURAL BACKGROUND

       *
       The Honorable David L. Bunning, United States District Judge for the Eastern District of
Kentucky, sitting by designation.

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       Elias is a native and citizen of Iraq, as well as a member of the Chaldean Christian

minority. As a youth, he lived with his family in Mosul, a city located in northern Iraq, where

his father worked as CEO of the tourism and culture board for the Iraqi government. When

Elias was ten or eleven years old, his family was forced to move to Baghdad when his

father lost his job, which Elias believes was due to his family’s Christian religion. Elias

lived in Iraq until he was thirteen years of age, at which time his mother took him and his

sister to the United States without their father, with whom they had lost contact.

A.     Commencement of Removal

       Elias entered the United States on July 30, 1990, as a non-immigrant visitor at New

York City. Elias was authorized to remain in the United States until January 29, 1991. On

October 28, 1998, the Immigration and Naturalization Service (“INS”) issued a “Notice to

Appear” charging Elias with being subject to removal under the Immigration and Nationality

Act (“INA”) § 237(a)(1)(B), 8 U.S.C.§ 1227(a)(1)(B), because he remained in the United

States beyond the time permitted by the non-immigrant Visa.1 On April 1, 1999, the

Immigration Court received Elias’s Application for Asylum and for Withholding of Removal

(“Asylum Application”). As the basis for the Asylum Application, Elias set forth his fear of

being persecuted by the Ba’ath Party in Iraq, including an explanation of the reasons his

family left Iraq. A hearing on Elias’s Asylum Application was set for December 14, 1999.

       When Elias failed to appear in court on the date set, the IJ ordered the removal of

       1
          Elias had previously been included as a derivative asylum applicant on his mother’s
application. However, when he turned twenty-one in 1998, the INS notified his mother and placed
Elias into separate proceedings. (Elias’s mother became a permanent resident in July of 2005 upon
a petition from her U.S. citizen parents.)

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Elias in abstentia. Elias filed a motion to reopen, claiming that his failure to timely appear

was due to some unfortunate traffic incidents (i.e. “exceptional circumstances”), namely

getting lost on the way to the hearing. The IJ denied Elias’s motion to reopen, as well as

a motion to reconsider. Elias subsequently filed an appeal to the BIA, which reversed the

IJ’s order on April 18, 2002. The BIA remanded the case back to the Immigration Court

to allow Elias the opportunity to apply for “any form of relief” from removal that may be

available.

B.     Merits Hearing

       At the Master Calendar hearing on January 29, 2003, following the BIA’s remand,

Elias requested permission to submit a supplemental asylum application. Although the IJ

denied his request for submission of a supplemental application, the IJ did permit Elias to

submit changes or corrections to his initial asylum application if submitted 30 days prior to

the Merits Hearing, which was set for March 2, 2004. At the Merits Hearing, Elias

appeared with counsel and submitted his application for asylum, but made no written

changes or corrections, and offered no documents or affidavits in support of the

application, nor did he indicate that any would be forthcoming.

       During the Hearing, Elias testified about his experiences in Iraq and indicated that

the reason his sister and mother fled the country was because “there was something going

on . . . there’s a secret army or secret police . . . [s]ome people go away and some people

disappear, then, you know, then we start seeing a lot of people fleeing from there.” At the

time he left Iraq, Elias stated that his father was missing for two or three months, and he

feared that the Ba’ath party had picked his father up. While Elias never actually knew

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whether or not his father joined the Ba’ath Party, he believed that to be true based on

some of his mother’s remarks.2 Elias further testified that he feared going back to Iraq, as

he might be persecuted by the Shi’ites because they “don’t operate with Christians.”3

       Even though Elias had a multitude of opportunities to present testimonial evidence

of friends and relatives, he failed to put forth any such evidence. At the time of the Merits

Hearing, Elias’s mother and sister were living in Detroit, where the removal proceedings

were held. Elias also had an uncle who was a U.S. citizen, living in California, who had

traveled to Iraq. Elias additionally indicated that he knew other people, through his church,

who had been to Iraq after the fall of Saddam’s regime. Despite the existence of the

potential witnesses, Elias did not bring any witnesses to testify about the current conditions

in Iraq during the Merits Hearing and did not provide any affidavits.

       Moreover, Elias did not submit any documentary evidence, other than his original

application for asylum. Although Elias’s counsel referenced country reports discussing the

conditions in Iraq during his closing, indicating that they were more or less what Elias would

have submitted, the reports were actually submitted by the Government. The IJ also

submitted an article at the Merits Hearing pertaining to the draft of the new Iraqi

constitution for both parties to review and comment. Elias’s counsel agreed that the article

was relevant for purposes of addressing religious freedom in Iraq and even indicated that

       2
         Elias did testify that he had renewed contact with his father, but he did not inquire as to
his father’s party affiliation or anything concerning the circumstances in Iraq after the fall of
Saddam’s regime.
       3
          At the time of the Merits Hearing in March of 2004, there had been a regime change in
Iraq. Although Elias failed to update his asylum application to that effect, his testimony at the
Hearing did shift the focus of his feared prosecution from the ousted Ba’ath Party to the Shi’ite
majority.

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he had considered asking the Court to take judicial notice thereof.

C.     Decision of the Immigration Judge

       In her oral decision on March 2, 2004, the IJ denied Elias’s request for asylum and

for withholding of removal under the INA, as well as under the CAT. She found Elias

removable and designated Iraq as the country of removal. Specifically, the IJ found that

Elias’s evidence did not support a finding of persecution or torture because Elias had not

presented any evidence of past persecution, nor provided any support for his claim that he

had a reasonable fear of future persecution or torture.

       The IJ rejected both of Elias’s bases for his asylum claim, that of his fear of the

Ba’ath party (as contained in the written application) and his fear of the Shi’ite Muslim

majority (as he testified to at the Hearing). The IJ concluded that Elias could not credibly

fear the Ba’ath party because it has been removed from power. Additionally, with respect

to Elias’s claim regarding the Shi’ite majority now in place, Elias failed to provide any

evidence to support his speculation that he would be persecuted as a Christian. According

to the IJ, Elias’s uncorroborated testimony was insufficient to support a finding of future

persecution because Elias did not proffer any witnesses and provided no documentary

evidence about the contemporaneous conditions facing Christians in Iraq.

       Upon Elias’s appeal of the IJ’s removal order to the BIA, the Board affirmed, without

opinion, the decision of the IJ. Elias timely appealed.

                                      II.   ANALYSIS

A.     Removal Claims

       Elias seeks three forms of direct relief from deportation in this matter: (1) application

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for asylum, (2) withholding of removal under the INA, and (3) withholding relief under the

CAT.4 The latter two claims for withholding will be considered in concert.

       1.      Standard of Review

       This Court’s jurisdiction to review a removal order by the BIA is pursuant to section

242 of the INA, which confers exclusive jurisdiction on the Courts of Appeals to review final

orders of removal. See 8 U.S.C. § 1252. The Court’s jurisdiction is limited to review of

final orders in which the alien has exhausted all administrative remedies. See 8 U.S.C. §

1252(d)(1).

       In considering a petition for review of a BIA decision, the Board’s legal

determinations are subject to the de novo standard of review, whereas any factual findings

are subject to the substantial evidence standard. See Mostafa v. Ashcroft, 395 F.3d 622,

624 (6th Cir. 2005) (internal citations omitted). However, in this case, where the Board

affirmed the results of the IJ’s decision without additional analysis, the Court reviews the

IJ’s order under the de novo and “substantial evidence” standards. See Hassan v.

Gonzales, 403 F.3d 429, 433 (6th Cir. 2005).

       Although not briefed by the parties, the substantial evidence standard, which

previously required upholding the Board’s findings as long as they are “supported by

reasonable, substantial, and probative evidence on the record considered as a whole,” has

since been altered by a statutory repeal. See Yu v. Ashcroft, 364 F.3d 700, 702-03 (6th

       4
          The record is unclear as to whether Elias is actually raising the claims for withholding
under the INA and the CAT before this Court. Although the claims were raised and adjudicated
below, Elias has only briefed the asylum issue in this matter. Respondent, however, has briefed
all three removal claims.

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Cir. 2004). The new language for the substantial evidence standard holds that findings of

fact are now “conclusive unless any reasonable adjudicator would be compelled to

conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Yu, 364 F.3d at 702-03.

Because the jurisprudence has not changed, only the “reiteration of the repealed”

language,5 we will still reverse only where the evidence is “so compelling that no

reasonable factfinder could fail to find the facts were as the alien alleged.” Yu, 364 F.3d

at 703; see also INS v. Elias-Zacarias, 502 U.S. 478, 483-84 (1992); Ouda v. INS, 324

F.3d 445, 451 (6th Cir. 2003).

       2.        Eligibility for Asylum

       Section 208(a) of the INA, 8 U.S.C. § 1158(a), authorizes the Attorney General, in

his discretion, to grant asylum to an alien who is a “refugee” as defined in the Act – i.e., an

alien who is unable or unwilling to return to his home country “because of persecution or

       5
           This Court, in Yu, explained the evolution of the standard:

                [I]n 1996, 8 U.S.C. § 1105a(a)(4) was repealed and replaced by 8 U.S.C.
       § 1252(b)(4). Nevertheless, many circuits, including the Sixth, continue to cite the
       "supported by reasonable, substantial, and probative evidence" language as
       controlling. Given that this language was repealed, we take this opportunity to
       clarify the standard of review.
                Now, findings of fact are "conclusive unless any reasonable adjudicator
       would be compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B). Courts
       have found that § 1252(b)(4)(B) basically codifies the Supreme Court's substantial
       evidence standard. Thus, our jurisprudence, except for reiteration of the repealed
       "supported by reasonable, substantial, and probative evidence" language, remains
       good law. See Ouda, 324 F.3d at 451 (finding IJ's determination should be upheld
       unless evidence "not only supports a contrary conclusion, but indeed compels it,"
       and "as such, the petitioner must show that the evidence presented was so
       compelling that no reasonable factfinder could fail to find the requisite persecution
       or fear of persecution").

364 F.3d at 702-03 (some citations omitted).

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a well-founded fear of persecution on account of race, religion, nationality, membership in

a particular social group, or political opinion.” INA § 101(a)(42)(A), 8 U.S.C.

§ 1101(a)(42)(A); see also INS v. Cardoza-Fonseca, 480 U.S. 421, 423, 428 n. 5 (1987);

Elias-Zacarias, 502 U.S. at 481. Because the Attorney General has discretion under the

Act to grant asylum to a “refugee,” the disposition of an application for asylum by the IJ,

acting for the Attorney General, involves a two-step inquiry: (1) whether the applicant

qualifies as a “refugee” as defined in § 1101(a)(42)(A), and (2) whether the applicant

“merits a favorable exercise of discretion by the Attorney General.”6 Perkovic v. INS, 33

F.3d 615, 620 (6th Cir.1994). The alien bears the burden of establishing that he is a

refugee and that he has either suffered past persecution or has a well-founded fear of

future persecution upon return to the country of removal. See Ouda, 324 F.3d at 451; see

also 8 C.F.R. § 208.13(a).

       The well-founded fear of persecution requirement includes both a subjective and an

objective component. See Cardoza-Fonseca, 480 U.S. at 430-31; Perkovic, 33 F.3d at

620-21. If past persecution is established, the asylum applicant is presumed to have a

well-founded fear of persecution.7 See Ouda, 324 F.3d at 452. However, absent any

evidence of past persecution, “an alien must actually fear that he will be persecuted upon

       6
        As to the standard of appellate review for the discretionary granting of asylum status, the
judgment of the IJ is “conclusive unless manifestly contrary to the law and an abuse of discretion.”
8 U.S.C. § 1252(b)(4)(B); see also Yu, 364 F.3d at 703.
       7
         This presumption can be overcome, however, by establishing by a preponderance of the
evidence that “since the persecution occurred, conditions in the applicant’s country have changed
to such an extent that the applicant no longer has a well-founded fear of being persecuted upon
return.” Ouda, 324 F.3d at 452.

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return to his country, and he must present evidence establishing an ‘objective situation’

under which his fear can be deemed reasonable.”                Perkovic, 33 F.3d at 620-21.

Furthermore, the fear of persecution must be based on at least one of the qualifying

grounds.     See 8 U.S.C. § 1101(a)(42) (“on account of race, religion, nationality,

membership in a particular social group, or political opinion”). A general fear for one’s

safety is insufficient.

       Because Elias does not assert that he was persecuted in Iraq prior to coming to the

United States, he is not entitled to a presumption of future persecution and is therefore

required to establish a genuine fear of persecution that a reasonable person in his

circumstances would also experience. See Namo v. Gonzales, 401 F.3d 453, 456 (6th Cir.

2005). Elias does assert in his brief that as a member of the Christian minority in Iraq he

is in danger of being persecuted upon his return because of his faith. However, whether

or not the record shows that Elias actually possessed and established a subjective fear of

persecution,8 the evidence presented at the Hearing does not rise to the level required to

prove an objective fear of persecution.

       Beyond his subjective beliefs and fears, Elias failed to put forth any objective

evidence to establish that his alleged subjective fear of persecution was indeed

reasonable. Elias does not have to show that he probably will be persecuted if he is

deported, as one can have a well-founded fear when there is less than a 50% chance that

       8
          The record reveals that even a subjective fear is questionable in this case, legally
speaking, because the actual fear Elias may feel is probably more attributable to the general lack
of security in Iraq, rather than a fear of persecution based on Elias’s religion.

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the feared occurrence will actually take place.9 See Pilica v. Ashcroft, 388 F.3d 941, 950

(6th Cir. 2004) (citations omitted). Elias must, however, demonstrate an actual fear that

he will be persecuted upon return to his country, and he must present evidence

establishing an “objective situation” under which his fear can be deemed reasonable. See

id. Although Elias did speculate that he would be persecuted because the Shi’ite Muslims

are the majority in Iraq and they do not like Christians, this falls woefully short of

substantiating an objectively reasonable fear as to Elias himself. Mere speculation is never

reasonable absent some degree of objective substantiation.

            In a conversation with his father, with whom he regained contact several months

prior to the Merits Hearing held in March of 2004, Elias testified that his father told him that

killing in Iraq was random, living conditions were very poor, and the overall situation was

unsafe. Nevertheless, Elias was not able to provide any affidavit from his father or any

concrete information as to how the general violence in Iraq pertained to the treatment or

persecution of Christians.10 While the situation in Iraq is certainly not the most desirable

from a security standpoint, Elias is required under the INA to put forth evidence as to

problems he would face in Iraq as a Christian, not as a mere citizen generally.

        In sum, Elias’s fear is at most “based on ‘the existence of a generalized or random

        9
        This is in contrast to the withholding of removal standards under the INA and the CAT,
where a probability of harm (i.e., more likely than not) is a required showing for relief.
        10
           Elias also testified that his uncle, who is a U.S. citizen living in California, was briefly
detained when he returned to Iraq. However, Elias again failed to provide any testimony or
evidence that, besides being detained, his uncle was in any danger or feared any type of
persecution while in Iraq as a Christian. As Elias indicated from his father’s statements, where
there is fear and killing in Iraq, it is for the most part random and unrelated to religious affiliation.

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possibility of persecution in his native country,’ which is generally insufficient to establish

persecution.” See Almuhtaseb v. Gonzales, 453 F.3d 743, 750 (6th Cir. 2006) (quoting

Castellano-Chacon v. INS, 341 F.3d 533, 550 (6th Cir. 2003)). Elias must establish that

he is at particular risk as a Christian and that his predicament is appreciably different from

the dangers faced by other non-Christian Iraqis. See id. (citing Singh v. INS, 134 F.3d 962,

967 (9th Cir. 1998)). Because Elias’s unsupported and non-particularized conjecture about

what life might be like for him in Iraq does not constitute an objectively reasonable showing

of a well-founded fear of future persecution, Elias did not sufficiently establish his eligibility

for asylum.

       Accordingly, the decision below is affirmed because (1) the evidence presented

does not compel a contrary conclusion, but rather supports the initial decision to deny

asylum,11 and (2) the discretionary judgment of the IJ to deny asylum based upon the

determination that Elias is not a “refugee,” as defined by 8 U.S.C. § 1158, was not contrary

to law or an abuse of discretion. See Yu, 364 F.3d at 702-03.

       3.      Withholding of Deportation

       11
           Although the IJ did not base her decision to deny asylum on the credibility of Elias, she
did question his credibility surrounding alleged conflicting statements between his asylum
application and his testimony during the Merits Hearing. Elias asserts that the alleged
inconsistencies were merely the result of changed conditions in Iraq from the time he initially filed
his application and when he testified at the Merits Hearing some five years later (since he decided
not to make additions or corrections to his application as permitted). As such, Elias claims that the
IJ’s credibility considerations were misplaced and constitute error. However, there were not formal
findings made by the IJ concerning Elias’s credibility, and to the extent her credibility concerns
constitute findings, they are findings of fact. See Yu, 364 F.3d at 703. Therefore, because a
reasonable adjudicator would not be compelled to conclude otherwise based on the record,
whatever credibility findings that were made by the IJ will not be disturbed on appeal. See id. at
704 (affirming the IJ’s denial of asylum, which was based solely on credibility concerns, even
though some of the IJ’s grounds seemed “weak”).

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       An alien can request withholding of removal in deportation proceedings under

section 241(b)(3) of the INA, as well as under the CAT. See Almuhtaseb, 453 F.3d at 749;

see also 8 U.S.C. § 1231(b)(3). Although Elias specifically raised claims for withholding

of removal under the INA and the CAT at the Merits Hearing below, and the claims were

adjudicated by the IJ, Elias has not independently briefed all three removal claims before

this Court. Instead, Elias only asserts that he has established a “well-founded fear of

persecution,” which directly pertains to the asylum claim only.12 However, a request for

asylum in deportation proceedings is automatically considered to include a request for

withholding of removal under the INA. See 8 C.F.R. § 208.3(b); see also INS v. Stevic, 467

U.S. 407, 420 n.13 (1984). A brief analysis of Elias’s withholding claims, therefore, is

warranted.

               (a)     Withholding Under the INA

       While the Attorney General has discretion in granting asylum to a refugee,

“[w]ithholding of removal is mandatory if an alien establishes that his ‘life or freedom would

be threatened in the proposed country of removal on account of race, religion, nationality,

membership in a particular social group, or political opinion.’ ” Singh v. Ashcroft, 398 F.3d

396, 401 (6th Cir. 2005) (citations omitted). To that effect, in order to prevail on a petition

       12
             Additionally, and importantly, because the “clear probability” and “more likely than not”
standards for the withholding of removal provisions are more stringent than the “well-founded fear
of persecution” standard for asylum claims, and are thus more difficult burdens for the alien to
meet, a Court’s finding on an asylum claim is directly implicated by a claim for withholding of
removal, whether under the INA or the CAT. See Carodoza-Fonseca, 480 U.S. at 430-31. In other
words, an alien who fails to satisfy his eligibility for asylum necessarily fails to satisfy the higher
burdens for withholding. See Yu, 364 F.3d at 703 n.3 (“Since [petitioner] does not establish
eligibility for asylum, he does not meet the more stringent standards required for withholding or the
Torture Convention.”); Mikhailevitch v. INS, 146 F.3d 384, 391 (6th Cir. 1998).

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for withholding of removal under the INA, Elias must show that there is a “clear probability

of persecution,” or that “it is more likely than not” that he would be subject to persecution

on the basis of one of the five qualifying grounds. See Liti v. Gonzales, 411 F.3d 631,

640-41 (6th Cir. 2005) (quoting 8 C.F.R. § 1208.16(b)(2)). Elias may also establish a

well-founded fear of future persecution, provided that he can demonstrate both a subjective

fear of persecution and an objectively reasonable possibility of persecution if forced to

return to the country in question. Rreshpja v. Gonzales, 420 F.3d 551, 556 (6th Cir. 2005)

(citing Recinos De Leon v. Gonzales, 400 F.3d 1185, 1190 (9th Cir. 2004)).

       As is evident, the analysis in a claim for withholding of removal under the INA

effectively mirrors the analysis for an asylum claim, which explains the reason why asylum

claims automatically incorporate INA withholding claims. Accordingly, based on the

determination that Elias has not established eligibility for asylum, the IJ’s decision to deny

withholding of removal under the INA is similarly upheld.

              (b)    Withholding Under the CAT

       In contrast, to qualify for withholding under the CAT, Elias need not show that the

harm he allegedly faces is based on a requisite ground, as is required for asylum claims

and for withholding under the INA. Instead, Elias must establish a “particularized threat of

torture.” Almuhtaseb, 453 F.3d at 751 (citing Castellano-Chacon, 341 F.3d at 551).

Consequently, for Elias to eligible for withholding of removal under the CAT, he “bears the

burden of establishing ‘it is more likely than not that he would be tortured if removed to the

proposed country of removal.’” Liti, 411 F.3d at 641 (quoting 8 C.F.R. § 1208.16(c)(2)).

       The term “torture” is reserved only to describe “an extreme form of cruel and

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inhuman treatment and does not include lesser forms of cruel, inhuman or degrading

treatment or punishment that do not amount to torture.” Almuhtaseb, 453 F.3d at 751

(citing 8 C.F.R. § 1208.18(a)(2)). In assessing the risk of torture, the adjudicator is to

consider “all evidence relevant to the possibility of future torture,” including, inter alia,

evidence of any past torture inflicted upon Elias, as well as evidence that Elias could

relocate to another area of Iraq where he might not be tortured.               See 8 C.F.R. §

208.16(c)(3) (2006). However, Elias did not present any objective evidence to support a

claim that he was in probable danger of being tortured upon returning to Iraq.

       Aside from Elias’s failure to set forth any argument in support of a request for relief

under the CAT, the record still fails to provide any support for the claim that Elias has been

or would be subjected to torture when returning to Iraq.13 Accordingly, Elias’s claim for

withholding under the CAT is without merit.

B.     Due Process Claims

       Fifth Amendment due process guarantees extend to aliens in removal proceedings,

entitling them to a full and fair hearing. See Vasha v. Gonzales, 410 F.3d 863, 872 (6th

Cir. 2005). Elias asserts that the IJ violated his due process rights on two grounds: (1) by

not affording him an opportunity to submit a supplemental asylum application, and (2) in

considering evidence not in the record to support changed country conditions.

       Alleged due process violations in removal hearings are subject to de novo review.

       13
         Although the regulations do direct the adjudicator of a withholding claim under the CAT
to consider any “evidence of gross, flagrant, or mass violations of human rights in the country of
removal, where applicable.” Elias did not present any such evidence, subjective or objective. 8
C.F.R. § 208.16(c)(3)(iii).

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See id. However, because Elias failed to raise the due process allegations while before

the BIA, thereby failing to exhaust all administrative remedies of right, this Court is not

vested with jurisdiction pursuant to 8 U.S.C. § 1252(d)(1).14 See Hasan v. Ashcroft, 397

F.3d 417, 420 (6th Cir. 2005); Ramani v. Ashcroft, 378 F.3d 554, 559 (6th Cir. 2004).

       Assuming arguendo that the due process claims are even properly before this Court,

the record does not establish a due process violation.                Elias was provided ample

opportunity to amend his asylum application to reflect changed country conditions.15 With

respect to Elias’s second claim, any evidence reviewed by the IJ outside of the record was

done so with the approval of Elias.16 Regardless, Elias fails to articulate what, if any,

prejudice resulted from the IJ’s actions. Accordingly, Elias cannot demonstrate a due

process violation and, therefore, must not prevail.

C.     Stale Record

       Finally, Elias requests a remand in the alternative, asserting that the record has

become stale and no longer adequately reflects the conditions facing Christians in Iraq.

The proper recourse for Elias, under the circumstances as pled, would be to petition the

       14
          In his appeal to the BIA, Elias raised only two general claims (removal and credibility),
neither of which asserted any due process violations or even pertained to the underlying due
process allegations now before the Court. J.A. 12, 13.
       15
          When the IJ denied Elias’s request to submit a supplemental asylum at the Master
Calendar hearing in January of 2003, the IJ indicated that if Elias had “changes or corrections” he
wished to make to his asylum application, he could “submit them in writing,” in lieu of filing a new
application, as long as the changes were submitted 30 days prior to the Merits Hearing that was
scheduled for the end of 2003. Elias did not make any such changes or corrections.
       16
          In response to the IJ’s indication that she had considered the article relating to the Iraqi
Constitution, counsel for Elias responded: “And that’s fine. I have no problem. I was actually
going to ask the Court to accept judicial notice of that because I believe that it is relevant because
some of what’s in that draft constitution....” J.A. 102.

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BIA to reopen his case. According to the regulations, Elias is permitted:

              To apply or reapply for asylum or withholding of deportation based on
       changed circumstances arising in the country of nationality or in the country
       to which deportation has been ordered, if such evidence is material and was
       not available and could not have been discovered or presented at the
       previous hearing.

8 C.F.R. § 1003.2(c)(3)(ii). Thus, should Elias take this course of action, the BIA is

authorized to “reopen a closed proceeding if [Elias] includes with the petition affidavits and

the information to be considered at the reopened proceeding relating to the change in

conditions since the BIA originally considered the claim.” Zeito v. Gonzales, 152 F.App’x.

496, 503 (6th Cir. 2005); see also 8 C.F.R. § 1003.2(c)(1). The time and numerical

limitations placed on motions to reopen do not apply to motions founded upon changed

country conditions. See 8 C.F.R. § 1003.2(c)(3)(ii).

                                   III.   CONCLUSION

       In accordance with the foregoing analysis, the petition for review is denied.

                                            -16-


                       Illinois Official Reports

                                 Appellate Court

                   In re Isaiah D., 2015 IL App (1st) 143507

Appellate Court   In re ISAIAH D., a Minor, Respondent-Appellant.
Caption

District & No.    First District, First Division
                  Docket No. 1-14-3507

Filed             June 8, 2015

Decision Under    Appeal from the Circuit Court of Cook County, No. 14-JD-2396; the
Review            Hon. Andrew Berman, Judge, presiding.

Judgment          Affirmed.

Counsel on        Michael J. Pelletier, Alan D. Goldberg, and Kathleen Weck, all of
Appeal            State Appellate Defender’s Office, of Chicago, for appellant.

                  Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                  Christine Cook, and Katarina Durcova, Assistant State’s Attorneys, of
                  counsel), for the People.

Panel             JUSTICE CUNNINGHAM delivered the judgment of the court, with
                  opinion.
                  Justice Harris concurred in the judgment and opinion.
                  Justice Connors specially concurred, with opinion.
                                             OPINION

¶1       This appeal arises from the trial court’s November 25, 2014 order adjudicating
     respondent-appellant Isaiah D. (respondent) to be an habitual juvenile offender (HJO) and a
     violent juvenile offender (VJO) and sentencing him to the Department of Juvenile Justice
     (DOJJ) until the age of 21, pursuant to the mandatory sentencing provisions of the Juvenile
     Court Act of 1987 (Juvenile Court Act or Act). See 705 ILCS 405/5-815, 5-820 (West 2012).
¶2       Respondent’s appeal raises two sets of challenges to his sentence. First, respondent argues
     that his guilty plea in a prior case in 2013 cannot be used as a predicate offense to support his
     HJO or VJO status, due to the trial court’s alleged errors in admonishing respondent in the
     2013 case to ensure that his plea was knowing and voluntary. In other words, respondent
     attempts to challenge the sufficiency of the admonishments given in his 2013 guilty plea,
     within the context of this appeal of his 2014 conviction in which he was adjudicated an HJO
     and a VJO. Separately, respondent urges that the Juvenile Court Act’s mandatory sentencing
     provisions for a juvenile adjudicated an HJO or a VJO violate the eighth amendment of the
     United States Constitution and the proportionate penalties clause of the Illinois Constitution.

¶3                                         BACKGROUND
¶4       Respondent, a minor born in 1997, has been adjudicated a delinquent minor on three
     occasions–in 2012, 2013, and 2014. In conjunction with a jury verdict finding him guilty of the
     third offense in 2014, he was adjudged an HJO pursuant to section 5-815 of the Juvenile Court
     Act, which provides that a minor is an HJO upon a third adjudication of delinquency for an
     offense that would be a felony if prosecuted as an adult. 705 ILCS 405/5-815 (West 2012). At
     the same time, he was adjudicated a VJO under section 5-820 of the Juvenile Court Act. That
     provision of the Juvenile Court Act applies upon a minor’s second finding of delinquency for
     an offense that, in an adult case, “would have been a Class 2 or greater felony[,] involving the
     use or threat of physical force or violence,” or which involves a firearm. 705 ILCS 405/5-820
     (West 2012).
¶5       The respondent’s guilt in the three underlying offenses is not in dispute. In 2012,
     respondent was adjudicated a delinquent minor after entering a guilty plea to the offense of
     possession of a stolen motor vehicle. The facts of that case are not at issue in this appeal.
¶6       In 2013, in a separate case, respondent entered a plea of guilty to the charge of aggravated
     discharge of a firearm. The facts underlying the commission of that offense are not at issue in
     this appeal. However, respondent’s appeal relies largely on the circumstances surrounding his
     guilty plea in the 2013 case.
¶7       Respondent, who was represented by counsel in the 2013 case, appeared before the court
     on July 25, 2013. On that date, respondent’s counsel, the assistant State’s Attorney, and the
     court participated in a conference and reached a plea agreement: in exchange for respondent’s
     guilty plea, respondent would be sentenced to four months in the DOJJ, after which time the
     court would receive a report regarding respondent’s behavior. If the report was positive, the
     court would release respondent on probation; otherwise, respondent could be sentenced to
     additional time in the DOJJ. After the conference, respondent’s counsel informed the court that
     respondent would accept the plea agreement. According to the transcript, the court then
     addressed respondent directly as follows:

                                                 -2-
                 “THE COURT: Okay. So I told you, Isaiah, that – I spoke to your lawyer, actually,
             what I would do if you were to plead guilty to the charge of aggravated discharge of a
             firearm, that I would sentence you to four months in the Department of Justice or DOC
             with a bring back, meaning if you come back through the criminal courts that I’d put
             you back on a type of probation, but you have to come back through the court. If you
             don’t come back through this court,[1] you’ll just go back there and serve out the nine
             to twelve months, whatever it is that they give you. So do you understand that? Is that a
             yes?
                 MINOR RESPONDENT: Yes.
                 THE COURT: Okay. Now, by accepting that offer, that means that you’re pleading
             guilty to the charge. It means that there won’t be a trial today. Where the witnesses that
             were in court today would testify, you would be here with your lawyer watching it
             happen. [Where you would watch your lawyer question the witnesses2], you could be a
             witness in your own case if you chose to be. You could also call witnesses in your own
             defense if you wanted to, and the State would have to prove to me beyond a reasonable
             doubt that you did commit the crime of aggravated discharge of a firearm on June 20th.
             So that will not happen if we don’t have a trial. So are you clear about all of those
             things?
                 MINOR RESPONDENT: Yes.
                 THE COURT: Now, you know the sentence is going to be – I can’t sentence you
             today because I have to get an updated social investigation, so that will take – well, the
             problem is that I’m going to be gone for two weeks, so because of that, I guess you’re
             going to be held here one week – I’m going to credit the four months from today, but I
             won’t be able to sentence you until I come back in a couple of weeks because I just
             want to have time to get that done.
                 So this is what you want to do today then? Do you accept that offer?
                 MINOR RESPONDENT: Yes.”
¶8       Accordingly, respondent was sentenced pursuant to the July 2013 guilty plea. After serving
     four months in the DOJJ, respondent was placed on probation. There is no indication in the
     record, and respondent does not dispute, that he never moved to withdraw his guilty plea or to
     appeal from the July 2013 sentence following his guilty plea.
¶9       In 2014, the instant case arose out of a new offense committed by respondent and unrelated
     to the discharge of a firearm that was the subject of the 2013 guilty plea. On June 17, 2014,
     respondent was one of four young men who were arrested for assaulting and robbing a
     15-year-old boy, Anthony Sargent, of the dirt bike which Sargent had been riding. According
     to Sargent, one of the four men struck him, causing him to lose control of the bike and fall to

         1
           In proceedings on September 24, 2014, the trial court explained that the phrase “come back
     through this court” was an inaccurate transcription of the court’s discussion of the behavioral report to
     be submitted to the court after respondent’s four months in the DOJJ had been completed. Respondent
     does not dispute this correction.
         2
           Although the original transcript from the 2013 proceedings recorded the phrase “[w]hereas you
     question the witnesses,” in proceedings on September 24, 2014, the trial court explained that the
     transcript was incorrect, and that the trial court actually said “[w]here you would watch your lawyer
     question the witnesses.” Respondent does not dispute this correction.

                                                     -3-
       the ground. Sargent testified that respondent then threw him to the ground while another
       individual removed Sargent’s cellular phone from his pocket. Respondent and the other three
       assailants took Sargent’s bike and left the scene. Respondent and the other three young men
       were arrested later that day hiding in the basement of one of the offenders’ homes, where
       Sargent’s bike and cellular phone were recovered.
¶ 10       Respondent was charged with aggravated battery and robbery. Before trial, the State filed a
       petition seeking to have respondent adjudicated as an HJO pursuant to section 5-815 of the
       Juvenile Court Act, based on his 2012, 2013, and 2014 offenses. See 705 ILCS 405/5-815
       (West 2012). In the same petition, the State also sought adjudication of respondent as a VJO
       pursuant to section 5-820 of the Act, on the basis of his 2013 guilty plea to aggravated
       discharge of a firearm and the 2014 battery and robbery. See 705 ILCS 405/5-820 (West 2012).
¶ 11       On August 14, 2014, respondent filed a motion to dismiss the State’s petition to prosecute
       him as an HJO and VJO. That motion argued that, when respondent agreed to plead guilty on
       the 2013 charge of aggravated discharge of a firearm, the trial court violated his due process
       rights by failing to determine whether respondent understood the rights that he was waiving by
       entering the plea; failing to admonish him as to the consequences of his plea and the maximum
       penalty that could be imposed; and failing to determine whether the plea was voluntary. As a
       result of the alleged deficiencies surrounding that plea, respondent argued that the 2013 plea of
       guilty to aggravated discharge of a firearm could not be used as a predicate offense to establish
       respondent’s status as either an HJO or a VJO.
¶ 12       The State opposed the motion, arguing that the trial court’s admonishments in the 2013
       plea complied with due process requirements and that respondent understood his rights and
       entered the guilty plea knowingly and voluntarily. The State argued that the court correctly
       advised respondent that after four months in the DOJJ he could be recommitted to the DOJJ for
       “whatever it is that they give you.” The State argued that the court was not required to “use
       magic words to admonish” respondent, but that it was sufficient that respondent was aware of
       his rights–specifically, that he would serve only four months in the DOJJ and be permitted to
       serve the remainder as probation rather than in the custody of DOJJ. The State claimed the trial
       court “went above and beyond and gave an in-depth description of the trial rights the minor
       was giving up” and a “complete and accurate statement of the possible consequences of
       entering the admission.” The State also noted that if respondent “had appealed or attacked the
       plea directly, any insufficiency in the admonishments could have been remedied” in the 2013
       case, and that he “should not be allowed to accept a plea agreement when it behooves him to do
       so, and then, having never attacked it directly, repudiate its collateral use and avoid the lawful
       consequences of his actions.”
¶ 13       On September 24, 2014, the trial court (which was the same judge who had presided over
       the entry of respondent’s 2013 guilty plea) heard argument and denied respondent’s motion to
       dismiss the VJO and HJO petitions. Notably, at the September 24, 2014 hearing, the trial court
       stated that there were several errors in the official transcript of the 2013 admonishments. With
       respect to the portion of the admonishments that was transcribed as the court telling respondent
       that “you have to come back through the court” during the 2013 hearing, the judge explained
       that this was an error:
               “[W]hat I really was saying and what the transcript should have said was I’m talking
               about coming back with a positive report–which rhymes with court–and that’s what we
               always say. And you’d have to come back with a report and if you don’t come back

                                                   -4-
               with a positive report ***. And so that whole paragraph is nonsensical and the real
               thing that was said was talking about coming back with a positive report to be then
               vacated. And I know all the lawyers will not question that because you’ve all heard me
               say that many times, and you know that’s a typo.”
¶ 14       The court also stated that the portion of the transcript that says “[w]hereas you question the
       witnesses” was wrong, explaining: “What I always say is [‘]where you would watch your
       lawyer question the witnesses,[’] and that’s what is said in every admonishment.” Respondent
       did not and does not dispute the trial court’s clarifications regarding the contents of its 2013
       admonishments.
¶ 15       The State argued that the admonishments were more than sufficient, as “what the Court
       admonished him would happen is exactly what did happen in that case–*** he served his four
       months; he had a positive report; and then he was placed on probation.” Respondent argued
       that the court had failed to adequately admonish him, particularly “with respect to the
       maximum punishment that can be provided.” Respondent argued that although the court had
       told respondent he could serve “9 to 12 months” after review of the report following his initial
       4 months in custody, that time frame was “a guideline, but it is not the maximum punishment
       that can be provided on a Class 1 felony.”
¶ 16       The trial court noted that “[respondent] was in fact vacated after four months and put back
       on probation,” and thus respondent “got exactly the sentence that he was promised” at the time
       of his 2013 plea. The trial court concluded that its admonishments had been sufficient, as it had
       “made sure that [respondent] understood *** ‘the things he was giving up’ and exactly the
       sentence he was going to receive, which was exactly the sentence that he did receive.” Thus,
       the court denied respondent’s motion to dismiss the State’s petition seeking to adjudicate him
       as an HJO and a VJO.
¶ 17       A jury trial proceeded with respect to respondent’s involvement in the 2014 robbery of
       Sargent. On November 5, 2014, the jury found respondent guilty of aggravated battery and
       robbery. Respondent was sentenced on November 25, 2014. As the Juvenile Court Act states
       that a juvenile who is adjudicated either an HJO or a VJO “shall” be committed to the DOJJ
       until the age of 21, the trial court entered this mandatory sentence. See 705 ILCS 405/5-815,
       5-820 (West 2012). Respondent filed a timely notice of appeal from that sentence on
       November 26, 2014; thus we have jurisdiction over his appeal pursuant to Illinois Supreme
       Court Rule 606(b). Ill. S. Ct. R. 606(b) (eff. Feb. 6, 2013). The State does not dispute that we
       have jurisdiction over respondent’s constitutional challenges to his mandatory sentence.
       However, as discussed below, the State disputes our jurisdiction with respect to respondent’s
       arguments regarding the admonishments given at the time of his 2013 guilty plea, which
       respondent faults as the predicate for his adjudication as an HJO or a VJO.

¶ 18                                            ANALYSIS
¶ 19       Before we may reach the substance of the parties’ arguments regarding the 2013
       admonishments which respondent claims were insufficient, we must first address the State’s
       contention that we lack jurisdiction to review those admonishments. The State makes multiple
       jurisdictional arguments.
¶ 20       First, the State argues that we lack jurisdiction to consider respondent’s challenge to the
       use of the 2013 plea to support his status as an HJO and a VJO because “it is not mentioned in
       respondent’s Notice of Appeal.” The State argues that “respondent only listed that he was

                                                   -5-
       appealing the robbery finding” and that his notice contained “no mention of the HJO or VJO
       findings.” Our supreme court has held that a notice of appeal is to be “liberally construed” and
       “will confer jurisdiction on an appellate court if the notice, when considered as a whole, fairly
       and adequately sets out the judgment complained of and the relief sought so that the successful
       party is advised of the nature of the appeal.” Burtell v. First Charter Service Corp., 76 Ill. 2d
       427, 433-34 (1979).
¶ 21       Liberally construed, the notice of appeal in this case encompassed the HJO and VJO
       findings. The notice of appeal is initiated by use of a form which states: “An Appeal is taken
       from the Order of Judgment described below.” The form contains a list of blank spaces for the
       appellant to provide information as to the nature of the offense, judgment, the date of
       judgment, and sentence. Although in respondent’s notice of appeal, “robbery” is handwritten
       in the entry for “offense,” the form also references the sentence of “commit[ment] to DOC
       [Department of Corrections] until 21” and the sentencing date of November 25, 2014. As that
       particular sentence was specifically mandated by the HJO and VJO provisions of the Juvenile
       Court Act, the guilty plea in the 2013 case underpinned respondent’s status as an HJO and a
       VJO and was implicated by the notice of appeal.
¶ 22       There is nothing in the applicable rules of our supreme court suggesting that the notice of
       appeal must contain further specificity. Rule 606 governs the perfection of appeals from
       juvenile court cases as well as criminal matters. Ill. S. Ct. R. 606 (eff. Feb. 6, 2013). Rule
       606(d) sets forth a sample notice of appeal form and states that a party’s “notice of appeal shall
       be substantially in the following form.” Ill. S. Ct. R. 606(d) (eff. Feb. 6, 2013). The sample
       form set forth in Rule 606(d) contains entries for “[d]ate of judgment or order,” “[o]ffense of
       which convicted” and “[s]entence.” Id. The form used by respondent in this case is
       substantially similar to that which is prescribed by Rule 606(d). The rule does not suggest that
       respondent must specifically state that he is challenging his HJO and VJO status, in addition to
       specifying the underlying judgment or sentencing order.
¶ 23       The case cited by the State regarding respondent’s allegedly insufficient notice of appeal
       concerned a civil appeal, and was not governed by Rule 606. See McGath v. Price, 342 Ill.
       App. 3d 19, 30-31 (2003). The appellate court in that case found that there was no jurisdiction
       to review an order that “was not designated in any manner whatsoever in the notice of appeal.”
       (Emphasis added.) Id. at 30. That is not the situation here, as respondent specified that he was
       appealing the November 25, 2014 order and corresponding sentence. Accordingly, we reject
       the State’s argument that respondent’s notice of appeal is insufficient to invoke appellate
       jurisdiction.
¶ 24       The State additionally challenges our jurisdiction based upon respondent’s failure to file a
       motion to withdraw his 2013 guilty plea for aggravated discharge of a firearm or to file an
       appeal from his sentence in the 2013 case, which was a separate case from the 2014 robbery
       case that adjudicated him an HJO and a VJO. The State argues that the 2013 case was the
       proper forum for respondent to challenge the adequacy of the admonishments surrounding his
       2013 guilty plea, and that his failure to contest that plea in a timely manner deprives us of
       appellate jurisdiction to consider those admonishments within the context of this subsequent
       2014 case. In other words, respondent’s adjudication as an HJO and a VJO, which was done in
       the 2014 case, rests in part upon his guilty plea entered in the 2013 case and his adjudication as
       an HJO and a VJO will only stand if the 2013 guilty plea is allowed to stand.

                                                   -6-
¶ 25        The State’s argument relies principally on our supreme court’s 2006 decision in another
       juvenile delinquency case involving a guilty plea, In re J.T., 221 Ill. 2d 338 (2006). In J.T., a
       juvenile agreed to plead guilty in exchange for a sentence of probation. Id. at 342. After the
       trial court admonished the juvenile of the consequences of the guilty plea, the court accepted
       the plea. Id. At the time that the trial court sentenced the juvenile to 18 months’ probation, the
       court admonished the juvenile that he had a right to appeal the sentence within 30 days. Id. at
       342-43. The juvenile did not move to withdraw his guilty plea or file a notice of appeal. Id. at
       343.
¶ 26        Over two months later, the State filed a petition alleging that the juvenile had violated the
       provisions of the conditions of his probation by failing to attend school and committing other
       offenses. Id. Following an evidentiary hearing, the court found that the juvenile had violated
       the provisions of his probation and committed the juvenile to the Department of Corrections.
       Id. at 344.
¶ 27        The juvenile then appealed, arguing that when the trial court sentenced him to probation, it
       had failed to properly admonish him regarding his right to seek withdrawal of his guilty plea
       pursuant to Supreme Court Rule 605 (Ill. S. Ct. R. 605 (eff. Nov. 1, 2000)), and that the case
       should be remanded to the trial court to permit him to move to withdraw his guilty plea. J.T.,
       221 Ill. 2d at 344. The juvenile in J.T. “acknowledged that he did not file a written motion to
       withdraw his plea or a notice of appeal, but argued that because juveniles have no right to
       postconviction relief, the appellate court should consider the merits of his claims in the interest
       of fairness.” Id.
¶ 28        The State responded that “because J.T. did not file a timely notice of appeal, the appellate
       court was without jurisdiction to hear any issues relating to J.T.’s guilty plea.” Id. The
       appellate court rejected that argument, holding that “where the trial court has failed to give
       proper [admonishments], the judgment may be attacked at any time.” Id. Pursuant to Supreme
       Court Rule 605(c) (Ill. S. Ct. R. 605(c) (eff. Nov. 1, 2000)), the appellate court in J.T.
       proceeded to find that the trial court’s admonishments had been insufficient because they
       failed to advise the minor, among other things, that he could have an attorney to assist him in
       the postplea motion, that he would waive any grounds not raised in the motion, and that the
       State could reinstate any charges that were dismissed as part of the plea negotiations. J.T., 221
       Ill. 2d at 344.
¶ 29        Upon appeal, our supreme court, however, concluded that the appellate court had lacked
       jurisdiction to consider the sufficiency of the admonishments given in the juvenile’s earlier
       plea. First, the supreme court noted that “the appellate court’s rationale for holding that a
       defendant may attack the judgment at any time when the trial court has failed to give proper
       [admonishments] was rejected” by a 2004 supreme court decision. Id. at 345 (citing People v.
       Jones, 213 Ill. 2d 498 (2004)). The supreme court explained that in Jones, it had concluded that
       “while the giving of improper [admonishments] constitutes error, it does not divest the circuit
       court of jurisdiction” so as to render a resulting conviction a “void” judgment that may be
       attacked at any time. Id. at 346 (citing Jones, 213 Ill. 2d at 509).
¶ 30        The supreme court further held that the appellate court’s decision “suffer[ed] from a more
       fundamental flaw–[specifically,] the appellate court lacked jurisdiction to consider the
       admonishment issue” due to the juvenile’s failure to file a timely appeal following the entry of
       judgment on the juvenile’s guilty plea. Id. The supreme court stated that “an appeal is perfected
       by the timely filing of a notice of appeal, and it is this step which vests the appellate court with

                                                    -7-
       jurisdiction.” Id. (citing Ill. S. Ct. R. 606(a) (eff. Dec. 13, 2005)). The court explained: “Rule
       604(d) requires that in order to appeal from a judgment entered upon a plea of guilty, a
       defendant must first file in the trial court a written motion to either withdraw his guilty plea or
       reconsider the sentence. [Citation.] In such cases, the notice of appeal must be filed within 30
       days of the denial of that motion. [Citation.] The appellate court may also allow the filing of a
       late notice of appeal. [Citation.]” Id.
¶ 31        The supreme court concluded: “In the present case, J.T. did not file a timely notice of
       appeal from the order sentencing him to probation, a written motion to either withdraw his plea
       or reconsider his sentence, or a motion for leave to file a late notice of appeal. Consequently,
       the appellate court had no jurisdiction to consider any issues arising from either his guilty plea
       or his sentence.” Id. at 346-47. The court concluded that “because J.T. failed to timely perfect
       an appeal from the order sentencing him to probation, the appellate court had no jurisdiction to
       consider the issue of whether the cause should be remanded for proper Rule 605
       [admonishments].” Id. at 353.
¶ 32        Notably, in addition to finding that the appellate court lacked jurisdiction, the supreme
       court in J.T. discussed the minor’s additional argument that the supreme court should exercise
       its supervisory authority to remand the case to the trial court for proper admonishments; permit
       him to file a late notice of appeal; or permit him to litigate the issue in a postconviction
       proceeding. Id. at 347. However, after reviewing the content of the trial court’s admonishments
       and noting the minor’s lengthy history of delinquency, the supreme court determined that
       “supervisory relief is not warranted.” Id. at 347-48 (noting that although the trial court’s
       admonishments “did not strictly comply with Rule 605(c), they were sufficient to put J.T. on
       notice that he could challenge his guilty plea, and that some action on his part within 30 days
       was necessary if he wished to appeal”). Further, the supreme court in J.T. specifically declined
       to “address the issue of whether juveniles can seek relief under the Post-Conviction Hearing
       Act” (725 ILCS 5/122-1 et seq. (West 2012)) on the grounds that “the parties offer[ed]
       minimal argument on this issue.” J.T., 221 Ill. 2d at 348-49.
¶ 33        Notably, Justice Freeman authored a dissenting opinion in J.T. which articulated fairness
       concerns that we find are also implicated by respondent’s appeal in this case. Justice
       Freeman’s dissent expressed concern that because the majority found that the appellate court
       lacked jurisdiction, and further did not address whether the Post-Conviction Hearing Act
       applied to juveniles, coupled with the supreme court’s failure to exercise its supervisory
       authority, J.T. was “left without remedy in spite of his age, his lack of maturity, and his limited
       mental faculties.” Id. at 359 (Freeman, J., dissenting).
¶ 34        However, Justice Freeman “agree[d] that the appellate court lacked jurisdiction because
       J.T. failed to file a timely notice of appeal or request leave to file a late appeal.” Id. at 365.
       Justice Freeman explained that he dissented because he believed that “J.T.’s personal
       circumstances, as well as the systemic differences between juveniles and adult defendants[,]
       mandate the use of supervisory authority to provide J.T. the right to meaningful review.” Id.
       Justice Freeman remarked that the majority opinion “turn[ed] a deaf ear to J.T.’s
       circumstances” by failing to “determine whether his status as a juvenile argues for the use of
       supervisory authority to afford him relief.” Id. at 371-72. Justice Freeman also criticized the
       majority for failing to address whether the Post-Conviction Hearing Act should “provide
       juveniles an avenue for a collateral attack upon a trial court’s finding of delinquency.” Id. at
       372. He wrote that he believed the “punitive nature” of proceedings under the Juvenile Court

                                                    -8-
       Act supported the application of the Post-Conviction Hearing Act. Id. at 373.3 Because the
       majority declined to either address that issue or to exercise its supervisory authority, Justice
       Freeman remarked that the majority “effectively denie[d] J.T. any avenue of redress for his
       claims.” Id. at 378. Justice Kilbride also wrote separately, concurring in the majority’s holding
       that the appellate court lacked jurisdiction but “agree[ing] with Justice Freeman that when
       juveniles have no other avenue to meaningful review, this court should exercise its supervisory
       authority to provide relief.” Id. at 354 (Kilbride, J., concurring in part and dissenting in part).
¶ 35       The State urges us in this case to strictly adhere to the ruling in J.T. Since respondent did
       not appeal from his guilty plea in the 2013 case, the majority’s holding in J.T. conclusively
       governs the issue of jurisdiction here. Thus, the State argues that we lack jurisdiction to
       consider the challenged admonishments from respondent’s 2013 case, which respondent now
       attempts to raise in the context of this appeal of the 2014 case.
¶ 36       Respondent notes, however, that in a 1987 juvenile delinquency decision with a similar
       procedural history to his case, our appellate court reviewed the admonishments given with a
       plea in a prior proceeding that was later used as a basis to find the juvenile to be an habitual
       offender. See In re J.W., 164 Ill. App. 3d 826 (1987). In J.W., the juvenile appealed from an
       order adjudicating him an habitual offender on the basis that “one of two prior findings of
       delinquency, which formed the basis of this adjudication, was made without respondent being
       properly advised of his constitutional rights.” Id. at 827. Specifically, although the
       determination of HJO status in J.W. was made after a jury found that the juvenile had
       committed an armed robbery in December 1983, the juvenile’s appeal challenged the
       sufficiency of admonishments made in connection with his April 1983 plea for a prior offense
       of burglary. Id. at 827-28. The appellate court found that the trial court’s admonishments had
       been insufficient, as the trial court “failed to ascertain whether the respondent understood that
       he had a right against self-incrimination and a right to confront his accusers” and that his plea
       waived those rights. See id. at 828-29.
¶ 37       The juvenile in J.W. argued that the “improperly obtained admission could not be used in
       finding him to be a habitual juvenile offender” (id. at 829), relying on the United States
       Supreme Court’s decision in Baldasar v. Illinois, 446 U.S. 222 (1980). Baldasar concerned an
       indigent defendant who had been convicted of misdemeanor theft in a proceeding in which he
       was not represented by counsel and had not waived his right to counsel. Id. at 223. In a
       subsequent prosecution on a second theft charge, the State introduced evidence of the prior
       conviction, pursuant to a statute under which a second conviction for the same misdemeanor
       offense could be punished as a felony. Id. (citing Ill. Rev. Stat. 1975, ch. 38, ¶ 16-1(e)(1)). The
       United States Supreme Court in Baldasar reversed the defendant’s felony conviction. The
       majority opinion did not explain its reasoning, but stated that it was reversing “[f]or the reasons
       stated in the concurring opinions” (id. at 224), and was followed by three separate
       concurrences discussing why the sixth and fourteenth amendments to the United States

           3
            Justice Freeman’s dissent noted that the supreme court has recognized that the Juvenile Court Act
       “ ‘now contains a purpose and policy section which represents a fundamental shift from the singular
       goal of rehabilitation to include the overriding concerns of protecting the public and holding juvenile
       offenders accountable for violations of the law.’ ” Id. at 374 (quoting In re A.G., 195 Ill. 2d 313, 317
       (2001), citing 705 ILCS 405/5-101 (West 1998)).

                                                      -9-
       Constitution precluded the use of the first conviction to enhance the sentence for the second
       offense. Id. at 224-29.
¶ 38        In J.W., the First District of our appellate court concluded that in light of Baldasar, the
       juvenile’s guilty plea without appropriate admonishments could not be used to support a
       determination that he was an HJO. J.W., 164 Ill. App. 3d at 830 (“[L]ike the uncounseled guilty
       plea in Baldasar, this admission was not sufficiently reliable to permit its subsequent use in
       establishing that the minor respondent was a habitual offender.”). The appellate court thus
       vacated the juvenile’s adjudication as an HJO. Id.
¶ 39        Notably, in J.W. the issue of appellate jurisdiction was not explicitly discussed or argued
       except for the following brief reference: “The State notes that the respondent failed to directly
       challenge the prior adjudication by appealing it. But we are here concerned with the collateral
       use of the adjudication.” Id. The J.W. decision noted that in Baldasar there was “no indication”
       that the defendant’s first theft conviction was ever appealed, but that the United States
       Supreme Court had nevertheless proceeded to conclude that the prior conviction was “too
       unreliable for subsequent use as a sentence-enhancing factor.” Id.
¶ 40        In this case that we now are asked to decide, the State urges that our 1987 decision in J.W.
       does not control the question of whether we have jurisdiction over respondent’s challenge to
       his 2013 plea admonishments. Instead, the State contends that our supreme court’s subsequent
       holding in J.T. established that “respondent cannot collaterally challenge a prior conviction
       that he failed to properly challenge directly.” The State argues that in light of J.T., our appellate
       court’s holding in J.W. is now “untenable.” In other words, although not explicitly stated, the
       State suggests that our supreme court’s ruling in J.T. has implicitly overruled J.W.
¶ 41        Our reading of J.T. leads us to the conclusion that we lack jurisdiction to review
       respondent’s 2013 guilty plea within the context of this current appeal of his 2014 conviction.
       We note that J.T., decided in 2006, does not explicitly discuss or overrule the appellate court’s
       1987 decision in J.W. Nonetheless, it is our view that the language of the jurisdictional holding
       of J.T. is inconsistent with the exercise of appellate jurisdiction that occurred in J.W.4 Our
       supreme court’s holding in J.T. is explicit that under Rule 606(a) (Ill. S. Ct. R. 606(a) (eff. Dec.
       13, 2005)), the “timely filing of a notice of appeal” is the determinative “step which vests the
       appellate court with jurisdiction.” J.T., 221 Ill. 2d at 346. J.T. made clear that the minor’s
       failure in that case to “file a timely notice of appeal from the order sentencing him to probation,
       a written motion to either withdraw his [guilty] plea or reconsider his sentence, or a motion for
       leave to file a late notice of appeal” was all that was necessary to foreclose appellate
       jurisdiction over “any issues arising from either his guilty plea or his sentence.” Id. at 346-47.
       That broad holding encompasses the facts of this case. Here, as in J.T., respondent received
       probation after entering a guilty plea, but he did not move to withdraw the plea and failed to
       file a timely notice of appeal from the sentence imposed on that plea. As in J.T., respondent
       only challenged the guilty plea after he was faced with a new, harsher sentence for his
       subsequent conduct after the plea. Adhering to our supreme court’s holding in J.T., we

           4
            Moreover, it is notable that the United States Supreme Court’s Baldasar decision, which was
       relied upon in J.W., has since been explicitly overruled. See Nichols v. United States, 511 U.S. 738,
       748-49 (1994) (holding that it is “consistent with the Sixth and Fourteenth Amendments” that an
       “uncounseled misdemeanor conviction, valid *** because no prison term was imposed, is also valid
       when used to enhance punishment at a subsequent conviction”).

                                                    - 10 -
       conclude that respondent’s failure to appeal from his guilty plea and corresponding sentence in
       a timely manner deprives us of jurisdiction to consider that conviction within the context of his
       appeal from the 2014 conviction.
¶ 42       Respondent argues that J.T. does not deprive us of jurisdiction because it is procedurally
       distinguishable from his situation. Respondent emphasizes that he is not attempting to
       withdraw or vacate his 2013 guilty plea and sentence. Instead, he makes the esoteric argument
       that he is challenging the use of that guilty plea as a predicate offense to support his
       adjudication as an HJO or a VJO. That is, he does not seek to eliminate the 2013 guilty plea
       altogether; rather, he seeks to prevent its collateral use to enhance his sentence in this
       subsequent case resulting from his conviction in the 2014 robbery offense. In our view,
       however, the broad holding of J.T. precludes our ability to review the 2013 guilty plea,
       notwithstanding respondent’s interesting procedural distinction. J.T. unequivocally held that
       the juvenile’s failure to file a timely notice of appeal deprived the appellate court of
       “jurisdiction to consider any issues arising from either his guilty plea or his sentence.”
       (Emphasis added.) Id. Respondent does not dispute that he failed to file a timely notice of
       appeal from that plea, and his challenge to the sufficiency of the 2013 guilty plea is certainly an
       “issue arising from” that plea, whether raised in an attempt to vacate the plea entirely or, as he
       argues, to preclude its use to support his adjudication as an HJO and a VJO in the 2014 case
       which is the subject of this appeal.
¶ 43       As we conclude that our exercise of jurisdiction over the challenged admonishments would
       be incompatible with our supreme court’s holding in J.T., we are precluded from reaching the
       merits of respondent’s arguments regarding the claimed deficiencies in his 2013 guilty plea.
       “As an appellate court, we are required to follow supreme court precedent on an issue ‘unless
       and until that conclusion is revisited by our supreme court or overruled by the United States
       Supreme Court.’ ” In re Shermaine S., 2015 IL App (1st) 142421, ¶ 26 (quoting People v.
       Fountain, 2012 IL App (3d) 090558, ¶ 23). Under our supreme court’s holding in J.T.,
       respondent cannot seek to activate this court’s power to review the allegedly insufficient
       admonishments within the context of his 2014 conviction. In other words, it is too late. We
       thus conclude that we lack jurisdiction, in the context of this appeal, to review the sufficiency
       of the admonishments given at the time of respondent’s guilty plea in his prior case in 2013.
¶ 44       Although we are bound by the holding of J.T.’s majority opinion that deprives us of
       appellate jurisdiction, we are mindful of the fairness concerns articulated in Justice Freeman’s
       dissent in J.T. and reiterated by respondent’s arguments in this appeal. Specifically, we
       acknowledge that as a juvenile, respondent is unable to make use of the Post-Conviction
       Hearing Act (725 ILCS 5/122-1 et seq. (West 2012)) to obtain collateral review of claimed
       errors in his 2013 case. An adult criminal defendant would not have those restrictions. See In
       re Timothy P., 388 Ill. App. 3d 98, 102 (2009) (“[W]e are mindful that the Post-Conviction
       Hearing Act [citation] has never been held to apply to juvenile proceedings, thereby potentially
       leaving the juvenile without a remedy for his constitutional claims.”). 5 Thus, juveniles in
       similar circumstances who fail to file a timely notice of appeal (and thus lose the ability to

           5
            Timothy P. applied the “plain error doctrine” to review the sufficiency of admonishments,
       notwithstanding the State’s argument that the juvenile had forfeited the claim. Id. at 101-02. In contrast,
       we lack jurisdiction to review the claimed errors in respondent’s 2013 case and thus the plain error
       doctrine does not permit us to review the circumstances of the admonishments given in that case.

                                                       - 11 -
       invoke appellate review pursuant to J.T.) face the risk of being wronged by insufficient
       admonishments without any procedural remedy to seek review of the claimed error.
¶ 45       However, our supreme court in J.T. considered this very concern but did not find it
       persuasive. The majority opinion in J.T. expressly noted the minor’s argument that “because
       juveniles have no right to postconviction relief,” fairness supported permitting appellate
       jurisdiction notwithstanding his failure to file a timely notice of appeal. J.T., 221 Ill. 2d at 344.
       Nonetheless, J.T. was unequivocal that it is the “timely filing of a notice of appeal *** which
       vests the appellate court with jurisdiction” pursuant to Rule 606(a), and thus the minor’s failure
       to do so was dispositive in precluding appellate jurisdiction. Id. at 346-47.
¶ 46       Our lack of appellate jurisdiction pursuant to J.T., combined with respondent’s inability to
       use the Post-Conviction Hearing Act, means that, in the words of Justice Freeman, “[t]he
       minor respondent is left without remedy.” Id. at 359 (Freeman, J., dissenting). Like Justice
       Freeman, we note that we are also “troubled” that J.T.’s holding, combined with the inability of
       juveniles to seek collateral review, “effectively denies [respondent] any avenue of redress for
       his claims.” Id. at 378-79.
¶ 47       However, as urged by Justice Freeman’s dissent in J.T., the supreme court could
       nonetheless consider whether respondent’s “status as a juvenile argues for the use of
       supervisory authority to afford him relief” from the allegedly deficient admonishments given
       in his 2013 guilty plea. Id. at 372. As noted by Justice Freeman, in another juvenile case, the
       supreme court declined to decide whether the Post-Conviction Hearing Act applied to
       juveniles but “nonetheless fashioned a remedy for the minor by remanding for further
       proceedings in compliance with Rule 604(d).” Id. at 377 (citing In re William M., 206 Ill. 2d
       595 (2003)).
¶ 48       The supreme court “will issue a supervisory order only if the normal appellate process will
       not afford adequate relief and the dispute involves a matter important to the administration of
       justice, or where intervention is necessary to keep an inferior court or tribunal from acting
       beyond the scope of its authority.” Id. at 347 (majority opinion). Respondent’s case may very
       well be one in which the supreme court determines that exercise of supervisory authority is
       warranted, in order to afford respondent an avenue of relief from the claimed errors committed
       in connection with his 2013 guilty plea.
¶ 49       In this regard, we note that the State has acknowledged that the trial court’s admonishments
       did not inform respondent of the maximum potential period of commitment, an apparent
       violation of the Juvenile Court Act. See 705 ILCS 405/5-605(2)(a) (West 2012). This court has
       held that “[a]bsent a clear articulation by the circuit court of the maximum penalty that might
       be imposed, we cannot conclude that respondent’s guilty plea was made with full knowledge
       of the potential consequences or that there was substantial compliance with” section
       5-605(a)(2) of the Juvenile Court Act. In re Timothy P., 388 Ill. App. 3d at 103. On this basis or
       other alleged deficiencies in respondent’s 2013 guilty plea, the supreme court could determine
       that exercise of its supervisory authority is warranted to prevent respondent from being left
       without a remedy. However, under our reading of J.T., this court lacks jurisdiction to afford
       respondent any relief from the claimed errors accompanying his 2013 guilty plea.
¶ 50       Apart from the issue of jurisdiction, the State additionally argues that respondent forfeited
       appellate review of any issue related to the alleged insufficiency of the admonishments at
       respondent’s 2013 guilty plea. The State also argues that, assuming we could reach the merits
       of the issue, the trial court’s admonishments were sufficient and that any purported error did

                                                    - 12 -
       not prejudice respondent. Having discussed at length why this court lacks jurisdiction to
       consider respondent’s arguments regarding his 2013 guilty plea, we need not address these
       additional arguments raised by the State.
¶ 51        In addition to his claims regarding the sufficiency of the 2013 guilty plea admonishments,
       respondent also raises constitutional challenges to the statutory provisions mandating his
       sentence of confinement until the age of 21 upon his adjudication as an HJO and a VJO. The
       Juvenile Court Act provisions regarding HJO and VJO status require, in substantially identical
       language, that once the court has found that the predicate offenses for HJO or VJO status have
       been proven, the court shall commit the minor to the DOJJ until his 21st birthday. 705 ILCS
       405/5-815, 5-820 (West 2012). Respondent argues that the mandatory nature of this sentence
       violates the eighth amendment of the United States Constitution, as well as the proportionate
       penalties clause of the Illinois Constitution, because it removes the trial court’s discretion in
       sentencing minors. However, this court has recently rejected identical constitutional
       challenges to the mandatory sentence for an HJO. See In re Shermaine S., 2015 IL App (1st)
       142421; In re A.P., 2014 IL App (1st) 140327. As set forth below, the reasoning of those
       decisions is persuasive with respect to both the HJO and VJO statutory provisions and thus
       respondent’s constitutional challenges are unavailing.
¶ 52        At the outset, we note that the Illinois Supreme Court has held that the eighth amendment
       of the United States Constitution and the proportionate penalties clause of the Illinois
       Constitution do not apply to juvenile proceedings initiated by a petition for adjudication of
       wardship. In re Rodney H., 223 Ill. 2d 510, 520-21 (2006). In that decision, our supreme court
       concluded that a juvenile adjudication of wardship was not criminal in nature and did not
       impose “punishment” within the meaning of the eighth amendment and proportionate penalties
       clause. Id. However, even if those constitutional provisions did apply, our precedent
       nonetheless has rejected respondent’s arguments.
¶ 53        Whether a statute is constitutional is a question of law, subject to de novo review.
       Shermaine S., 2015 IL App (1st) 142421, ¶ 15. “Statutes carry a strong presumption of
       constitutionality” and “[i]f reasonably possible, this court will construe a statute so as to affirm
       its constitutionality.” Id. That is, “we will resolve any doubt as to the construction of a statute
       in favor of its validity.” Id.
¶ 54        We first consider respondent’s challenge to the HJO and VJO provisions under the eighth
       amendment of the United States Constitution. “The eighth amendment, as applied to the states
       through the fourteenth amendment, prohibits the imposition of cruel and unusual punishment
       for criminal offenses that are disproportionate in relation to the offense committed or the status
       of the offender.” Id. ¶ 17 (citing U.S. Const., amend. VIII). Respondent contends that the
       provisions of the Juvenile Court Act requiring a sentence of commitment to the DOJJ until the
       age of 21 for an HJO or a VJO violate the eighth amendment, as they preclude the trial court
       “from fashioning individualized sentences for individual minors” and deprives the court of the
       “opportunity to consider the respondent’s youth, his potential rehabilitation, circumstances of
       the offense or other important factors.”
¶ 55        However, our supreme court has explicitly held that the HJO statutory provision mandating
       commitment until the age of 21 does not violate the eighth amendment. See People ex rel.
       Carey v. Chrastka, 83 Ill. 2d 67 (1980). Chrastka noted that “[s]tate legislatures have
       traditionally been allowed wide latitude in setting penalties for State crimes” and concluded
       that “we do not believe that the disposition authorized here rises to the level of cruel and

                                                    - 13 -
       unusual punishment by any stretch of the imagination.” Id. at 81-82. This court, in rejecting
       another eighth amendment challenge to the HJO mandatory sentencing provision, has recently
       reaffirmed that “we still find Chrastka to be applicable.” A.P., 2014 IL App (1st) 140327, ¶ 25
       (noting that “we are bound to honor our supreme court’s conclusion on an issue” if not revised
       by our supreme court or overruled by the United States Supreme Court); see also Shermaine S.,
       2015 IL App (1st) 142421, ¶ 26 (“Because it is still applicable, we must follow the holding in
       Chrastka and find that Shermaine’s commitment *** until the age of 21 does not violate the
       eighth amendment.”).
¶ 56        Respondent acknowledges our supreme court’s holding in Chrastka but argues that it is
       “ripe for being overturned” in light of subsequent United States Supreme Court precedent.
       Particularly, respondent relies on Miller v. Alabama, 567 U.S. ___, 132 S. Ct. 2455 (2012),
       which held that imposition of mandatory life sentences without the possibility of parole for
       persons under the age of 18 at the time of their crimes violates the eighth amendment. Id. at
       ___, 132 S. Ct at 2460. However, we have specifically rejected a juvenile’s reliance on Miller
       to challenge the continuing validity of Chrastka. See Shermaine S., 2015 IL App (1st) 142421,
       ¶¶ 21-25; A.P., 2014 IL App (1st) 140327, ¶¶ 18-22. In particular, we have found that Miller is
       distinguishable because it involved defendants who committed crimes as juveniles but were
       charged and convicted in the adult court systems. Id. ¶ 22. Moreover, we have noted that Miller
       “did not hold that the eighth amendment prohibited any mandatory penalties for juveniles, only
       mandatory natural life sentences without the possibility of parole.” (Emphasis in original.) Id.
       Thus, we have concluded that Miller is “factually distinguishable and does not support
       deviating from precedent established in Chrastka, which, as an appellate court, we are required
       to follow.” Shermaine S., 2015 IL App (1st) 142421, ¶ 25. In this case, respondent urges that
       both A.P. and Shermaine S. were wrongly decided, but raises no new argument to warrant
       departing from those decisions. Thus, we again conclude that Chrastka remains binding and
       reject respondent’s eighth amendment challenge to the HJO and VJO mandatory sentencing
       provisions.
¶ 57        Separately, respondent urges that, even if they do not violate the eighth amendment, the
       mandatory sentencing provisions nonetheless violate the proportionate penalties clause of the
       Illinois Constitution, which provides that “[a]ll penalties shall be determined both according to
       the seriousness of the offense and with the objective of restoring the offender to useful
       citizenship.” Ill. Const. 1970, art. I, § 11. Respondent contends that, “by emphasizing
       rehabilitation, Illinois provides greater protection than the federal constitution.” For this point,
       respondent relies on our supreme court’s statement in the 2012 decision People v. Clemons that
       “the limitation on penalties set forth in the second clause of article I, section 11, which focuses
       on the objective of rehabilitation, went beyond the framers’ understanding of the eighth
       amendment and is not synonymous with that provision.” People v. Clemons, 2012 IL 107821,
       ¶ 40.
¶ 58        However, our supreme court has more recently held that “the Illinois proportionate
       penalties clause is co-extensive with the eighth amendment’s cruel and unusual punishment
       clause.” People v. Patterson, 2014 IL 115102, ¶ 106 (citing In re Rodney H., 223 Ill. 2d 510,
       518 (2006)). Under that proposition, our rejection of respondent’s eighth amendment
       challenge pursuant to our supreme court’s decision in Chrastka would likewise compel
       rejection of his proportionate penalties argument. In fact, we recently applied that logic in
       rejecting a proportionate penalties challenge: “[B]ecause in Chrastka, our supreme court held

                                                    - 14 -
       that sentencing a habitual juvenile offender to a mandatory minimum sentence *** did not
       violate the eighth amendment and the proportionate penalties clause provides co-extensive
       protections, we also reject Shermaine’s challenge to the habitual juvenile offender provision
       under our state constitution.” Shermaine S., 2015 IL App (1st) 142421, ¶ 31.
¶ 59       Respondent urges that our supreme court’s statement that the proportionate penalties
       clause is “co-extensive” with the eighth amendment (Patterson, 2014 IL 115102, ¶ 106)
       should be disregarded as an “outlier” that cannot be reconciled with a long history of “cases
       recognizing the unique importance of rehabilitation, and the rehabilitation of youth in
       particular.” However, even before our supreme court decided Patterson, we had independently
       concluded that the mandatory sentencing provision of the HJO statute did not violate the
       proportionate penalties clause. See A.P., 2014 IL App (1st) 140327, ¶¶ 16-24. In A.P., we
       reasoned that “[t]he legislature is entitled to find that, in the case of a recidivist, violent
       offender such as respondent, there are no mitigating circumstances to allow for a lesser
       penalty.” Id. ¶ 23 (noting our supreme court’s statement in People v. Taylor, 102 Ill. 2d 201,
       206 (1984), that “[t]he rehabilitative objective of [the proportionate penalties clause] should
       not and does not prevent the legislature from fixing mandatory minimum penalties where it has
       been determined that no set of mitigating circumstances” would justify a lesser sentence).
¶ 60       We note that respondent’s proportionate penalties challenge relies heavily on our supreme
       court’s decision in People v. Miller, 202 Ill. 2d 328 (2002), which recognized the
       “long-standing distinction made in this state between adult and juvenile offenders” and that
       “young defendants have greater rehabilitative potential.” Id. at 341-42. Miller held that a
       mandatory life sentence was unconstitutional when applied to a 15-year-old offender
       convicted on two counts of first degree murder on an accountability theory, as it eliminated the
       sentencing court’s ability to consider factors such as the defendant’s age or degree of
       participation in the crime. Id. at 342. Nonetheless, in Shermaine S. we held that Miller is
       distinguishable from the HJO sentencing provision, and that “reliance on [Miller] to support
       [a] claim of a violation of the proportionate penalties clause is misplaced.” Shermaine S., 2015
       IL App (1st) 142421, ¶ 30 (noting that the defendant in Miller was tried as an adult and was
       subject to a natural life sentence). As we concluded in Shermaine S., our supreme court’s
       decision in Miller is distinguishable from respondent’s case and thus does not undermine the
       constitutionality of the HJO and VJO sentencing provisions.
¶ 61       We recognize that, although our decisions in A.P. and Shermaine S. concerned challenges
       only to the HJO mandatory sentencing provision in section 5-815 of the Juvenile Court Act,
       respondent here challenges both that provision and its VJO counterpart in section 5-820 of the
       Juvenile Court Act. See 705 ILCS 405/5-815, 5-820 (West 2012). However, respondent’s
       arguments are identical with respect to both provisions, and he has offered no persuasive
       reason to distinguish his case from the identical eighth amendment and proportionate penalties
       challenges that our court has rejected with respect to the HJO statutory provision mandating
       commitment until the age of 21. We see no reason why our decisions rejecting the same
       challenges to the HJO provision do not apply with equal force to the equivalent VJO provision.
       Accordingly, we conclude that respondent’s arguments with respect to both the HJO and VJO
       mandatory sentencing provisions of the Juvenile Court Act must fail.
¶ 62       For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

                                                  - 15 -
¶ 63      Affirmed.

¶ 64        JUSTICE CONNORS, specially concurring.
¶ 65        I concur with the majority that pursuant to our supreme court’s decision in J.T., we are
       compelled to find that we lack jurisdiction to afford respondent relief from the claimed errors
       accompanying his 2013 guilty plea. However, I write separately to express my concerns
       regarding the analysis in J.T., and its implications.
¶ 66        Our supreme court stated in J.T., a case that specifically analyzed proper admonishments
       of a juvenile, that the appellate process could have provided the defendant adequate relief had
       he availed himself of it, and that the case did not “involve an issue important to the
       administration of justice.” J.T., 221 Ill. 2d at 348. The court found that having chosen not to
       file a timely notice of appeal from the order in question, a written motion to either withdraw his
       plea or reconsider his sentence or a motion for leave to file a late notice of appeal, the appellate
       court lost jurisdiction to consider any issues arising from his guilty plea or his sentence and left
       the defendant “in no different position than any other defendant who chooses not to file an
       appeal.” Id. I disagree with these sentiments.
¶ 67        First, I wholeheartedly believe that this issue of properly admonishing a juvenile is
       important to the administration of justice. An incarcerated juvenile, whose liberty has been
       restrained, should have access to the same remedies and opportunities for justice as an adult
       offender facing similar circumstances. As Justice Freeman stated in his dissent in J.T.:
                    “Juveniles are a vulnerable population. As the United States Supreme Court
                observed in Eddings v. Oklahoma, [citation],
                    ‘youth is more than a chronological fact. It is a time and condition of life when a
                    person may be most susceptible to influence and to psychological damage. Our
                    history is replete with laws and judicial recognition that minors, especially in their
                    earlier years, generally are less mature and responsible than adults.’ ” Id. at 380
                    (Freeman, J., dissenting) (quoting Eddings v. Oklahoma, 455 U.S. 104, 115-16
                    (1982)).
¶ 68        Keeping the vulnerability of juveniles in mind, significant changes were made to the
       Juvenile Court Act, and as our supreme court noted in In re A.G., 195 Ill. 2d 313, 318 (2001),
       now “virtually all of the constitutional requirements of a criminal trial have been introduced
       into juvenile delinquency proceedings.” Our supreme court has also noted that an
       “incarcerated juvenile’s liberty is restrained just as effectively as that of an adult offender.” In
       re B.L.S., 202 Ill. 2d 510, 519 (2002).
¶ 69        As things stand after the decision in J.T., if a juvenile defendant who was not properly
       admonished fails to file a timely notice of appeal from a guilty plea and sentence, a written
       motion to either withdraw his plea or reconsider his sentence, or a motion for leave to file a late
       notice of appeal, the appellate court loses jurisdiction to consider any issues arising from his
       guilty plea or his sentence. This does not, as the majority opinion states in J.T., leave the
       defendant “in no different position than any other defendant who chooses not to file an
       appeal.” J.T., 221 Ill. 2d at 348. Rather, an adult defendant in the same position has the option
       of filing a petition under the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West
       2012)). However, our supreme court has refused to analyze whether the Post-Conviction
       Hearing Act applies to juveniles. See J.T., 221 Ill. 2d at 349 (declining to address the issue of

                                                    - 16 -
       whether juveniles can seek relief under the Post-Conviction Hearing Act because the “parties
       offer[ed] minimal argument on this issue”); In re William M., 206 Ill. 2d 595 (2003) (the right
       of a juvenile to file a petition under the Post-Conviction Hearing act has not been established);
       In re A.G., 195 Ill. 2d at 321-22 (this court has not reviewed holdings of the appellate court
       concluding that relief from juvenile proceedings is unavailable under the Post-Conviction
       Hearing Act).
¶ 70       It seems fundamentally unfair to me that an incarcerated juvenile who was not properly
       admonished does not have the same remedies available to him or her as an incarcerated adult
       who was not properly admonished, despite our supreme court’s expression that “virtually all of
       the constitutional requirements of a criminal trial have been introduced into juvenile
       delinquency proceedings.” In re A.G., 195 Ill. 2d at 318. I agree with Justice Freeman’s
       opinion that “the changed climate in the treatment of minors in the juvenile court system
       advocates strongly for the application of the Post-Conviction Hearing Act.” J.T., 221 Ill. 2d at
       378 (Freeman, J., dissenting).
¶ 71       Accordingly, while I agree with the majority’s opinion that in light of our supreme court’s
       finding in J.T., we lack jurisdiction to hear the issue in this case, I look forward to guidance
       from our supreme court regarding these important issues concerning juvenile justice.

                                                  - 17 -