In re Derrico G. , 2014 IL 114463 ( 2014 )

2014 IL 114463IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 114463)
In re DERRICO G., a Minor (The People of the State of Illinois, Appellant, v.
Derrico G., Appellee).
Opinion filed August 4, 2014.
JUSTICE KARMEIER delivered the judgment of the court, with opinion.
Chief Justice Garman and Justices Thomas, Kilbride, and Theis concurred in the
judgment and opinion.
Justice Burke dissented, with opinion, joined by Justice Freeman.
OPINION
¶1 At issue in this case is the constitutionality of section 5-615 of the Juvenile Court
Act of 1987 (the Act) (705 ILCS 405/5-615 (West 2010)), which, as construed by this
court in In re Veronica C., 239 Ill. 2d 134 (2010), grants a State’s Attorney, among
others, the authority to object to the entry of an order of continuance under supervision
in a juvenile case before a finding of guilt. In this case, the circuit court of Cook County
found section 5-615 unconstitutional, facially and as applied, reasoning that it violates
separation of powers, equal protection, and due process guarantees. Pursuant to
Supreme Court Rules 603 and 660(a) (Ill. S. Ct. R. 603 (eff. Feb. 6, 2013); R. 660(a)
(eff. Oct. 1, 2001)), the State’s appeal comes directly to this court. For the reasons that
follow, we reverse in part and vacate in part the judgment of the circuit court and
remand for proceedings consistent with this opinion.
¶2 PRINCIPAL STATUTE INVOLVED
¶3 At the time of proceedings below, section 5-615 of the Act (705 ILCS
405/5-615(1), (2) (West 2010)), provided in pertinent part:
Ҥ 5-615. Continuance under supervision.
(1) The court may enter an order of continuance under supervision for an
offense other than first degree murder, a Class X felony or a forcible felony (a)
upon an admission or stipulation by the appropriate respondent or minor
respondent of the facts supporting the petition and before proceeding to
adjudication, or after hearing the evidence at the trial, and (b) in the absence of
objection made in open court by the minor, his or her parent, guardian, or legal
custodian, the minor’s attorney or the State’s Attorney.
(2) If the minor, his or her parent, guardian, or legal custodian, the minor’s
attorney or State’s Attorney objects in open court to any continuance and insists
upon proceeding to findings and adjudication, the court shall so proceed.”
¶4 An amendment to the Act, effective January 1, 2014, while still preventing the
circuit court from entering an order of continuance under supervision over the State’s
Attorney’s objection before a finding of delinquency, now allows the court to
unilaterally order a continuance under supervision upon a finding of delinquency. See
Pub. Act 98-62 (eff. Jan. 15, 2014). The statute now reads:
“Sec. 5-615 Continuance under supervision.
(1) The court may enter an order of continuance under supervision for an
offense other than first degree murder, a Class X felony or a forcible felony:
(a) upon an admission or stipulation by the appropriate respondent or
minor respondent of the facts supporting the petition and before the court
makes a finding of delinquency, and in the absence of objection made in
open court by the minor, his or her parent, guardian, or legal custodian, the
minor’s attorney or the State’s Attorney; or
(b) upon a finding of delinquency and after considering the
circumstances of the offense and the history, character, and condition of the
minor, if the court is of the opinion that:
(i) the minor is not likely to commit further crimes;
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(ii) the minor and the public would be best served if the minor were
not to receive a criminal record; and
(iii) in the best interests of justice an order of continuance under
supervision is more appropriate than a sentence otherwise permitted
under this Act.” (Strikethroughs and underscores omitted.) Pub. Act
98-62 (eff. Jan. 1, 2014) (amending 705 ILCS 405/5-615 (West 2012)).
¶5 BACKGROUND
¶6 On January 26, 2012, the attorneys in this case, assistant State’s Attorney Jennifer
Bruzan, and assistant Public Defender Geraldine Nolfi, appeared before the judge in
this cause on a different charge lodged against the respondent-minor—possession of a
controlled substance—that predated the unrelated conduct which underlies the felony
charge to which respondent ultimately pled guilty herein. The respondent did not
appear. At that time, the State proffered the following evidence in support of a request
for a juvenile arrest warrant.
¶7 On January 5, 2012, Officers Connor and McCarthy were on patrol when, at 2700
West Flournoy Street in Chicago, Illinois, they observed respondent shouting, “rocks,
rocks”—a street term for crack cocaine—and passing foot traffic in an attempt to solicit
the sale of narcotics. The respondent was placed in custody, and a custodial search of
his person revealed one clear, plastic bag containing five mini-Ziploc bags ultimately
determined to contain crack cocaine.
¶8 Based on that proffer, the judge found “probable cause” for issuance of a juvenile
arrest warrant, and “urgent and immediate necessity”—presumably for detention of the
respondent. The court nonetheless decided to “enter and continue” a juvenile arrest
warrant, and instructed Ms. Nolfi to contact respondent’s mother to advise her of the
need to be present, with the respondent, at the next scheduled court date. The court and
the assistant State’s Attorney also discussed the possibility of a drug treatment program
that would result in deferred prosecution upon successful completion. At that juncture,
the State appeared to be receptive to the idea of deferred prosecution under appropriate
circumstances.
¶9 On February 10, 2012, the respondent appeared before the judge on new charges:
two counts of aggravated battery and three counts of resisting a peace officer.
Respondent’s counsel stipulated to probable cause, and the court again found “urgent
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and immediate necessity.” The court denied the State’s request for electronic
monitoring, imposed a curfew, and sent the respondent home with his older brother,
who apparently had “some history” with the judge as well. As was the case on January
26, respondent’s mother did not attend because of an ongoing health issue, represented
to be congestive heart failure. When questioned in court, respondent indicated he did
not know who his father was.
¶ 10 Respondent did not appear at the next scheduled court date; nor did his mother.
¶ 11 Neither respondent nor his mother timely appeared at the next court date, April 5,
2012, and a juvenile arrest warrant was issued. Thereafter, that same day, respondent
and his mother did appear. Counsel for the respondent then announced that the minor
would plead guilty in the aggravated battery case, and there would be a recommended
sentence. The State confirmed that there was a plea agreement, the principal terms of
which included a plea of guilty to one count of aggravated battery on a public way, the
nolle prosequi of another aggravated battery count and the striking, on leave to
reinstate, of multiple resisting charges involving three police officers, as well as the
nolle prosequi of the prior, unrelated felony charge of possession of a controlled
substance, and a “recommended” sentence of 18 months’ probation. The State
indicated before the two arrests for the aggravated battery and possession charges the
respondent “had one prior arrest on November 1, 2009, for aggravated battery with a
weapon, not a firearm *** but it looks like nothing came of that.”
¶ 12 The court then advised the respondent of the nature of the charge to which he would
plead and the possible punishment. In the latter regard, the court suggested that
supervision was possible. The following exchange then took place:
“MS. BRUZAN [Assistant State’s Attorney]: For a Class 3 felony, your
Honor?
THE COURT: Yes.
MS. BRUZAN: No.
THE COURT: Yes. Or it could be all the way up to five years in jail.
MS. BRUZAN: You’re correct in that he could receive supervision but only
if it was by agreement of all the parties.
THE COURT: Oh, well, the supreme court has yet to answer that question.”
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¶ 13 The court then digressed into a monologue concerning the status of other cases in
which it had held the consent provision of section 5-615 unconstitutional, concluding,
in the course of that discussion: “So right now in this courtroom in these four walls, if I
want to give supervision, you can take me up on appeal and tell the supremes or ask the
supremes to make a ruling.” The court then resumed its admonishments, indicating that
it had “correct[ed] the State’s Attorney here” with respect to the court’s authority to
grant supervision. The court thereafter advised the respondent of his trial rights and
ascertained that his guilty plea was voluntary. The judge then directed the State to
provide a factual basis.
¶ 14 The State indicated that Officer Lindahl would testify that on the date pertinent to
the charge, at approximately 9:55 p.m., he and other officers were dispatched to a
disturbance on the street where they encountered “a large number of people,” among
them, the respondent and his brother. Officer Lindahl would testify, while he was
assisting in the arrest of the respondent’s brother, the respondent lowered his shoulder
and charged into Officer Lindahl, attempting to knock him to the ground and, in doing
so, hit Officer Lindahl about the body. Officer Lindahl would further testify that, while
attempting then to arrest the respondent for aggravated battery, the respondent began
swinging his hands and arms and failed to follow verbal direction to put his hands
behind his back. He stiffened his arms and pulled away, refusing to be handcuffed. It
took a number of officers to properly handcuff him.
¶ 15 The respondent stipulated to those facts and persisted in his plea of guilty.
¶ 16 The court accepted the plea of guilty, but indicated it would not enter judgment on
the plea at that time. The court again referenced another case in which it had held the
consent provision of the statute unconstitutional and had placed a minor on supervision
over the objection of the State. The court suggested, in accord with its ruling there:
“[T]hat’s my thinking, but we’ll see where we’re going. And I haven’t made a decision
yet. I’m just putting everybody on notice.” The court then continued the matter for
preparation of a social investigation report, “sentencing,” and status on the possession
case, the latter because the State declined, pending “sentencing,” to immediately
nol-pros that offense. Before concluding proceedings, the court addressed the
respondent’s counsel regarding the “possibility of supervision,” and the following
colloquy ensued:
“THE COURT: Ms. Nolfi [Assistant Public Defender], this may be a
case—I’m considering the possibility of supervision.
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MS. NOLFI: Judge, I was actually trying to negotiate that because the
mother tells me that if there’s a—if there’s a probation as a tenant—if there’s
someone, a minor living in her—going to subsidize housing on probation, that
she would be evicted.
MS. BRUZAN: Your Honor, if we’re going to bring that information in,
then I would also bring in there’s other people in the household, including the
mother herself, who are currently on probation.
THE COURT: Well—
MS. BRUZAN: I mean I’m not—If we’re going to be bringing in people—
THE COURT: No, I’m not considering doing anything other than to tell
him—and I’m not doing sentencing now. I’m just telling him. I’m
contemplating—
MS. NOLFI: Right.”
¶ 17 The court then took care to clarify its role, or lack thereof, in orchestrating
circumstances that might ultimately result in a continuance under supervision:
“THE COURT: Ms. Nolfi, let me make sure the record is clear, you did not
know and I have not discussed with you the fact that I’m contemplating
supervision on this case.
MS. NOLFI: No.
THE COURT: You, in good faith, tried to the best of your ability to make it
a supervision case.
MS. NOLFI: I did.
THE COURT: And in your negotiations with the State, the lowest they
would be willing to go is probation.
MS. NOLFI: Yes.
THE COURT: And that’s fine. And I will leave it at that.”
The court then admonished the respondent and his mother that the respondent should
behave himself in the interim to the next hearing so that the court might order
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supervision at that time. The court’s admonishments were interrupted only by the
court’s chastisement of the respondent for yawning, open-mouthed, while the court
spoke, and the court’s digression into yet another discussion of the cases in which the
court had ruled the consent provision unconstitutional. In the course of that discussion,
the judge emphasized his singularity in the state’s judiciary, the amount of time this
court was taking to render a decision in one of the cases in which he found the pertinent
statute unconstitutional, i.e., In re Danielle J., No. 10 JD 336 (Cir. Ct. Cook Co.), and
how the respondent’s actions might affect the posture of this case prospectively:
“THE COURT: Right now, in any other courtroom in the state of Illinois,
by my thinking, in juvenile court, the judge has to get permission from the
State’s Attorney in order to give supervision.
I believe I’m an exception and maybe the only one that right now has found
the law unconstitutional, separate and distinctly from In Re: Tyrees C., is by the
way, In Re: Danielle J., cited the Supreme Court Number 110810. It’s not the
same number, though.
That case is up in the supreme court now waiting [sic] a resolution. It’s been
up there since July of 2010. So I’m waiting to get some guidance. But for right
now, I found that law unconstitutional. So I’m out there a lone bird out there all
by myself and it gets lonely on that limb that I’m on, but I don’t want [the
respondent] to break it off unnecessarily.”
¶ 18 At the next hearing, on May 1, 2012—what the court described as a “sentencing”
hearing—the State emphasized at the outset that the recommendation of 18 months’
probation, a component of the parties’ negotiated plea agreement, had been the
recommendation of “the State and the Public Defender.” (Emphasis added.) Ms.
Bruzan briefly stated the principal reason for the State’s insistence upon a disposition
of probation, that being the fact that the respondent “did pick up two felony cases
within a short period of time.” She noted that “[t]he State could have elected to proceed
on both of those,” which she characterized as “provable cases.” Ms. Bruzan also stated:
“I just want to make sure it’s on the record that the State would be objecting to any
supervision for the Minor.”
¶ 19 Counsel for respondent did not contradict the State’s representation that the joint
recommendation of 18 months’ probation in the parties’ plea agreement had been a
component of the agreement. Ms. Nolfi in fact conceded: “The Minor did agree to
eighteen months of felony probation on the last court date.” She did, however, suggest
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that the respondent was a candidate for supervision. She concluded: “[I]n the spirit of
the Juvenile Court Act, there’s no objection if you want to sentence the Minor to
supervision.” (Emphasis added.)
¶ 20 The court acknowledged the filing of the social investigation report, and indicated
it would be “made a part of the file and used for purposes of sentencing.” The court
noted that the probation officer had therein agreed with the recommendation of 18
months’ probation, and the court asked if he would also agree with “felony
supervision,” to which the probation officer replied affirmatively. Thereafter, the court
made no reference to the report or information contained therein, focusing instead on
constitutional issues.
¶ 21 The court first addressed whether it was “obligated” “to go along with probation”
or whether it “could impose an order of supervision.” The court mentioned various
opinions rendered by this court, including this court’s decision in In re T.W., 101 Ill. 2d
438 (1984), wherein this court upheld the consent provision of the statute against the
contention that it violated separation of powers. The court found this court’s decision in
In re T.W. was not controlling for various reasons, and noted that opinion did not, in
any event, consider an equal protection challenge to the statute. Although the court
made contradictory statements with respect to whether the court had or had not made a
finding of guilt in this case, the court ultimately distinguished this court’s decision in
People ex rel. Devine v. Stralka, 226 Ill. 2d 445 (2007), inter alia, on the ground that
the circuit court was there vacating a finding of delinquency already entered. In the
course of the court’s discussion, the court stated:
“This Court has been asked to consider supervision after a finding.
Actually, I’ve not been asked. I’m considering it myself after the finding of
guilt but before the adjudication and sentencing. And by the way, I’ve not
entered judgment on the plea. And what that means to me is the Judge Stralka
decision is not binding on this Court on this case, and I need not follow it.
Stralka’s ruling remains good law. I need to emphasize that. I’m not talking
about a motion to vacate the finding of delinquency entered and continued. In
addition, the ruling on Judge Stralka’s case in the Supreme Court never
considered the arguments of equal protection in reaching its decision.”
¶ 22 The court then demanded of the “first chair” of the assistant State’s Attorneys
present: “I would like to know which one of the attorneys actually made the decision to
make this a probation matter as versus a supervision matter.” Assistant State’s Attorney
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Karr responded that it was the policy of the State’s Attorney’s office not to agree to
supervision on any felony case, and noted, in this instance, the respondent had two
felony cases set for trial on the date of the guilty plea.
¶ 23 The court then commenced extensive questioning of the three assistant State’s
Attorneys present, asking them how many years they had been out of law school, how
many years they had been with the State’s Attorney’s office, what training they had had
pertinent to dispositional matters, and who was involved in the case review process. In
the course of the court’s inquiry, the court observed: “I’ve been in law enforcement for
41 years.” “I’ve been a judge in Juvenile Court longer—twice as long as Sarah’s—Ms.
Karr has been in the Cook County State’s Attorney’s Office.” At one point, the court
mentioned what appears to have been the only conceivable basis for its eventual
finding that the consent provision, as applied in this case, violated equal protection
guarantees: “[T]his is a felony, the Minor would be eligible for supervision if he were
in the adult system.” After the court found the consent provision unconstitutional as
violative of “separation of power,” “equal protection,” and “due process arbitrarily
enforced,” the court resumed questioning the assistant State’s Attorneys along the lines
previously suggested, and eventually invited them to “make a record of what [their]
discussion was” in this case. The following colloquy ensued:
“MR. KELLEY [Assistant State’s Attorney]: Well, Judge, that’s a policy
question, and as far as what we go in to making our office and the basis of that,
we’re not going to put that on the record.
THE COURT: Okay.
MR. KELLEY: Respectfully.
THE COURT: Oh, respectfully understood. But understand I am still
finding the law to be unconstitutional based on the reasons that I’ve already
said.
MR. KELLEY: Okay.”
¶ 24 Having found the consent provision unconstitutional, the court disregarded the
State’s objection to supervision, stating it would “sentence the Minor to a period of
eighteen months of supervision” with various attendant conditions.
¶ 25 On May 15, 2012, the cause again came before the court for a hearing on the State’s
motion to reconsider. In that motion, the State challenged the court’s ruling that the
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consent provision of section 5-615 is unconstitutional, and asked the court “to vacate
its order granting a continuance under supervision, and in its stead, enter a finding of
guilt, adjudicate Minor-Respondent a ward of the court, and sentence him to 18 months
of felony probation, the agreed upon recommendation by the Minor-Respondent and
the People at the admission and plea of guilty.” (Emphasis added.) At the outset, the
court acknowledged the lengthy citation and discussion of case law in the motion, and
ascertained that the State intended to “stand on what’s written,” and the respondent’s
counsel would “stand on the argument *** made previously.” 1
¶ 26 The court then began questioning of assistant State’s Attorney David Kelley,
attempting to elicit information regarding the internal review, evaluation, and charging
policies of the Cook County State’s Attorney’s Office, focusing on the facts of this
particular case: “[H]ave you ever approved a felony charge of aggravated battery in the
Felony Division where it involved this type of incident where it was a bump, a shoulder
bump to a police officer?” Mr. Kelley responded: “Judge, I’m sure I have. I can’t
remember the specifics, but yes. I approved many charges dealing with contact with the
police that resulted in an aggravated battery.” In a clear attempt to impugn the State’s
charging decision, and the viability of the charge to which the respondent pled after all
others had been nullified pursuant to the parties’ plea agreement, the judge then
brought his prior, personal experience as a police officer to bear upon disposition of the
case, opining that he had suffered various injuries as a police officer and “[n]one of
those were approved by Felony Assistant State’s Attorneys in Cook County.” The court
continued: “In my 12-plus years as a Chicago Police Officer, I cannot remember one
case being approved by the Assistant State’s Attorney of Cook County’s Office of a
felony involving contact of [an] insulting or provoking nature.”
¶ 27 Mr. Kelley advised the court: “I prosecuted personally cases where officers were
spit on and charged with aggravated battery as far as being the victim.”
¶ 28 The judge again related his personal experience as a police officer: “Well,
unfortunately, I also was spat on, or spit on, and none of my cases went to *** 26th &
California. I don’t know. I think that’s distinguishable from a bumping—spitting on is
quite provoking, and I would distinguish that from this case.” The judge then, while
attempting to elevate “spitting” above “bumping” in the hierarchy of “insulting” or
1
The record does not indicate that respondent’s counsel ever made an “argument”—oral or
written—that the consent provision of the statute was unconstitutional. The circuit judge raised the
matter sua sponte and then ruled the statute unconstitutional without any discernible input from
respondent’s counsel.
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“provoking” conduct, acknowledged that he had found that the consent provision
violated principles of equal protection while under the misapprehension that an adult
defendant could receive supervision in a felony case under the Criminal Code:
“I’ll be honest with you. In looking at—I’ve learned something. And
you’ve helped me learn, Mr. Kelley, being here in a number of years and a
number of times in court with the law, and I really thought in felony adult court
that the judges could give a supervision on felony cases also without approval.
Clearly, that is not the case.
And so I appreciate Ms. Bruzan bringing it to my attention. But my
argument as to this particular case is one that I think still stands and that based
on my 40-plus years in law enforcement, twelve on Chicago, twelve in the
county, and fifteen years—does that add up to 42? Close to 40? It’s over 40. As
long as it’s over 40. Me not ever having come in contact with a felony
aggravated battery for incidental—not incidental.
This was not incidental. This was direct contact, intentional direct contact
of an insulting or provoking nature. I don’t ever remember a call—a case like
that.
Now, spitting, I am absolutely distinguishing, and I don’t know—had this
been a spitting case, Ms. Nolfi, I don’t know that I would have given him
because just the nature of that. I think it’s so insulting that I am not sure that I
would have agreed to the supervision in this case.”
¶ 29 The court went on to yet again question whether the conduct supporting the offense
to which the respondent pled should have been charged as a felony. In the course of that
discussion, the court did not mention the controlled substance charge or the resisting
charges that were, respectively, nol-prossed, and stricken on leave to reinstate, as part
of the parties’ plea agreement.
¶ 30 Thereafter, the court, at length, discussed cases cited by the State in its motion to
reconsider, among them this court’s decisions in In re T.W. and Stralka. With respect
thereto, the court appeared to acknowledge, and then disregard, the impediment that
stare decisis posed to its ruling:
“THE COURT: Stare decisis. That a Court has to follow the rulings that a
previous Appellate or Supreme Court—a supervisory Court, has already ruled
on. But I tell you three judges [referencing those specially concurring in
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Stralka] have opened invitation to trial judges across the State of Illinois to
review this matter.”
¶ 31 The judge observed that the “better way” to fix what he had long believed to be a
problematic statute was to go through the legislature, a course he had pursued during
his tenure as a judge:
“I’ve waited three years and have done numerous efforts in trying to contact
the Legislative Branch—what little contacts I have in the Legislative Branch, to
see if something couldn’t be effected. Part of the problem I ran into was former
individuals who had been in the State’s Attorney’s Office that were in the
legislature or individuals that I know professionally, half of them appearing to
be soft on crime. And taking the State’s Attorneys out of the system, out of the
program, might make them look weak on crime, and they were cautious in
proceeding on that. And that’s something I won’t share—the names of the
individuals that I talked to, but that seemed to be consistent.”
¶ 32 The judge admitted, given his failure to effect the change he desired through his
contacts in the legislative branch, he was “aggressively” looking for test cases in his
judicial capacity:
“Now, after three years, I finally started to aggressively look for cases that I
believe were, for a lack of a better term, supervision worthy. And in my mind,
this case, with [the respondent], is one of those cases.”
¶ 33 In what could be aptly described as a running summary, the court acknowledged its
erroneous belief, at the time of its original ruling, that a criminal defendant charged
with a felony in criminal court could receive supervision. Nonetheless, the court cited
“remaining reasons” for its ruling, among them that the judge had not, in his “42 years”
seen “aggravated battery to a police officer involving insulting or provoking nature”
prosecuted, and Mr. Kelley had not provided “any information” to justify this action to
the court. The judge reiterated that he had been injured when he was a police officer
and the cases “all wound up on the misdemeanor call.” The court again voiced as a
consideration in its ruling the fact that the State had not provided, and declined to
provide, any guidelines to evince the standards governing charging and settlement
determinations:
“THE COURT: But you wouldn’t discuss on the record the reasoning
behind that process?
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MR. KELLEY: Judge, respectfully, we will not go into our policy regarding
charging.”
In the end, after further inquiry along these lines, the court denied the State’s motion to
reconsider.
¶ 34 The State appealed to this court from the circuit court’s ruling that the consent
provision is unconstitutional, and the court’s order of supervision, which was
necessarily predicated upon that ruling. The State asks this court to: “(1) reverse the
trial court’s judgment declaring Section 5-615(1)(b) unconstitutional, (2) vacate the
order of a continuance under supervision and (3) remand the case to the trial court for
further proceedings in conformance with 705 ILCS 405/5-705 & 710 (2012) and the
negotiated plea agreement between the parties.”
¶ 35 ANALYSIS
¶ 36 Post-briefing Motions
¶ 37 As a preliminary matter, we address the parties’ post-briefing motions, which were
taken with the case: the respondent’s motion to withdraw portions of his argument and
strike portions of the State’s reply brief and appendix; the State’s response and motion
to supplement.
¶ 38 In his brief before this court, the respondent suggested that this case is moot (1) “in
light of amendments to the juvenile supervision statute *** which removes the State’s
ability to veto a trial court’s decision to impose supervision,” and (2) the expiration of
the respondent’s original term of supervision. In its reply brief, the State responded that
the case is not moot insofar as (1) “the amendments to Section 5-615 did not eliminate
the State’s Attorney’s ‘approval provision’ in the pre-finding stage,” and (2)
respondent’s original term of supervision has not expired insofar as proceedings on
petitions for violation of supervision have, by agreement, tolled the period of
supervision during the pendency of this appeal, “thereby defeating respondent’s claim
that this appeal is moot due to the expiration of his ‘original term’ of supervision.”
(Emphasis in original.) With respect to the former argument, the State additionally
asserts: “Although the 2014 amended version contains no ‘approval provision’ once a
finding of guilt has been entered, a trial court is required to make certain specified
findings in order to continue a case under supervision in a post-finding stage.” In
support of its second contention, the State has appended to its reply brief, in
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Appendices A and B respectively, copies of two petitions for supplemental relief that
were filed in the circuit court: one alleging that the respondent violated the terms of his
supervision by failing to attend school as required and by failing to complete
court-ordered community service; the other alleging the commission of additional
criminal offenses, specifically, resisting a peace officer, battery and criminal trespass.
Also in Appendix B, the State includes a copy of a separate petition for adjudication of
wardship based upon those same offenses.
¶ 39 Respondent’s motion to strike concedes the misrepresentation in his brief
concerning the minor’s status, and makes clear: “Appellee has no objection to the State
properly supplementing the record on appeal with records indicating that Derrico is
still on supervision.” Given respondent’s acknowledged error, he requests that the
pertinent portion of his brief “be withdrawn and *** not be considered.” He specifies,
however, that he “does not concede the remaining mootness argument based on the
change in the statute itself and this argument is not withdrawn.”
¶ 40 In its response to the respondent’s motion, the State submits that some documents
appended to its reply brief are relevant to rebut the respondent’s assertion that his
supervision has terminated, while others are pertinent to any argument that this case is
moot because the minor would ultimately receive supervision after a finding of guilt
pursuant to the provisions added by amendment to section 5-615.
¶ 41 We observe that the allegation in the State’s reply brief, concerning an agreement
to continue the violation proceedings until the resolution of this appeal, is
uncontradicted by the respondent in his motion to strike. There appears to be no
disagreement that documents evincing the basis for tolling of the current period of
supervision are relevant for that purpose and thus, to that extent, are properly before
this court. We consider them for that limited purpose. Beyond that, the allegations
therein are just that—unproven allegations.
¶ 42 We next consider respondent’s contention that his mother’s criminal records are
irrelevant, were improperly appended to the State’s reply brief in Appendix C, and
should be stricken. The avowed basis for appending the mother’s criminal records to
the State’s reply brief is the assertion that the respondent, in his brief, implied that the
assistant State’s Attorney, in proceedings below, misrepresented the probationary
status of the respondent’s mother. The State’s assertion occurred on April 5, 2012,
when the assistant State’s Attorney—in response to the respondent’s claim (originating
with his mother) that probation for the respondent might result in the family’s
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eviction—stated that the respondent’s mother was herself “currently” on probation. In
his brief, in an apparent attempt to show that the assistant State’s Attorney had
misrepresented the mother’s probationary status, counsel for respondent states: “The
Social Investigation ultimately prepared by the probation department established that
the Mother had ‘previously’ been on probation and did not indicate that either she, or
any member of the household, was currently on probation.” (Emphases in original.)
The respondent also argues that the State’s misrepresentation “illustrates the
heightened adversarial role of the State” and “places context around the trial court’s
decision to allow for supervision for Derrico—to both give the first time adjudicated
minor a second chance and not to displace nine people from their home.”
¶ 43 The criminal records of the respondent’s mother, which the State has appended to
its reply brief in Appendix C, indicate that her probation had just been terminated on
March 20, 2012, days before the assistant State’s Attorney made the statement
regarding her probationary status. It does not appear that any misrepresentation was
intentional. In fact, without the criminal record the State has appended to its brief,
respondent cannot even show that there was an inaccuracy. That is so because the
social investigation report—indicating that the mother was “previously” on
probation—post-dated the assistant State’s Attorney’s statement that the mother was
“currently” on probation. Therefore, the mother could have been on probation when the
assistant State’s Attorney’s statement was made and “previously” on probation by the
time the social investigation report was filed.
¶ 44 In any event, the mother’s probationary status is only relevant because of the
specter of eviction raised by the respondent in the circuit court—eviction which had
apparently not taken place while the mother was on probation. We note that the
respondent’s mother was reported to have stated, when interviewed by the probation
officer for the social investigation report, that she had resided in “one place” for 30
years. The social investigation also recites: “According to background information the
mother was previously on probation for Possession of a Controlled Substance.” No one
in the circuit court took issue with any of the information in the report.
¶ 45 The circuit court did not mention any of this—or anything else from the social
investigation report for that matter—in rendering its ruling. More to the point, because
it is what the State may have considered, overlooked or ignored when it objected to
supervision that is relevant, the mother’s precise probationary status as of the April 5
proceeding is not, in our opinion, of determinative significance, since the assistant
State’s Attorney’s remark indicates that she was obviously aware of the mother’s
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recent probationary status, and the fact that she had not been evicted as a result thereof.
To the extent that respondent has made this an issue, we will consider that part of the
mother’s appended criminal record that indicates the mother’s probationary status had
just terminated on March 20, 2012, days before the assistant State’s Attorney made the
statement in question. The remaining portions of her criminal records will not be
considered.
¶ 46 The State’s motion to supplement the records at issue will be granted only within
the limited parameters of the foregoing discussion.
¶ 47 Mootness
¶ 48 What remains of respondent’s mootness argument is the contention that the recent
amendment of section 5-615 renders the consent provision irrelevant because the
circuit court can now, ultimately, enter an order for continuance under supervision with
or without the State’s consent. The State notes that “the amendment to Section 5-615
did not eliminate the State’s Attorney’s ‘approval provision’ in the pre-finding stage,”
and, in any event, the State suggests that the respondent in this case would not be
granted supervision pursuant to the post-finding provisions of the amended statute
because of the required findings therein, including, inter alia, that “the minor is not
likely to commit further crimes.” (Underscore omitted.) Pub. Act 98-62 (eff. Jan. 1,
2014) (amending 705 ILCS 405/5-615(1)(b)(i) (West 2012)).
¶ 49 In this respect, we reiterate that the allegations of the recent petitions filed by the
State are only allegations. So far as we know—unlike the respondent’s drug
case—there has not even been evidence adduced which would result in a finding of
probable cause. However, we reject the argument that the amendment renders this
appeal moot.
¶ 50 First, the legislature has seen fit to retain the pre-finding consent provision in the
amended statute, such that the State’s Attorney will still have the right to object to the
entry of an order of supervision prior to a finding of delinquency. In this respect, as
noted hereafter in our discussion, the legislature, in other articles of the Juvenile Court
Act, has accorded the State’s Attorney similar authority, thus underscoring the
importance the legislature has placed upon the State’s Attorney’s ability to veto
supervision and insist upon findings. See 705 ILCS 405/2-20(1), (2) (West 2012)
(applicable to proceedings involving abused, neglected or dependent minors); 705
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ILCS 405/3-21(1), (2) (West 2012) (pertaining to minors in need of authoritative
intervention). The legislature obviously did not see the consent provision as
superfluous, or a finding of delinquency as inconsequential in this regard, otherwise the
legislature would not have retained the consent provision. Retention of the provision in
the amended version of the statute thus militates against a finding that the issue before
us is moot.
¶ 51 Moreover, after a finding of delinquency, the court would have to consider the
respondent’s circumstances and make the requisite statutory findings before it could
enter an order continuing the case under supervision, all of which is speculative under
these circumstances. Specific findings are not mentioned in section 5-615(1)(a) of the
statute as amended, which will, in many cases involve negotiated dispositions. In this
case, there is also the matter of accounting for the charges that were either nol-prossed
or stricken on leave to reinstate pursuant to the parties’ plea agreement, which the
circuit court cannot simply disregard.
¶ 52 For these reasons, we conclude that this appeal is not moot.
¶ 53 Constitutionality—General Principles
¶ 54 We begin our constitutional analysis with general principles. As this court has
observed, all statutes are presumed constitutional and the party challenging a statute’s
validity bears the burden of demonstrating a clear constitutional violation. In re
Lakisha M., 227 Ill. 2d 259, 263 (2008). A court must construe a statute so as to affirm
its constitutionality, if reasonably possible. Lakisha M., 227 Ill. 2d at 263. Our review
of a statute’s constitutionality is de novo. Lakisha M., 227 Ill. 2d at 263.
¶ 55 With respect to controlling precedent, this court observed in Iseberg v. Gross, 227
Ill. 2d 78, 94-95 (2007) (quoting Chicago Bar Ass’n v. Illinois State Board of Elections,
161 Ill. 2d 502, 510 (1994)):
“ ‘The doctrine of stare decisis is the means by which courts ensure that the law
will not merely change erratically, but will develop in a principled and
intelligible fashion. Stare decisis permits society to presume that fundamental
principles are established in the law rather than in the proclivities of
individuals. The doctrine thereby contributes to the integrity of our
constitutional system of government both in appearance and in fact. Stare
decisis is not an inexorable command. However, a court will detour from the
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straight path of stare decisis only for articulable reasons, and only when the
court must bring its decisions into agreement with experience and newly
ascertained facts.’ ”
“We may not depart from stare decisis without special justification.” Iseberg, 227 Ill.
2d at 101.
¶ 56 The trial court in this case found that the statutory authority given to the State’s
Attorney under section 5-615, to object to the pre-finding granting of a continuance
under supervision, violates separation of powers, equal protection, and due process
guarantees, and that the statute is unconstitutional “both on its face and as to this
specific case.”
¶ 57 In order to successfully mount a facial challenge to a statute, the challenger must
establish that no set of circumstances exists under which the statute would be valid.
United States v. Salerno, 481 U.S. 739, 745 (1987). “Embedded in the traditional rules
governing constitutional adjudication is the principle that a person to whom a statute
may constitutionally be applied will not be heard to challenge that statute on the ground
that it may conceivably be applied unconstitutionally to others, in other situations not
before the Court.” Broadrick v. Oklahoma, 413 U.S. 601, 610 (1973). In other words, if
a statute is constitutionally applied as to the challenger, his facial challenge necessarily
fails.
¶ 58 “Due Process Arbitrarily Enforced”
¶ 59 With these principles in mind, we first address the circuit court’s finding that the
consent provision of sections 5-615(1) and 5-615(2) (705 ILCS 405/5-615(1), (2)
(West 2012) (now amended by Pub. Act 98-62 (eff. Jan. 1, 2014))) is unconstitutional
insofar as the court believed it was arbitrarily enforced in this case. In an attempt to
support the court’s “argument” that the statute is unconstitutional, and discredit the
State’s decision to object to a continuance under supervision prior to a finding of guilt,
the circuit court repeatedly pressed the presiding assistant State’s Attorneys to disclose
their training, years of experience as practicing attorneys—which the judge compared,
unfavorably, with his own 40-plus years of law enforcement experience—and the
guidelines they followed in reaching their decision. The court apparently gave little or
no consideration to the fact that multiple charges against the respondent had fallen
away as part of what appears to have been a fully negotiated plea agreement; nor did
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the court address to any significant degree matters relevant to the State’s decision, such
as the circumstances of the offense, the respondent’s prior conduct, or his family
situation.
¶ 60 Prior to enumerating the myriad facts and factors that justify the State’s decision,
we note, in passing, that the circuit court’s extensive questioning of the assistant State’s
Attorneys about matters not related to the facts of this case was inappropriate. Even the
judge, at one point, recognized that he might be violating “separation of powers” by his
intrusive questioning.
¶ 61 In People v. Stewart, 121 Ill. 2d 93, 109 (1988), this court addressed the contention
that Illinois’s death penalty statute was unconstitutional because it led to “arbitrary and
capricious application of the death penalty insofar as it allegedly delegate[d] to
prosecutors, without sufficient guidelines, the discretion to determine in which cases
the death penalty [would] be sought.” In Stewart, this court rejected that contention,
and in so doing, quoted extensively, and approvingly, from the Supreme Court’s
opinion in McCleskey v. Kemp, 481 U.S. 279 (1987), wherein the Supreme Court
recognized the propriety of allowing prosecutors to exercise discretion in seeking the
death penalty. See Stewart, 121 Ill. 2d at 111. Among the statements adopted by this
court were the following: “ ‘[T]he policy considerations behind a prosecutor’s
traditionally “wide discretion” suggest the impropriety of our requiring prosecutors to
defend their decisions to seek death penalties ***.’ ‘[T]he capacity of prosecutorial
discretion, to provide individualized justice is “firmly entrenched in American law.” ’ ”
Stewart, 121 Ill. 2d at 111 (quoting McCleskey, 481 U.S. at 296, 311-12).
¶ 62 In Stewart, this court referenced its earlier decision in People ex rel. Carey v.
Cousins, 77 Ill. 2d 531 (1979), where this court had previously addressed, and rejected,
arguments that section 9-1(d) of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38,
¶ 9-1(d)) violated due process guarantees and the separation of powers provision of the
Illinois Constitution. With respect to the former contention, this court rejected the
“claim that the power of the State’s Attorney to determine whether or not a sentencing
hearing shall be held is left to his ‘unbridled discretion,’ and that section 9-1(d) thus
violates due process,” observing that “the State’s Attorney has always enjoyed a wide
discretion in both the initiation and the management of criminal litigation.” Cousins, 77
Ill. 2d at 539. Accord People v. Williams, 147 Ill. 2d 173, 265 (1991).
¶ 63 Collectively, these cases stand for the proposition that courts may not require
prosecutors to defend their decisions to seek death penalties—the ultimate punishment.
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If that be the case—and the cited authorities so hold—how can we say that the State can
be required by a court to justify its discretionary decision to object to supervision in a
juvenile case prior to a finding of guilt? We cannot.
¶ 64 Of course, the assistant State’s Attorneys could have easily justified their decision
had they chosen to do so. The facts of the two cases in which respondent was charged
would alone have sufficed. The State in fact more than once pointed out that the
respondent had picked up two felony charges in a short time. Beyond that, however, the
facts—proven sufficiently to support the issuance of a warrant in one case (the drug
case) and to support a guilty plea in the other—establish that the respondent was in
need of a more serious deterrent than mere supervision would provide.
¶ 65 The evidence proffered in the drug case indicated that respondent was attempting to
sell crack cocaine on the street. We note that the State only charged him with
possession, though there appears to be no reason why it could not have charged
possession with intent to deliver. Further, we again point out that the State, at that
juncture, did not seem opposed to the idea of deferred prosecution under appropriate
circumstances.
¶ 66 Then, in less than a month, having already been taken into custody for attempting to
sell crack cocaine, and with a felony drug charge pending against him, respondent
committed the offense to which he ultimately pled guilty. In that regard, the respondent
stipulated to the following facts. On the date pertinent to the charge, Officer Lindahl
and other officers were dispatched to a disturbance on the street where they
encountered “a large number of people,” among them, the respondent and his brother.
While Officer Lindahl was assisting in the arrest of the respondent’s brother, the
respondent lowered his shoulder and charged into Officer Lindahl, attempting to knock
him to the ground and in doing so, hit Officer Lindahl about the body. Then, while the
officers were attempting to arrest the respondent for aggravated battery, the respondent
began swinging his hands and arms and failed to follow verbal direction to put his
hands behind his back. He stiffened his arms and pulled away, refusing to be
handcuffed. It took a number of officers to properly handcuff him.
¶ 67 We reiterate: this took place at a time when respondent already had a felony drug
charge pending against him, a circumstance that did not deter him from engaging in a
physical altercation with the officers. While the circuit court repeatedly belittled the
significance of this conduct, and engaged in nuanced attempts to distinguish it from
what the court considered the more serious act of “spitting”—an act, in the court’s
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view, that would not have warranted supervision—we see the respondent’s conduct in
a different light. It seems to us that the officers were in a potentially volatile situation.
They were on the street, at night, attempting to make an arrest, amidst a large group of
people. A physical altercation involving an additional person at the scene could only
have heightened the danger they faced. The fact that no officer suffered significant
injury does not diminish the potential for injury caused by the respondent’s conduct.
¶ 68 On these facts alone, without considering anything else, we find that the State’s
pre-finding objection to supervision was not arbitrarily exercised in this case.
However, there is more.
¶ 69 It is clear that this was a negotiated guilty plea. Consideration was shown the
respondent in the form of the State’s abandonment of what were characterized as
“provable” charges. In return, the respondent pled guilty to a single charge, with a
“recommended” disposition of 18 months’ probation. The State twice advised the court
that the disposition represented the recommendation of both “the State and the Public
Defender.” Ms. Nolfi, on behalf of the respondent, in fact conceded: “The Minor did
agree to eighteen months of felony probation.” Adding the considerations shown in the
negotiated plea to the factual milieu only strengthens our finding that the State acted
reasonably when it insisted upon a disposition of probation. However, there is still
more.
¶ 70 Clearly, when the State negotiated the plea agreement and the parties presented it to
the court, attorneys for the State were aware of at least some of the facts which were
shortly thereafter reported in the social investigation report. Obviously, Ms. Bruzan
knew that the respondent’s mother was or recently had been on probation. She was also
aware that his brother had “some history” with the judge, and that his brother had been
arrested as part of the very incident that resulted in the charge to which the respondent
pled guilty.
¶ 71 The social investigation report discloses information on, and attitudes of, family
members that suggest a lenient approach in dealing with the respondent was not in his
best interest or that of the public. In the social investigation report, respondent’s mother
was reported to have stated that she suffered from congestive heart failure and
diabetes—a fact of which the parties and court were advised when the mother was
repeatedly absent during early proceedings in this case. Thus, because of health
problems, her ability to supervise the respondent was most likely limited. Moreover,
the respondent’s mother was seemingly less than candid when she was interviewed by
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the probation officer, a troubling circumstance which calls into question her ability
and/or willingness to address the respondent’s problems going forward. For example,
the respondent’s mother stated that no one in the family “has been treated for drug or
alcohol abuse or mental illness.” “She also stated that no one [in the family] has been
arrested, on probation or incarcerated.” However, “[a]ccording to background
information [obtained by the probation officer] the mother was previously on probation
for Possession of a Controlled Substance.” Of course, we have already referenced the
arrests of her sons. According to the probation officer, the “mother stated that they have
lived in the one place for the past 30 years. She described the neighborhood as being
okay and possibly having a medium concentration of gang and drug involvement.”
“The mother stated that DCFS has never been involved” with her family. However, the
next sentence of the social investigation report states: “According to background
information DCFS was involved in the past.” The mother’s comments evince either an
inability or unwillingness to face facts. That does not bode well with respect to her
supervision of the respondent or her cooperation in his rehabilitation.
¶ 72 Then there is the respondent’s failure to acknowledge the seriousness of his
situation or the personal issues with which he must deal. Aside from his commission of
back-to-back offenses, a vignette of the former—failure to appreciate the seriousness
of his situation—can be seen in the disinterest shown by the respondent when he
yawned in the face of the judge, who was in the process of intimating to the respondent
and his counsel—before the judge even saw the social investigation report—the
judge’s inclination to put the respondent on supervision. Evidence of the respondent’s
failure to recognize his personal problems can be seen in his statement to the probation
officer that he handles frustration well, and his inconsistent admission elsewhere “that
he has punch[ed] holes in the walls in the past when he gets upset.”
¶ 73 Taking all this into account, it is quite frankly inconceivable that anyone could find
that the State’s exercise of its discretion in this case was arbitrary, resulting in a due
process violation. Any finding to the contrary minimizes the seriousness of
respondent’s conduct, completely ignores the consideration shown by the State’s
decision to nol-pros some charges and strike others with leave to reinstate, and is, in
sum, inconsistent with an impartial assessment of the circumstances. One of the
enumerated purposes of the Juvenile Court Act is to “hold each juvenile offender
directly accountable for his or her acts.” 705 ILCS 405/5-101(1)(b) (West 2012). The
respondent obviously has not appreciated the seriousness of his conduct. In this
respect, the disposition of probation—to which the parties agreed—addressed that
concern. The disposition substituted by the court—in apparent pursuit of an objective
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broader than the interests of this minor or the public—did not. A continuance under
supervision was clearly not in this respondent’s interest or that of the public.
¶ 74 Separation of Powers
¶ 75 The separation of powers clause of the Illinois Constitution provides: “The
legislative, executive and judicial branches are separate. No branch shall exercise
powers properly belonging to another.” Ill. Const. 1970, art. II, § 1. As we observed in
People v. Hammond, 2011 IL 110044, ¶ 51, our constitution does not attempt to define
legislative, executive and judicial power, as it is neither practicable nor possible to
enumerate the myriad powers of government and to declare that a given power belongs
exclusively to one branch for all time. In both theory and practice, the purpose of the
provision is to ensure that the whole power of two or more branches of government
shall not reside in the same hands. Hammond, 2011 IL 110044, ¶ 51; People v. Walker,
119 Ill. 2d 465, 473 (1988).
¶ 76 The separation of powers provision was not designed to achieve a complete divorce
among the three branches of our system of government; nor does it prescribe a division
of governmental powers into rigid, mutually exclusive compartments. Hammond, 2011
IL 110044, ¶ 52. “ ‘By necessity, the branches of government do not operate in
isolation, and between them there are some shared or overlapping powers.’ ”
Hammond, 2011 IL 110044, ¶ 52 (quoting People v. Felella, 131 Ill. 2d 525, 538
(1989)). Inevitably, there will be areas in which the separate spheres of government
overlap, and in which certain functions are shared. County of Kane v. Carlson, 116 Ill.
2d 186, 208 (1987). Put simply, the three branches of government are “ ‘parts of a
single operating government, and *** the separation of powers clause was not designed
to achieve a complete divorce between them.’ ” County of Kane, 116 Ill. 2d at 208(quoting People v. Reiner, 6 Ill. 2d 337, 342 (1955)). The determination of when, and
under what circumstances, a violation of the separation of powers doctrine has
occurred remains with the judiciary. Hammond, 2011 IL 110044, ¶ 52; Best v. Taylor
Machine Works, 179 Ill. 2d 367, 411 (1997).
¶ 77 To begin our discussion of this issue, we return to this court’s decision in Cousins.
As noted in the previous section of this opinion, this court in Cousins addressed and
rejected both due process and separation of powers arguments. In the latter respect, the
defendant’s argument focused on the fact that no death sentence could be imposed
without a sentencing proceeding, and no sentencing proceeding could take place unless
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it was requested by the prosecutor. If the prosecutor failed to request a sentencing
hearing, he or she thus precluded the imposition of a death sentence, and in that sense,
it was argued, the prosecutor participated in the sentencing process and thus usurped a
judicial function. In rejecting that position, this court cited three cases—People v.
Bombacino, 51 Ill. 2d 17 (1972); People v. Handley, 51 Ill. 2d 229 (1972); People v.
Sprinkle, 56 Ill. 2d 257 (1974)—as “embod[ying] a view of the separation of powers
provision of the Constitution opposed to that urged here.” Cousins, 77 Ill. 2d at 536.
¶ 78 Bombacino involved a provision of the Juvenile Court Act (Ill. Rev. Stat. 1967, ch.
37, ¶ 702-7(3)) that authorized the State’s Attorney to transfer a delinquency
proceeding involving a juvenile to a criminal court and thus permit prosecution of the
juvenile as an adult under the provisions of the Criminal Code. Defendant argued that
due process required the juvenile court judge to hold a hearing on the removal petition.
This court rejected that contention. The Cousins court noted, “[w]hile the constitutional
provision immediately involved in Bombacino was due process rather than separation
of powers, the decision necessarily presupposes that the determination made by the
prosecutor is not to be regarded as a judicial act.” Cousins, 77 Ill. 2d at 537.
¶ 79 Handley also involved the removal of a juvenile from juvenile court for trial in
criminal court, in that case on a charge of murder. Among other arguments was the
contention that “vesting discretion in the State’s Attorney to decide whether or not to
remove a juvenile from the jurisdiction of the juvenile court without providing any
standards to limit his discretion deprives juvenile defendants of due process and equal
protection under the law.” (Emphasis added.) Handley, 51 Ill. 2d at 232. This court
rejected that contention, stating: “Historically, the office of the State’s Attorney has
involved the exercise of a large measure of discretion in the many areas in which
State’s Attorneys must act in the performance of their duties in the administration of
justice. We do not find it constitutionally objectionable that the legislature has seen fit
to grant discretion to the State’s Attorney in removal matters under the Juvenile Court
Act, particularly in view of the fact that the purposes of the Act *** can be presumed to
be considered by State’s Attorneys in making determinations in these matters.”
Handley, 51 Ill. 2d at 233.
¶ 80 Sprinkle was cited in Cousins as expressing a similar view. This court
acknowledged that the legislature had subsequently amended the statute to reduce the
degree of prosecutorial discretion in removal cases; however, this court found “[t]hat
development does not, of course, disturb the conclusion reached in Sprinkle and its
precursors with respect to the separation of powers issue.” Cousins, 77 Ill. 2d at 539.
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¶ 81 Thus, in Cousins and the cases cited therein this court found that a statute which
allowed the prosecutor to decide when a juvenile would be subjected to prosecution as
an adult, and the substantial penalties attendant thereto, did not violate the separation of
powers provision of our constitution. Those cases sanctioned, as constitutional,
statutory provisions that gave prosecutors significant discretionary power to dictate the
range of penalties to which a juvenile would be subjected. Here, in contrast, barring an
agreement of the parties as to the suitability of a continuance under supervision, section
5-615, prior to amendment, merely allowed the prosecutor to object to supervision.
Moreover, as amended, the statute merely delays the point in the proceedings at which
the court may, under appropriate circumstances, order a continuance under
supervision. The procedural juncture to which the court’s authority to decide is now
delayed is the point at which the court normally gets to decide sentencing
matters—after a finding of guilt. The authority that the prosecutor retains under the
statute, as amended, pales by comparison to the authority that was granted to
prosecutors by the legislature, and approved as constitutional by this court, in Cousins
and cases discussed therein.
¶ 82 We note that the separation of powers finding in Cousins was justified, as well, by
this court’s opinion in People v. Phillips, 66 Ill. 2d 412, 415-16 (1977), a case
addressed by the parties herein on account of its inclusion in this court’s analysis in In
re T.W., a decision that rejected the very separation of powers argument respondent
now raises. As the Cousins court observed, in Phillips, this court “sustained a provision
of the Dangerous Drug Abuse Act [citation] which required the consent of a
defendant’s probation officer before the defendant could be allowed to avoid a pending
criminal proceeding charging the unlawful possession of a controlled substance.”
Cousins, 77 Ill. 2d at 539.
¶ 83 In Hammond, a unanimous decision, this court discussed the principle that the
legislature may “define[ ] and restrict[ ] the circumstances in which a State’s Attorney
may exercise his prosecutorial authority,” and cited Phillips, and the statute at issue
therein, as an “example of the application of this principle—theoretically
circumscribing the authority of both the circuit court and the State’s Attorney.”
(Emphasis in original.) Hammond, 2011 IL 110044, ¶ 57. In Hammond, this court
addressed its prior decision in Phillips:
“Acknowledging that the power to impose sentence is exclusively a function of
the judiciary (Phillips, 66 Ill. 2d at 415), this court noted that the situation at
hand concerned a defendant who had been charged with, but not convicted of, a
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crime. Since defendant had not been convicted of a crime at the pertinent time
for election of treatment, sentencing was not then at issue. Therefore, ‘the
authority granted to the probation officer to deny treatment under the Act to
persons charged with, but not convicted of, a criminal offense does not infringe
upon the court’s constitutional right to impose sentence.’ ” (Emphases in
original.) Hammond, 2011 IL 110044, ¶ 60 (quoting Phillips, 66 Ill. 2d at
415-16).
¶ 84 This court in Phillips, and again in Hammond, recognized that “conviction”—in
those discussions understood to mean a finding of guilt—marked a traditional
procedural boundary beyond which the judiciary was then authorized to exercise its
authority to sentence. This court has acknowledged that certain diversionary
dispositions authorized by the legislature, such as the drug treatment in Phillips, and
supervision prior to a finding of guilt in a delinquency proceeding (see In re T.W., 101
Ill. 2d at 441-42), fall on the other side of that boundary, representing pre-finding
dispositions in which the legislature may properly—and constitutionally—determine
that the executive branch should retain substantial control. See In re T.W., 101 Ill. 2d at
441-42 (“In both instances, the legislation gives the executive branch the power to
cause the proceedings to go forward within the traditional confines of the juvenile or
criminal justice systems.”); see also City of Urbana v. Andrew N.B., 211 Ill. 2d 456,
473-74, 498-99 (2004) (where the analyses of the majority and the dissent coalesced, if
nowhere else, upon the abstract principle that juvenile supervision under section 5-615
of the Act then extant—and necessarily section 5-615(1)(a) of the current version,
which retains consensual juvenile supervision as it then existed—may be entered,
without a finding of guilt, only upon the agreement of the State and the respondent).
¶ 85 Based upon the foregoing authorities and analysis, including the controlling
precedent represented by In re T.W., we hold that the consent provision of section
5-615 does not violate the separation of powers clause of our constitution.
¶ 86 Equal Protection
¶ 87 We now turn to the circuit court’s finding that the consent provision of section
5-615 violates equal protection guarantees.
¶ 88 In conducting an equal protection analysis, this court applies the same standards
under the United States Constitution and the Illinois Constitution. Wauconda Fire
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Protection District v. Stonewall Orchards, LLP, 214 Ill. 2d 417, 434 (2005). The equal
protection clause guarantees that similarly situated individuals will be treated in a
similar fashion, unless the government can demonstrate an appropriate reason to treat
them differently. People v. Whitfield, 228 Ill. 2d 502, 512 (2007). The equal protection
clause does not forbid the legislature from drawing proper distinctions in legislation
among different categories of people, but it does prohibit the government from doing
so on the basis of criteria wholly unrelated to the legislation’s purpose. Wauconda Fire
Protection District, 214 Ill. 2d at 434. Where fundamental rights are not at issue, this
court applies a rational basis scrutiny and considers whether the challenged
classification bears a rational relationship to a legitimate governmental purpose.
Whitfield, 228 Ill. 2d at 512.
¶ 89 Although the circuit court found that the consent provision of section 5-615
violated equal protection guarantees facially and as applied, the court provided no
rational for the former and, with respect to the latter, stated only: “[T]his is a felony, the
Minor would be eligible for supervision if he were in the adult system.” By the time of
the hearing on the State’s motion to reconsider, the court recognized its error, but stated
the error would not affect the court’s “argument in this particular case.” The court
offered no substitute reasoning to support the court’s “argument.”
¶ 90 In support of the court’s ruling, the respondent argues that “the State veto power
allowed in the juvenile supervision statute but not allowed in the adult supervision
statute violates the equal protection rights of juveniles.” That, the respondent contends,
is because the “adult supervision counterpart found in 730 ILCS 5/5-6-1(c)(d) (West
2010), in contrast to the juvenile supervision statute, does not require the assent of the
State’s Attorney nor does the adult statute allow the State to veto the decision of the
trial court to enter the disposition.” Counsel for respondent dismisses the State’s
observation that respondent is not similarly situated to an adult because an adult
charged with a felony would not be eligible for supervision as “miss[ing] the broader
point that under the adult system, there is no State veto power at all and [the
respondent] was eligible for supervision under 5-615.” He continues: “[I]t is not what
he was charged which made [sic] him ineligible for supervision but rather the State
veto power in 5-615.”
¶ 91 Respondent cannot simply ignore the facts of this case. He cannot disregard the
considerations he obtained in negotiations with the State, and he cannot otherwise,
figuratively, compare apples and oranges by picking and choosing the characteristics
that suit his purposes while ignoring the rest. Respondent cannot, as a threshold matter,
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establish that he is similarly situated in all relevant respects to those with whom he
would make comparison.
¶ 92 As our Supreme Court has noted, equal protection “does not forbid all
classifications” (Nordlinger v. Hahn, 505 U.S. 1, 10 (1992)), “[i]t simply keeps
governmental decisionmakers from treating differently persons who are in all relevant
respects alike.” (Emphasis added.) (Id.) Evidence of different treatment of unlike
groups does not support an equal protection claim. Fournier v. Sebelius, 718 F.3d
1110, 1124 (9th Cir. 2013).
¶ 93 Respondent would have us compare the provisions of the supervision statute in the
Juvenile Court Act with the supervision provisions applicable to adults in the Code of
Corrections, ignoring the individual, or group, characteristics of those subject to the
respective provisions, and the purposes of the comprehensive enactments in which they
are included. We note, in the latter respect, if individual and group characteristics and
circumstances do not matter, if uniformity were the only goal and the requisite to
satisfy guarantees of equal protection, then all juvenile offenders could be rendered
subject to the provisions of the Code of Corrections, and equal protection would be
satisfied. The legislature has not deemed that in the interests of juvenile offenders or
society; nor do we.
¶ 94 First and foremost, respondent cannot establish that he is similarly situated to an
adult who could take advantage of the provisions of the supervision statute in the Code
of Corrections because respondent was charged with and pled guilty to a felony, and no
similarly situated adult is eligible for supervision under that statute. Subsection (c) of
section 5-6-1 of the Code provides that a court may not “enter an order for supervision
of the defendant” if the defendant is “charged with” “a felony.” 730 ILCS 5/5-6-1(c)
(West 2010). While respondent is correct in his observation that the supervision statute
in the Code of Corrections does not give the State the right to object to the court’s entry
of an order of supervision, in order to make the case for an equal protection violation,
he has to be able to show he is similarly situated “in all relevant respects” to those who
could take advantage of the disposition provisions of that statute. He cannot.
¶ 95 For an individual like the respondent, the dispositional alternatives available under
the Juvenile Court Act are actually more favorable than those extended to a similarly
situated person under the Code of Corrections, in that the pertinent supervision
provisions of the Juvenile Court Act at least offer the possibility of supervision, with
the consent of all parties concerned, prior to a finding of guilt, and, with the recent
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amendments, the court can now order supervision after a finding of guilt, in appropriate
circumstances, without the consent of the State’s Attorney.
¶ 96 Because respondent was charged with a felony, the circuit court and the respondent
cannot establish the threshold requirement for an equal protection violation. However,
he fails to cross the threshold for another reason.
¶ 97 Respondent entered into a fully negotiated guilty plea. As part of that plea,
significant consideration was afforded the respondent in return for his plea of guilty,
consideration in the form, inter alia, of the State’s agreement not to pursue multiple
other charges originally lodged against him. Respondent voluntarily negotiated himself
into that more favorable position, and was apparently prepared to accept the
“recommended” disposition of probation as part of that comprehensive agreement,
before the court unilaterally changed that term, without giving any consideration
whatsoever to the rest of the parties’ bargain, and substituted a disposition that, under
the circumstances, was not allowed by statute. Having received the benefit of his
agreement with the State, and having passively allowed the court to give him more than
he bargained for, without giving up anything in the process, respondent now asks this
court to confirm the result of the circuit court’s advocacy on his behalf, claiming that,
had he been relegated to probation, as agreed, he would have been disadvantaged when
compared to some undefined individual who might, hypothetically, take advantage of
the provisions of the adult supervision statute. Not surprisingly, our research has not
disclosed any similar scenario, where a respondent-minor, or defendant, who entered
into a fully negotiated guilty plea, involving concessions by the State, and an agreed
sentence, then repudiated the sentence, while retaining the concessions, and claimed
that the sentence, which was inextricably tied to the concessions, constituted, or would
have constituted, an equal protection violation. This kind of bootstrapping appears to
be unprecedented.
¶ 98 We have found authority that, for purposes of equal protection analysis,
differentiates those who enter into a negotiated plea agreement from others who enter a
blind guilty plea. See People ex rel. Madigan v. Kinzer, 232 Ill. 2d 179, 186-87 (2009);
People v. Eckhardt, 127 Ill. 2d 146, 151-52 (1989). In Kinzer, this court noted that the
State’s offer of consideration for pleading guilty distinguishes a plea agreement from a
blind guilty plea, the former often entailing the dismissal of other charges and the
recommendation of a specific sentence. Kinzer, 232 Ill. 2d at 186; Eckhardt, 127 Ill. 2d
at 151-52. In Kinzer, this court found that those who enter in negotiated guilty pleas are
“not similarly situated” to those who enter blind guilty pleas. Kinzer, 232 Ill. 2d at 187.
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¶ 99 Respondent’s position ignores basic principles of fairness governing the
enforcement of plea agreements. In People v. Evans, 174 Ill. 2d 320, 327 (1996),
though the procedural context was different, this court pointed out the inequity where
the State, pursuant to a negotiated plea agreement, had dismissed other charges and
recommended a specific sentence, only to have defendants later seek modification of
the sentences to which they had earlier agreed “while holding the State to its part of the
bargain.” As an appellate panel has since observed, “this flies in the face of contract
law and constitutional concerns of fundamental fairness.” People v. Jones, 329 Ill.
App. 3d 470, 473 (2002) (citing Evans, 174 Ill. 2d at 327). More recently, this court has
reiterated that the enforceability of plea agreements is not a one-sided affair as “the
other half of the contractual equation is the benefit of the bargain accruing to the State.”
People v. Donelson, 2013 IL 113603, ¶ 19.
¶ 100 Considering these authorities, it seems to us that respondent cannot, for purposes of
equal protection analysis, liken his situation to that of an individual who pleads guilty,
unencumbered by agreements relating to his disposition, and who then stands before a
court seeking the application of the supervision provisions of the Code of Corrections.
A person in the respondent’s position would be someone who has obtained significant
concessions from the State in negotiations and who then repudiates the sentence of
probation, to which he agreed, while asking the court to give him supervision instead.
In this additional respect, the circuit court’s equal protection argument, and that of the
respondent, fails at the threshold level.
¶ 101 Moreover, respondent’s attempt to compare his circumstance, and the applicability
of the Juvenile Court Act, to persons facing sentencing under the provisions of the
Code of Corrections fails on another level. Because minors in delinquency proceedings
are generally “not subject to the severe deprivation of liberty of an adult sentence” they
are not similarly situated to adult offenders. In re Jonathon C.B., 2011 IL 107750,
¶¶ 118, 120. Indeed, though this court in In re Rodney H., 223 Ill. 2d 510, 518 (2006),
recognized that the legislature, in 1999, had “retooled” article V of the Juvenile Court
Act, we were quick to add:
“Even as the legislature recognized that the juvenile court system should
protect the public, it tempered that goal with the goal of developing delinquent
minors into productive adults, and gave the trial court options designed to reach
both goals. Article V may represent ‘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,’ but
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proceedings under the Act still are not criminal in nature. See In re A.G., 195 Ill.
2d 313, 317 (2001). ‘Delinquency proceedings are *** protective in nature and
the purpose of the Act is to correct and rehabilitate, not to punish.’ In re W.C.,
167 Ill. 2d 307, 320 (1995); see also In re Beasley, 66 Ill. 2d 385, 390 (1977),
citing McKeiver v. Pennsylvania, 403 U.S. 528, 541, 29 L. Ed. 2d 647, 658, 91
S. Ct. 1976, 1984 (1971); In re Armour, 59 Ill. 2d 102, 104 (1974) (‘The first
purpose of [a juvenile court] statute is not to punish but to correct’). Indeed, ‘no
suggestion or taint of criminality attaches to any finding of delinquency by a
juvenile court.’ In re Dow, 75 Ill. App. 3d 1002, 1006 (1979), citing People ex
rel. Hanrahan v. Felt, 48 Ill. 2d 171, 174-75 (1971); accord People v. Brazee,
333 Ill. App. 3d 43, 48 (2002).” Rodney H., 223 Ill. 2d at 520.
We have a Juvenile Court Act, separate and apart from the provisions of the Criminal
Code and the Code of Corrections, because the legislature has recognized that juveniles
are not similarly situated to adults.
¶ 102 In People v. Taylor, 221 Ill. 2d 157, 167 (2006), this court recognized that
differences remain, even after the 1999 changes to article V of the Juvenile Court Act:
“The policy that seeks to hold juveniles accountable for their actions and to
protect the public does not negate the concept that rehabilitation remains a more
important consideration in the juvenile justice system than in the criminal
justice system and that there are still significant differences between the two,
indicating that ‘the ideal of separate treatment of children is still worth
pursuing.’ ” Taylor, 221 Ill. 2d at 170 (quoting in part from McKeiver v.
Pennsylvania, 403 U.S. 528, 546 n.6 (1971) (plurality op.).
¶ 103 Juvenile proceedings are fundamentally different from criminal proceedings
(McKeiver, 403 U.S. at 541-51; Taylor, 221 Ill. 2d at 171), a difference which extends
to the role of the State. We conclude our discussion with observations on that
role—observations that have a bearing upon all of the constitutional issues raised
herein, and address the suggestion by the respondent that what he describes as “the
heightened adversarial role that the State plays in juvenile court” should disqualify the
State’s Attorney from exercising a pre-finding veto of a continuance under supervision.
¶ 104 As this court made clear in Rodney H., a petition for adjudication of wardship is not
a direct action by the State to inflict punishment. Rodney H., 223 Ill. 2d at 520-21. We
assume, as this court did in Handley, that State’s Attorneys, in making determinations
in these matters, consider the purposes and objectives of the Juvenile Court Act
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(Handley, 51 Ill. 2d at 233), which are “ ‘protective in nature *** to correct and
rehabilitate, not to punish’ ” (Rodney H., 223 Ill. 2d at 520 (quoting In re W.C., 167 Ill.
2d 307, 320 (1995))). This court has recognized that the State, “as parens patriae,”
(People v. R.G., 131 Ill. 2d 328, 344 (1989)) has a compelling interest in protecting the
welfare of children, including “the lives of delinquent minors.” In re Presley, 47 Ill. 2d
50, 56 (1970). The legislature’s determination that the State should play that role in this
and other contexts of the Juvenile Court Act, and in fact exercise the very authority
here in question, can be seen in identical statutory provisions in other articles of the
Act.
¶ 105 Like section 5-615, article II of the Act, applicable to proceedings involving
abused, neglected or dependent minors (705 ILCS 405/2-20(1), (2) (West 2012)), and
article III of the Act, pertaining to minors in need of authoritative intervention (705
ILCS 405/3-21(1), (2) (West 2012)), provide that a circuit court may enter an order of
continuance under supervision before proceeding to a finding unless a State’s
Attorney, or one of the other parties listed in the statutes, objects, in which case the
court “shall *** proceed” to “findings and adjudication.”
¶ 106 These provisions, both of which are contained in articles pertaining to the welfare
of children, list the State’s Attorney among those who would undoubtedly be
concerned with the children’s best interests. Those statutes mirror the consent
provisions found in section 5-615 of the Act. Significantly, like section 5-615, they also
demonstrate a legislative recognition that findings have consequences, and that the
State, among other interested parties, should have the right to insist that juvenile
proceedings, of whatever nature, proceed to that point.
¶ 107 As this court has noted, it is the State’s Attorney’s duty to see that justice is done
not only to the public at large, but to the accused as well. People v. Williams, 147 Ill. 2d
173, 256 (1991). Having carefully considered the facts and circumstances of this case,
we find that the State exercised its authority under section 5-615 in accordance with
that duty.
¶ 108 For the reasons stated, we find the consent provision of section 5-615
constitutional. The circuit court erred in finding otherwise and in continuing the matter
under supervision pursuant to that finding. In that respect, we reverse the circuit court’s
judgment declaring section 5-615(1)(b) unconstitutional and vacate its order of a
continuance under supervision. Consistent with our foregoing analysis, this matter will
be returned to the circuit court in the pre-finding, procedural posture it occupied when
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the circuit court unilaterally modified the parties’ plea agreement, struck down the
statute, and entered an order continuing the case under supervision. The status of the
negotiated plea agreement presented by the parties for the court’s
consideration—which necessarily entails the question of whether all of the original
charges may be resurrected if said agreement is rejected—will be the initial matter
before the circuit court.
¶ 109 Reversed in part and vacated in part, and remanded with directions.
¶ 110 JUSTICE BURKE, dissenting:
¶ 111 I disagree with the majority’s conclusion that section 5-615(1)(b) of the Juvenile
Court Act (705 ILCS 405/5-615(1)(b) (West 2010)), does not violate the separation of
powers provision of the Illinois Constitution (Ill. Const. 1970, art. II, § 1), when
applied to the facts of this case. I therefore dissent.
¶ 112 I
¶ 113 The circuit court in the case at bar was presented with a negotiated plea agreement
between the minor respondent and the State in which the respondent agreed to plead
guilty to a charge of aggravated battery on a public way in exchange for a
recommended sentence of 18 months’ probation. See 705 ILCS 405/5-605(2)(a) (West
2010) (authorizing guilty pleas for minors). When presented with the plea agreement,
the court informed the parties that it was considering rejecting the State’s
recommended sentence of probation and ordering supervision, as set forth under
section 5-615 of the Juvenile Court Act (705 ILCS 405/5-615 (West 2010)). At the time
of the proceedings in the circuit court, section 5-615 provided, in relevant part:
Ҥ 5-615. Continuance under supervision.
(1) The court may enter an order of continuance under supervision for an
offense other than first degree murder, a Class X felony or a forcible felony (a)
upon an admission or stipulation by the appropriate respondent or minor
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respondent of the facts supporting the petition and before proceeding to
adjudication, or after hearing the evidence at the trial, and (b) in the absence of
objection made in open court by the minor, his or her parent, guardian, or legal
custodian, the minor’s attorney or the State’s Attorney.
(2) If the minor, his or her parent, guardian, or legal custodian, the minor’s
attorney or State’s Attorney objects in open court to any continuance and insists
upon proceeding to findings and adjudication, the court shall so proceed.” 705
ILCS 405/5-615 (West 2010).
¶ 114 After the circuit court broached the subject of supervision, the State noted that,
under section 5-615(1)(b), its approval was necessary before the court could enter an
order of supervision. The State indicated that it objected to supervision and would
stand by its recommendation of probation.
¶ 115 Thereafter, the circuit court conducted a plea hearing. The court admonished the
respondent that, by pleading guilty, he could receive anywhere between supervision
and a maximum of five years in jail. The court also admonished the respondent that it
was not bound by the sentencing recommendation made by the State. In addition, the
circuit court advised the respondent that, by pleading guilty, he was waiving certain
constitutional rights, including the right to a trial at which the State would be required
to prove him guilty beyond a reasonable doubt. The parties also stipulated to a factual
basis which established that the respondent, while on a public street, hit a police officer
with his shoulder, attempting to knock him to the ground.
¶ 116 At the conclusion of the plea hearing, the court found that the respondent had been
advised of and understood his rights, that the plea was voluntary, and that the factual
basis to which the respondent had stipulated was sufficient to sustain a conviction for
the offense of aggravated battery on a public way. The court stated that it accepted the
minor’s plea. The circuit court subsequently noted that, although it had accepted the
respondent’s guilty plea, it was withholding entering judgment adjudicating the
respondent a ward of the court. The court then continued the case for the preparation of
a social investigation report and further proceedings.
¶ 117 At a subsequent hearing, the court held the State’s Attorney consent provision in
section 5-615(1)(b) unconstitutional and entered an order of supervision over the
objection of the State. There were three grounds for the circuit court’s ruling regarding
section 5-615(1)(b). First, the circuit court concluded that the State’s Attorney consent
provision violated the separation of powers provision of the Illinois Constitution. The
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court concluded that it is “improper for the General Assembly to give veto power to the
State’s Attorney, who is in the Executive Branch, because sentencing is an inherent
power of the Judiciary, not the Executive Branch, and to me, that is a clear violation of
the separation of power doctrine.” Second, the circuit court concluded that section
5-615(1)(b) violated principles of equal protection because it did not permit a
“[j]uvenile judge to grant a sentence of supervision” without the consent of the State’s
Attorney while adult defendants who qualified for supervision could receive the
disposition even in the absence of the State’s Attorney’s consent. And, third, because
section 5-615(1)(b) did not contain any guidelines for the State’s Attorney to apply in
determining when supervision should be allowed, the court concluded that the statute
violated principles of due process.
¶ 118 Having found the State’s Attorney consent provision unconstitutional, the circuit
court stated that it was “sentenc[ing] the [respondent] to a period of eighteen months of
supervision.” The order of supervision entered by the circuit court required the
respondent, among other things, to attend counseling sessions as directed by his
probation officer, to maintain a C average in school, and to have no contact with gangs,
guns, or drugs. The court also ordered the respondent to submit a swab for DNA
indexing (see 730 ILCS 5/5-4-3 (West 2010)). The court reiterated that it had not
entered judgment adjudicating the respondent a ward of the court because “it’s a
supervision case.”
¶ 119 The circuit court subsequently denied a motion to reconsider filed by the State. The
State then appealed the circuit court’s finding of unconstitutionality directly to this
court. Ill. S. Ct. R. 603 (eff. Feb. 6, 2013); R. 660(a) (eff. Oct. 1, 2001).
¶ 120 II
¶ 121 The majority reverses the judgment of the circuit court, holding, in part, that the
State’s Attorney consent provision of section 5-615(1)(b) does not violate the
separation of powers provision when applied to the facts of this case. I disagree.
¶ 122 The circuit court accepted the respondent’s plea of guilty to the charge of
aggravated battery on a public way. Supra ¶ 16. A guilty plea waives all
nonjurisdictional errors or irregularities and important constitutional rights, including
the right to a trial at which the State will be held to its burden of proving guilt beyond a
reasonable doubt. People v. Peeples, 155 Ill. 2d 422, 494 (1993). “ ‘When a plea of
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guilty is fairly and understandingly made, it admits every material fact alleged in the
indictment and all the elements of the crime with which an accused is legally charged,
and obviates the need of any proof whatsoever.’ ” Id. (quoting People v. Wilfong, 19 Ill.
2d 406, 409 (1960)). As this court has stated, a plea of guilty is “ ‘more than a
confession which admits that the accused did various acts; it is itself a conviction;
nothing remains but to give judgment’ ” and determine punishment. People v.
Manning, 227 Ill. 2d 403, 419 (2008) (quoting Boykin v. Alabama, 395 U.S. 238, 242
(1969)); Machibroda v. United States, 368 U.S. 487, 493 (1962) (“ ‘A plea of guilty
differs in purpose and effect from a mere admission or an extra-judicial confession; it is
itself a conviction. Like a verdict of a jury it is conclusive.’ ” (quoting Kercheval v.
United States, 274 U.S. 220, 223 (1927))). By accepting the respondent’s plea of guilty,
the circuit court in this case necessarily found that the respondent was guilty of
aggravated battery on a public way; that is what it means for a court to accept a guilty
plea.
¶ 123 It is true that the circuit court did not enter a finding of guilt in the record. However,
the court’s omission is of no moment. “A finding of guilt is unnecessary where there is
a plea of guilty. *** ‘Upon a plea of guilty or actual confession in open court, the court
has nothing to do but fix the amount of punishment and render judgment or sentence
accordingly. There is nothing for the court to find. The prisoner, by his confession, has
made a finding unnecessary.’ ” Witte v. Dowd, 102 N.E.2d 630, 635 (Ind. 1951)
(quoting Griffith v. State, 36 Ind. 406, 408 (1871)). Even in the absence of an express
finding of guilt, the circuit court’s acceptance of the respondent’s guilty plea
established, as a matter of law, that the respondent was guilty of committing the offense
of aggravated battery on a public way. People v. Domico, 15 Ill. 2d 590, 593 (1959)
(“[i]t is unnecessary that the court enter a finding of guilt” when the defendant has
pleaded guilty); People v. Dodge, 411 Ill. 549, 550 (1952); People v. Bute, 396 Ill. 588,
591 (1947); People v. Werner, 364 Ill. 594, 599 (1936); People v. Andrae, 295 Ill. 445,
454 (1920).
¶ 124 After accepting respondent’s plea of guilty, the circuit court entered an order of
supervision under section 5-615, evidently assuming that the “admission” or
“stipulation” required by the statute was the equivalent of, or included, guilty pleas. 2
The majority does not question this assumption by the circuit court or find that section
5-615 is inapplicable in cases where the circuit court has accepted a minor’s guilty plea.
2
Prior to the enactment of the Juvenile Justice Reform Provisions of 1998, an “admission” in
juvenile court was the equivalent of a guilty plea. See People v. Taylor, 221 Ill. 2d 157, 167 (2006); In re
A.G., 195 Ill. 2d 313, 316 (2001).
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Indeed, it is a necessary part of the majority’s analysis that supervision under section
5-615 is available following the acceptance of a guilty plea; if it were not, there would
be no need for the majority to reach the constitutionality of the State’s Attorney consent
provision. If, however, section 5-615 permits the circuit court to enter an order of
supervision when the court accepts a minor’s guilty plea and thereby finds the minor
guilty, then the State’s Attorney consent provision is unconstitutional.
¶ 125 As the majority acknowledges, a circuit court’s finding of guilt marks “a traditional
procedural boundary” (supra ¶ 84), beyond which the State’s Attorney’s
constitutionally permissible role comes to an end. Once the circuit court in this case
accepted the respondent’s plea of guilty, that fact established the respondent’s guilt and
the State’s Attorney was constitutionally prohibited from vetoing the circuit court’s
subsequent decision to order supervision for the respondent. Accordingly, when
applied to the facts of this case, the State’s Attorney consent provision under section
5-615(1)(b) violates the separation of powers provision of the Illinois Constitution.
Because the judgment of the circuit court should be affirmed on this ground, there is no
need to reach the remaining constitutional issues and I express no opinion on them.
¶ 126 For the foregoing reasons, I dissent.
¶ 127 JUSTICE FREEMAN joins in this dissent.
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