In the Interest of Danielle J , 2013 IL 110810 ( 2013 )

2013 IL 110810
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 110810)
In re DANIELLE J., a Minor (The People of the State of Illinois,
Appellant and Cross-Appellee, v. Danielle J., Appellee and Cross-
Appellant).
Opinion filed December 19, 2013.
JUSTICE BURKE delivered the judgment of the court, with
opinion.
Chief Justice Garman and Justices Freeman, Thomas, Kilbride,
and Theis concurred in the judgment and opinion.
Justice Karmeier concurred in part and dissented in part, with
opinion.
OPINION
¶1 In the course of Danielle J.’s delinquency proceedings, the circuit
court of Cook County declared section 5-615(1) of the Juvenile Court
Act of 1987 (the Act) (705 ILCS 405/5-615(1) (West 2010))
unconstitutional on its face and as applied to her. Section 5-615(1)
provides that a juvenile who is not charged with committing first
degree murder, a Class X felony or a forcible felony may obtain a
continuance under supervision “(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.” (Emphasis
added.) The circuit court held that the statutory authority given to the
State’s Attorney under section 5-615(1)(b) to object to the grant of a
continuance under supervision violates separation of powers, equal
protection and due process guarantees. The court then entered an
order, over the State’s objection, granting respondent a continuance
under supervision for one year.
¶2 For reasons that follow, we find that the trial court erred in
reaching the issue of the statute’s constitutionality. We vacate that
finding and remand for further proceedings consistent with our
opinion.
¶3 BACKGROUND
¶4 On January 27, 2010, the State filed a delinquency petition against
respondent, 15-year-old Danielle J., charging her with having
committed a misdemeanor battery in violation of section 12-3(a)(1)
of the Criminal Code of 1961(720 ILCS 5/12-3(a)(1) (West 2010)).
The petition alleged that Danielle J. was a delinquent minor because,
on January 15, 2010, while at school, she knowingly caused bodily
harm to her classmate, Jada M., by striking her in the face and chest.
¶5 On March 8, 2010, prior to the commencement of trial, the State
offered to recommend a nine-month continuance under supervision
in exchange for respondent’s guilty plea. Respondent rejected the plea
offer and the matter proceeded to trial. At trial, the State presented
two witnesses—Jada M., the alleged victim, and Ivan Navarro, a
security guard at Ace Technical Charter High School, where
respondent and Jada attended classes.
¶6 Jada testified that on January 15, 2010, at about 10:30 a.m., she
was in school and walking to a class when she was confronted by
Alesha W., another student. Alesha was accompanied by three
friends, one of whom was respondent. Jada testified that Alesha
began to argue with her and then took a swing at her. When that
happened, Navarro, one of the school’s security guards, immediately
intervened by stepping between her and Alesha. While Navarro was
holding Alesha away from Jada, respondent came around the security
guard and punched Jada in the face three to four times. At that point
a second security guard arrived and took control of respondent.
¶7 Navarro testified similarly to Jada. He said that he saw Jada and
Alesha begin to argue and immediately intervened by stepping
between the two girls in an attempt to prevent them from hitting each
other. Navarro also testified that while he was trying to keep Alesha
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and Jada apart, he looked to his left and saw that respondent was
punching Jada in the face. Navarro testified that he saw respondent hit
Jada three or four times with a closed fist before anyone was able to
stop her. Navarro also testified that he did not see Jada hit respondent.
After presenting this testimony, the State rested.
¶8 Defense counsel moved for a directed finding and the trial court
denied the motion. Counsel then called respondent to the stand. In an
effort to establish that she acted in self-defense, respondent testified
as follows. On the morning of January 15, 2010, while attending Ace
Technical Charter High School, respondent met with her friends,
Alesha, Sierra, and Chastity, and walked with them to her next class.
As they walked, Alesha told respondent that she wanted to “confront”
Jada about something. Moments later, they saw Jada exit a classroom
and start to walk in their direction. According to respondent, when
Jada was about two to three feet away, Alesha started arguing with
Jada. Respondent further testified that a security guard came up to
Jada and Alesha as they were arguing in the corridor and stepped
between them just as they both started throwing punches at each
other. According to respondent, Jada was still throwing punches as
the security guard held Alesha against the wall. Respondent claimed
that one of Jada’s punches passed by respondent’s face, barely
missing her. Respondent admitted that she was not sure whether Jada
was swinging at her or Alesha. Nonetheless, she retaliated by
punching Jada in the face. Respondent also testified that both she and
Jada continued to fight with each other until another security guard
stopped them.
¶9 After hearing closing arguments, the trial court rejected
respondent’s self-defense theory and found her guilty of misdemeanor
battery. The court then continued the matter to April 8, 2010, “for
social [history] and sentencing.”
¶ 10 On April 8, 2010, the probation officer submitted his social
history report to the court and recommended that respondent be
sentenced to one year of probation. The State agreed with that
recommendation, but suggested that respondent also be ordered to
attend anger management classes. Defense counsel agreed that anger
management classes would be appropriate, but asked if the court
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would consider “some sort of supervision” instead of probation.1 The
court responded:
“THE COURT: Mr. Tountas [defense counsel], a good
point, except juvenile law doesn’t allow me to consider.
And one of the problems I’m having with this case, and
I’m taking it under consideration, is to [sic] whether to
declare it unconstitutional as to Juvenile Court, whether or not
after a trial I have to—basically what I have to do is get the
State’s permission to enter an order for supervision. That is
not the case in the adult system.
MR. TOUNTAS: That’s correct.
THE COURT: In the adult system, even after a trial a
judge can enter an order of supervision.
The only way around that, I think, would be to find it
unconstitutional as applied to the minor. Due process, I
believe, might be one argument for that. But simply go ahead
and—you’re asking me to consider that?”
¶ 11 The trial court, finding that it was prevented from granting
Danielle a continuance under supervision by the State’s Attorney’s
objection pursuant to section 5-615(1)(b), continued the dispositional
hearing and asked both defense counsel and the State to prepare legal
memoranda regarding the constitutionality of the State’s Attorney
“approval provision” in section 5-615. A new court date was set for
June 17, 2010.
¶ 12 At the June 17, 2010, hearing, defense counsel submitted a
written motion asking the trial court to grant Danielle a continuance
under supervision over the State’s objection. Counsel asserted that the
trial court had the authority to enter such an order due to the fact that
the State’s Attorney “approval provision” in section 5-615 of the Act
is unconstitutional. Counsel also submitted a memorandum of law, as
requested by the court, in support of his claim that the State’s
Attorney “approval provision” in section 5-615(1)(b) is
unconstitutional. Respondent was not present at this hearing and the
trial court entered no ruling because the State did not have an
opportunity to prepare a written response to respondent’s motion or
1
It is clear from the record that defense counsel’s request for “some sort
of supervision” was understood as a request for a continuance under
supervision pursuant to section 5-615.
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the memorandum of law regarding the constitutionality of the statute,
as the court had requested. The court accepted defense counsel’s
tender of the documents and ordered the State to submit its response
and memorandum of law by June 25, 2010. The matter was reset for
disposition on July 1, 2010.
¶ 13 Before ending the hearing, the court asked the assistant State’s
Attorneys who were present2 about the training they received and the
guidelines they followed when deciding whether to offer or object to
supervision. It was explained that assistant State’s Attorneys receive
no formal training and are given no written guidelines on this specific
topic. It was noted, however, that newer assistant State’s Attorneys,
or “third chairs,” generally receive training on plea offers from the
“first chair” in the courtroom and this includes some instruction on
when to offer supervision and when to oppose it.
¶ 14 The court asked the assistant State’s Attorneys if they were aware
of the statutory guidelines used by courts for deciding when to grant
supervision in adult court.3 In the course of that discussion, Assistant
State’s Attorney Pillsbury pointed out that in respondent’s case a
recommendation of nine months’ supervision had been offered to the
2
The assistant State’s Attorneys in court on this date were Assistant
State’s Attorney Pillsbury and Assistant State’s Attorney Rubner, who were
standing in for Assistant State’s Attorney Omar, who had been assigned
this case, but was on vacation. Later, a supervisor, Assistant State’s
Attorney Kelley, came to the courtroom and joined in the discussion.
3
The court was making reference to section 5-6-1(c) of the Unified
Code of Corrections (730 ILCS 5/5-6-1(c) (West 2010)), which provides:
“(c) The court may, upon a plea of guilty or a stipulation by the
defendant of the facts supporting the charge or a finding of guilt, defer
further proceedings and the imposition of a sentence, and enter an order
for supervision of the defendant, if the defendant is not charged with
[various misdemeanors or a felony]. If the defendant is not barred from
receiving an order for supervision as provided in this subsection, the
court may enter an order for supervision after considering the
circumstances of the offense, and the history, character and condition
of the offender, if the court is of the opinion that:
(1) the offender is not likely to commit further crimes;
(2) the defendant and the public would be best served if the
defendant were not to receive a criminal record; and
(3) in the best interests of justice an order of supervision is more
appropriate than a sentence otherwise permitted under this Code.”
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respondent prior to trial, but was rejected. Assistant State’s Attorney
Pillsbury then commented:
“And it’s my understanding that in supervision, the idea of
supervision is that the minor is put on supervision and then no
finding will be entered if the supervision is term—is
completed satisfactorily. *** In this case, there’s already a
finding entered, so the—I guess the point of supervision is
moot. Since there’s already been a finding, you can’t go back
and erase it.”
The court responded,
“Well, that’s one theory, except in adult court, there can be a
finding of guilty and the supervisions [sic] could still be
entered. You’re aware of that; that is correct?”
¶ 15 The assistant State’s Attorney admitted she had no experience in
adult court and, therefore, was unsure of the procedure. The matter
was then held over to July 1, 2010.
¶ 16 At the July 1, 2010, hearing, defense counsel urged the court to
declare the State’s Attorney “approval provision” within section 5-
615(1) of the Juvenile Court Act unconstitutional, contending that
this provision violates separation of powers and equal protection, and
is fundamentally unfair and inconsistent with the manifest goals of
the Juvenile Court Act. Counsel then asked the court to grant
respondent a continuance under supervision notwithstanding the
State’s Attorney’s objection.
¶ 17 The State, on the other hand, argued that the “approval provision”
in section 5-615(1) is constitutional. The State contended that the
provision had previously been upheld in In re T.W., 101 Ill. 2d 438
(1984), and in People ex rel. Devine v. Stralka, 226 Ill. 2d 445
(2007), and urged the court to find the statute constitutional for that
reason. The State asked that a sentence of probation be imposed.
¶ 18 After hearing argument, the trial court entered the following
ruling:
“In the matter before this Court now in In Re Danielle J.,
10JD336, after a trial, the minor was found guilty of a battery
and no adjudication or sentence has yet to be entered. So
supervision, under the current statute, 705 ILCS 405/5-615(1),
is not barred assuming no veto by the State’s Attorney.
However, in this case, the State’s Attorney has objected to the
continuance under supervision.”
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¶ 19 The court then explained that it found the cases cited by the State
to be distinguishable or unpersuasive. Further, the court held that,
even if the statute were facially valid, i.e., if it were constitutional, in
general, for a State’s Attorney to have the authority to object to an
order of supervision, it found the State’s Attorney’s exercise of that
right in this case unconstitutional. The court reasoned that the State
had offered to recommend an order of supervision before trial, but
later objected to supervision only because Danielle had opted to go to
trial. The court found that this amounted to a “trial tax” and held that
respondent’s election to go to trial was not an appropriate factor for
the State to consider when deciding whether to object to a grant of
supervision. In addition, the court noted that the State claimed to be
objecting to the order of supervision because Danielle’s crime was
one of violence, i.e., battery. However, the court pointed out that the
State was aware of the nature of the charged crime when it agreed to
recommend supervision before trial. Thus, the court found this
purported reason for the State’s posttrial objection to be
disingenuous.
¶ 20 Finally, the court noted that the State’s memorandum confirmed
that assistant State’s Attorneys receive no formal training on when to
agree or object to an order of supervision; that there is no written
policy on when an assistant State’s Attorney should agree or object
to supervision; and there are no statutory guidelines in the Juvenile
Court Act for determining when supervision might be an appropriate
sentence, although there are statutory guidelines for granting
supervision to adults (see 730 ILCS 5/5-6-1 (West 2010)). In light of
these facts, the court held that the State’s Attorney’s exercise of her
authority to object to an order of supervision was arbitrary and, as
such, a violation of due process. The court declared section 5-615 of
the Juvenile Court Act unconstitutional on its face and as applied to
respondent, stating:
“In considering there is no rational basis for the ***
legislature to treat similarly situated adults and juveniles
differently with regard to a judge’s authority to impose
supervision, that constraining a judge’s ability to grant a
sentence of supervision is counter-intuitive to the Juvenile
Court Act’s specific goal of rehabilitation and the Act’s grant
of discretion to the judge’s determining the best interest of the
juvenile and given the State’s Attorney’s veto power over the
authority of supervision, I’m finding it to be a violation of
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separation of powers and of equal protection and of due
process.”
¶ 21 Having declared the State’s Attorney “approval provision” in
section 5-615 unconstitutional, the trial court entered an order
granting respondent a continuance under supervision over the State’s
Attorney’s objection. Pursuant to the order, Danielle was subject to
court supervision for one year, during which time she was required to
continue attending school, complete 20 hours of community service,
and refrain from any gang, gun, or drug contact. Danielle also was
referred to the Clinical Interventions Unit for anger management and
individual counseling.
¶ 22 On July 13, 2010, the court amended the above ruling and, in
conformance with Supreme Court Rule 18, issued an order finding
section 5-615(1) of the Juvenile Court Act unconstitutional because
it does not permit a continuance under supervision if the State’s
Attorney objects in open court. The grounds listed were: violation of
separation of powers; violation of equal protection; and “violation of
due process arbitrarily enforced.”
¶ 23 The State appealed directly to this court pursuant to Supreme
Court Rule 603 (eff. Oct. 1, 2010).
¶ 24 ANALYSIS
¶ 25 Although the State comes before this court on direct appeal from
the circuit court’s ruling that section 5-615(1) of the Juvenile Court
Act (705 ILCS 405/5-615(1) (West 2010)) is unconstitutional, the
State presents no argument regarding the constitutionality of this
statutory provision. Instead, relying on our decision in In re Veronica
C., 239 Ill. 2d 134 (2010), the State contends that the trial court erred
in reaching the issue of the statute’s constitutionality and, therefore,
the ruling should be reversed.
¶ 26 We agree that our decision in Veronica C. controls the resolution
of this appeal. In Veronica C., the respondent-minor, like Danielle
here, was charged with misdemeanor battery against a schoolmate,
was tried and found guilty as charged. See In re Veronica C., 239 Ill.
2d at 138. A continuance under supervision was not requested prior
to the court entering a finding of guilt. After the matter proceeded
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past the first phase proceedings4 to adjudication and sentencing,
defense counsel argued that Veronica should be adjudicated
delinquent and her case closed with no sentence imposed. Id. at 141.
The court rejected that proposal and imposed a sentence of 12
months’ probation.
¶ 27 Veronica appealed to the appellate court, where, for the first time,
she challenged the constitutionality of the State’s Attorney “approval
provision” in section 5-615(1). Veronica argued that the statute
violates equal protection and separation of powers because it permits
the State’s Attorney to bar the circuit court from granting a minor a
continuance under supervision. The appellate court upheld the
constitutionality of the statute and affirmed the circuit court’s
judgment and sentence.
¶ 28 We granted Veronica’s petition for leave to appeal and affirmed
the appellate court’s judgment, but did not reach the issue of the
statute’s constitutionality. Rather, we held that Veronica lacked
standing to challenge the constitutionality of the State’s Attorney
“approval provision” in section 5-615(1) because she had not been
adversely affected by the operation of that provision. Id. at 147 (“A
party may not raise a constitutional challenge to a provision of a
statute that does not affect him or her.”) (citing People v. Malchow,
193 Ill. 2d 413, 425 (2000)). In reaching that determination, we
interpreted section 5-615(1) of the Juvenile Court Act as requiring
“that the possibility of supervision be broached and considered, if at
all, before ‘proceeding to findings and adjudication.’ ” (Emphasis in
original.) Id. at 146. “Adjudication” in this context, we said, meant an
“adjudication of delinquency, the formal culmination of the first
phase proceedings.” Id. at 146 n.1. In light of our interpretation of the
statute, we held that it was the failure to broach the subject of
supervision prior to a finding of guilt being entered, and not the
State’s objection, which had prevented her from receiving a
continuance under supervision. We concluded, therefore, that even if
we were to hold the “approval provision” of the statute
unconstitutional, Veronica would not be entitled to the relief she
sought—a continuance under supervision—because the failure to
request supervision prior to a finding of guilt being entered made the
4
In Veronica C. we explained that juvenile proceedings consist of three
separate and distinct phases: the findings phase, the adjudication phase, and
the dispositional phase.
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State’s Attorney’s objections irrelevant. Accordingly, we held that
Veronica was unaffected by the statute’s operation and, thus, lacked
standing to challenge the statute’s constitutionality. For that reason,
we did not need to address that issue in her appeal.
¶ 29 In the case at bar, Danielle, like Veronica in Veronica C., was
statutorily precluded from obtaining a continuance under supervision
once the trial court entered its finding that Danielle was guilty of
misdemeanor battery. Thus, when Danielle’s attorney requested
supervision at the adjudication and sentencing hearing, that request
came too late. See In re Veronica C., 239 Ill. 2d at 146 (the plain
language of the statute requires that the possibility of supervision be
broached and considered, if at all, before proceeding to findings and
adjudication). Furthermore, once the finding of guilt was entered, not
only was defense counsel statutorily precluded from seeking a
continuance under supervision, the trial court also was statutorily
precluded from granting a continuance under supervision, regardless
of whether the State’s Attorney objected. For this reason, by the time
Danielle’s counsel sought a continuance under supervision at the
adjudication and sentencing phases of the proceedings, the statutory
veto power exercised by the State’s Attorney was no longer relevant.
Therefore, it was improper for the trial court to consider the
constitutionality of the “approval provision” within section 5-615(1).
We find that the trial court erred by doing so and, thus, vacate the
finding of unconstitutionality. In addition, because the trial court
lacked statutory authority to grant a continuance under supervision
once it found Danielle guilty, its subsequent order granting Danielle
supervision is void and must be reversed.
¶ 30 The State contends that upon reversing the order granting
Danielle a continuance under supervision, we must remand the matter
to the circuit court with instructions that the trial court enter a
disposition of probation. Danielle, however, argues in a cross-appeal5
that she received ineffective assistance of counsel, or that plain error
occurred which denied her due process, because neither her attorney
nor the trial court applied or understood the plain meaning of the
juvenile supervision statute and, as a result, failed to broach the
matter of supervision at the appropriate time. She asks that we
fashion an equitable remedy to address the prejudice she suffers as a
5
On August 28, 2012, we entered an order designating the second
argument in respondent’s brief as a cross-appeal.
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result of her counsel’s deficient performance and the fundamental
unfairness of the proceedings. She suggests two possible remedies:
(1) that we review the trial court’s finding that section 5-615 is
unconstitutional, or (2) that we remand the matter for a new first
phase proceeding. Thus, before we can decide the proper disposition
of this case, we must consider whether, as Danielle argues, she
received ineffective assistance of counsel or whether the proceedings
were fundamentally unfair, constituting plain error.
¶ 31 There is no question that a minor charged with committing an
offense, like Danielle here, is entitled to the effective assistance of
counsel in juvenile delinquency proceedings. See People v. Austin M.,
2012 IL 111194, ¶ 76 (minors in delinquency proceedings have a
nonwaivable statutory right to counsel, as well as a constitutional
right to effective assistance of counsel). The standard utilized to
gauge the effectiveness of counsel in juvenile proceedings is the
Strickland standard, used in criminal cases. See Strickland v.
Washington, 466 U.S. 668 (1984). Under this standard, ineffective
assistance of counsel is established if the minor can demonstrate: (1)
counsel’s performance failed to meet an objective standard of
competence and (2) counsel’s deficient performance resulted in
prejudice to the minor. See People v. Denzel W., 237 Ill. 2d 285
(2010); People v. Evans, 186 Ill. 2d 83, 93 (1999).
¶ 32 Further, under Illinois Supreme Court Rule 615 and Illinois’
plain-error doctrine, a reviewing court may consider defects in
proceedings affecting substantial rights if a clear and obvious error
occurred and that error affected the fairness of the proceedings and
challenged the integrity of the judicial process. People v. Piatkowski,
225 Ill. 2d 551, 565 (2007). “Plain error” may properly be invoked
where a court misapprehends or misapplies the law. See People v.
Wilkins, 343 Ill. App. 3d 147, 149-50 (2003) (a trial court’s
misapprehension of a minimum sentence necessitates a new
sentencing hearing when it appears that the trial court’s
misunderstanding influenced the sentencing decision); People v.
Miranda, 329 Ill. App. 3d 837, 845 (2002) (reversal required where
trial court denied defendant a forfeiture hearing based on its
misapprehension of the law).
¶ 33 Section 5-615 permits an order of supervision “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.” We said in
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Veronica C. that the plain meaning of this language meant that, in
juvenile delinquency proceedings, a continuance under supervision
must be considered, if at all, prior to a finding of guilt being entered
and the culmination of the first-phase proceeding. Danielle asserts
that her attorney was deficient because he either did not know these
requirements or misapprehended them. Danielle also claims she was
prejudiced as a result of her attorney’s deficiency because he failed to
inform her that she risked losing the opportunity to obtain a
continuance under supervision by rejecting the State’s Attorney’s plea
offer. In addition, because of her attorney’s misapprehension of the
law, he failed to request supervision after proceeding to trial, but
before a finding of guilt was entered. As a result, she lost the
opportunity to obtain a continuance under supervision. Danielle
asserts that, had her attorney known that a continuance under
supervision was statutorily precluded once a finding of guilt is
entered, and had he communicated that to her, she would have
accepted the State’s plea offer and not gone to trial. Or, if she
proceeded to trial, she would have requested supervision before a
finding was entered.
¶ 34 Danielle also contends that her juvenile proceedings were
fundamentally unfair because the trial court also misapprehended the
plain meaning of the statute, i.e., that a continuance under supervision
is statutorily precluded once a finding of guilt is entered. Danielle
concedes that, generally, a trial court has no obligation to broach the
subject of a continuance under supervision after trial and before
finding a respondent guilty. However, in this case the trial court’s
subsequent actions demonstrated that it believed that supervision was
the proper disposition for Danielle. Therefore, the failure to broach
the subject of a continuance under supervision at the proper time was
a result of the court’s misunderstanding of the plain language of the
statute, which rendered the proceedings fundamentally unfair.
Danielle was prejudiced because, absent the trial court’s
misunderstanding of the law, Danielle’s opportunity to obtain a
continuance under supervision would not have been lost.
¶ 35 We agree with Danielle. In Veronica C. we held that the plain
language of the statute required that the subject of supervision be
broached, if at all, prior to the court entering a finding of guilt. In the
case at bar, however, both counsel and the court demonstrated a
misapprehension of the law when they failed to broach the subject of
a continuance under supervision prior to the entry of a finding of
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guilt. In fact, the record affirmatively demonstrates that both counsel
and the court believed a continuance under supervision could be
granted at the dispositional hearing, even though a finding of guilt
had already been entered. Moreover, the trial judge repeatedly held
that supervision was available to Danielle but for the State’s objection
and then granted Danielle a continuance under supervision over the
State’s Attorney’s objection, finding the State’s Attorney “approval
provision” unconstitutional. The record clearly demonstrates that both
counsel and the trial court were unaware that a continuance under
supervision was statutorily precluded once a finding of guilt was
entered. We find, therefore, under the circumstances of this case, the
failure of both counsel and the trial court to raise the option of
supervision at an earlier stage in the proceedings, before a finding of
guilt was entered, was error which affected Danielle’s substantial
rights. We also find that Danielle received ineffective assistance of
counsel, was prejudiced by her attorney’s deficient performance, and
that the trial court’s error affected the fairness of the proceedings
below and challenged the integrity of the judicial process. Danielle
was prejudiced by these errors because they denied her the
opportunity to obtain a continuance under supervision.
¶ 36 In Veronica C., Veronica never argued ineffective assistance of
counsel, plain error, or that “the trial court’s failure to raise the option
of supervision at an earlier stage in the proceedings affected the
fairness of proceedings below and challenged the integrity of the
judicial process.” See In re Veronica C., 239 Ill. 2d at 147. As a
result, we did not have the opportunity to consider what remedy
should be afforded to someone who had established such claims.
Here, Danielle suggests that a proper equitable remedy for her
counsel’s and the trial court’s errors would be that this court review
the trial court’s finding that the State’s Attorney “approval provision”
in section 5-615 is unconstitutional. In the alternative, she asks that
we remand this matter to the trial court for a new first phase hearing.
¶ 37 We decline the invitation to consider the constitutionality of the
section 5-615(1). Danielle, like Veronica in Veronica C., is precluded
by statute from obtaining a continuance under supervision because the
subject of supervision was not raised prior to a finding of guilt being
entered, not because of the State’s Attorney “approval provision”
within section 5-615. Thus, the constitutionality of the State’s
Attorney approval provision in the statute is not properly before this
court.
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¶ 38 We agree, however, that it would be appropriate to remand this
matter for a new first-phase hearing. By doing so, Danielle could be
properly advised by counsel that if she proceeds to trial and is
unsuccessful, the grant of a continuance under supervision would be
subject to the State’s Attorney’s approval and might be lost. In this
way, Danielle would be able to make an informed and knowing
decision about whether to accept the State’s plea offer, should that
offer be reinstated.
¶ 39 In the event that, upon remand, the State does not extend an offer
of supervision and the matter should proceed to trial, Danielle would
have the opportunity to request a continuance under supervision from
the court prior to a finding being entered. This would not be a futile
exercise because, as the State made clear at oral argument, there is no
evidence that the State would have objected to a supervision order
being entered at that juncture because Danielle never requested
supervision prior to the court entering a finding of guilt. Of course, in
the event that the State objects to the court granting Danielle
supervision, Danielle could, at that time, properly raise a challenge to
the constitutionality of the statute.
¶ 40 For the reasons stated above, we vacate the circuit court’s finding
that section 5-615 is unconstitutional. We reverse the order of
supervision and remand to the circuit court for further proceedings
consistent with this opinion.
¶ 41 Circuit court judgment vacated in part and reversed in part.
¶ 42 Cause remanded.
¶ 43 JUSTICE KARMEIER, concurring in part and dissenting in part:
¶ 44 As the majority acknowledges, the trial court lacked the statutory
authority to grant a continuance under supervision once it found
Danielle guilty. Consequently, its order granting Danielle supervision
is void and must be reversed. Further, as the majority finds, it was
improper for the trial court to consider the constitutionality of the
“approval provision” within section 5-615(1). Thus, the circuit
court’s finding of unconstitutionality must also be vacated. However,
for the reasons hereafter set forth, I disagree with the discussion that
underpins the majority’s remand of this case for “a new first phase
hearing.”
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¶ 45 Danielle’s claims of ineffective assistance of counsel and plain
error are meritless, Neither the facts, nor the law, nor considerations
of equity justify the remand that is the culmination of the majority’s
errant analysis. As the State suggests, this court should remand the
matter to the circuit court with directions that the circuit court enter
a disposition of probation.
¶ 46 The majority agrees with the arguments advanced by Danielle in
her cross-appeal. See supra ¶¶ 33-34. Even a cursory examination of
Danielle’s brief exposes inherent inconsistencies in Danielle’s
position. Danielle’s issue statement reads in part: “Danielle received
ineffective assistance of counsel and/or she was denied due process
where neither her attorney nor the trial court applied or understood
the plain wording of the juvenile supervision statute such that each
failed to broach the matter of supervision at the appropriate time.”
(Emphasis added.) A good part of the rest of the brief is devoted to
showing us how “clairvoyan[ce]” would have been required to
anticipate “the previously unarticulated interpretation of the
supervision statute that this Court’s decision in Veronica C.
represents” and that neither trial counsel nor the circuit court could
have seen it coming. So which is it? Were both so deficient in their
understanding or remiss in their edification that they could not grasp
the “plain wording” of the statute? Or were they both the innocent,
but otherwise competent, victims of what Danielle would characterize
as this court’s blindsiding decision in Veronica C.?
¶ 47 If the latter, then Danielle cannot establish the first prong of
Strickland, i.e., that counsel’s performance was deficient. As we
noted in People v. English, 2013 IL 112890, ¶ 34, counsel is not
deficient for failing to anticipate legal developments that could not
have been foreseen.
¶ 48 Moreover, it is not clear that the trial court was confused. The
court’s statements during the proceedings leading up to its ruling on
the statute’s constitutionality demonstrate that it appreciated the
difference between “supervision” and “probation.” Therefore, its
consistent references, immediately after trial, to “probation” as the
most lenient disposition available in Danielle’s case suggest that the
court, at that point, understood the time for supervision had passed.
After the trial judge advised Danielle he did not believe her version
of events, and pronounced her guilty of misdemeanor battery, the
court stated: “[Y]ou’ve been convicted of a misdemeanor battery
today. It ranges from a penalty of probation to 364 days in jail.”
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(Emphasis added.) Shortly thereafter, in the course of answering
questions posed by Danielle’s grandmother, the court again stated:
“And, probation—I’ll be honest with you, grandma, probation’s our
first option.” (Emphasis added.)
¶ 49 When the case was again before the court, on April 8, 2010, the
court first ascertained that “Mr. Blake,” apparently the author of the
social history report, believed a disposition of “one year of probation”
was appropriate. Then, the court inquired of the assistant State’s
Attorney present, and was advised that the State “agree[d] with the
Probation Officer’s recommendation of one year probation.” It was
not until defense counsel mentioned “some sort of supervision”6 that
the court itself first used that term, and it then became immediately
apparent that the court had previously considered the constitutional
implications of the provision requiring State consent, and that the
court anticipated it might “make an interesting ruling”—though no
one had raised the constitutionality of the statute to that point—and
render a judgment that might take this case “straight up to the
Supreme Court.” However, even after the court expressed interest in
being the vehicle for a ruling that would send the case on its way to
this court, the circuit court still appeared to recognize that the time for
supervision, in a juvenile court context, had passed, as evinced by the
following statement: “In the adult system, even after trial a judge can
enter an order of supervision.” (Emphasis added.) The clear
implication is the court’s recognition that, in the juvenile court
system, the trial and subsequent finding of guilt served as a
procedural line of demarcation, beyond which supervision was no
longer an option.
¶ 50 However, even assuming, arguendo, that both defense counsel
and the court were oblivious to the applicable procedural sequence for
consideration of supervision, neither this record nor case law supports
a finding that Danielle suffered prejudice or that the proceedings were
rendered fundamentally unfair.
¶ 51 With respect to the circuit court’s role in the matter, the majority
opinion engages in no meaningful analysis, and discusses no pertinent
authority, before concluding that the circuit judge’s supposed
6
Unlike the majority, I see no evidence of record to indicate that
counsel’s ambiguous reference to “some sort of supervision” was, at that
time, a specific reference to a continuance under supervision pursuant to
section 5-615.
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ignorance of the procedural sequence for considering supervision
qualifies as the rare instance of second-prong plain error. It just is.
The majority does not even acknowledge, much less address, our
observation in Veronica C. that we were aware of no structural
mandate—be it a “statutory provision or rule”—that “requires the
court to raise the prospect of supervision sua sponte.” See Veronica
C., 239 Ill. 2d at 146. In a brief, we would not have found it necessary
to even consider unsupported contentions such as those that comprise
the majority’s analysis; they would have failed to comply with Rule
341. Here, they constitute the opinion of the court.
¶ 52 The linchpin of this court’s ineffective assistance and plain-error
“analyses” is the transparent fiction that the State might not have
objected to supervision had the matter been timely broached by either
defense counsel or the court. No experienced criminal practitioner,
confronted with the facts of record, would consider, as realistic, this
court’s insistence that the State might, after Danielle’s refusal to
accept responsibility for her actions, and her rejection of a favorable
plea offer, thereafter have countenanced the same favorable
disposition. Beyond that, taking into account the aforementioned
procedural history of the case, who could believe, in light of the
State’s persistent posttrial protestations that supervision would be
inappropriate—based on cited factors which were all known prior to
trial—that the State would have taken a different position
immediately after the presentation of evidence at trial and before a
finding of delinquency? Yet, this is—and must be—the centerpiece
of this court’s analysis if it is to find established either the prejudice
prong of Strickland or second-prong plain error.
¶ 53 Given this statute’s uncommon dispositional framework, the State
had the statutory authority to take supervision off the table and,
though defense counsel and the court could broach the matter, they
could do nothing in that regard without the State’s consent, which
would obviously have been withheld here. The points identified by
the State in oral and written argument as the bases for its decision
were, as mentioned, all pretrial factors, as the following excerpt from
the State’s posttrial pleading makes clear:
“Although the People need not detail their rationale for
objecting to the imposition of a term of supervision, it should be
noted that there are several factors that support the People’s
ultimate position. First, as alluded to above, this is a case where
the minor refused to accept responsibility for her actions. It is
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well established that individuals who admit they are guilty and
accept responsibility for their actions are generally entitled to a
benefit at sentencing. The minor, in choosing to refuse to accept
responsibility for her actions, was not entitled to the benefit of a
term of supervision.
Furthermore, the People also considered that the minor could
very well have been charged with a felony for her actions of
beating the victim on school grounds. By charging the minor with
the misdemeanor offense of battery, the People had already given
the minor a substantial benefit.
Finally, the People considered the facts, circumstances and
nature of the crime when they objected to a term of supervision.
This was not a property or possession crime. This is a crime
where the minor physically beat another teenage girl in broad
daylight on school grounds in front of a number of other students.
Considering the level of violence that is escalating in our school
system, a term of supervision for an individual who refuses to
accept responsibility for her actions is unwarranted and
irresponsible.”
¶ 54 On the basis of the record before us, we cannot realistically say
that the State, at the critical time, might have agreed to supervision.
This court, in People v. Rivera, 227 Ill. 2d 1, 26-27 (2007), was able
to examine the record on appeal and ascertain that a multifactor
Apprendi violation was harmless beyond a reasonable doubt. We
were able to say with certainty what 12 rational jurors would have
found. Similarly, looking at this record, there is no doubt what the
State’s position would have been, with respect to supervision, at any
point after Danielle rejected the State’s favorable plea offer.
¶ 55 With respect to her rejection of that plea offer, Danielle claims
she was prejudiced as a result of her attorney’s supposed deficiency
because he failed to inform her that she risked losing the opportunity
to obtain a continuance under supervision by rejecting the State’s
Attorney’s plea offer. In addition, she opines, because of her
attorney’s misapprehension of the law, he failed to request
supervision after proceeding to trial, but before a finding of guilt was
entered. As a result, Danielle concludes, she lost the opportunity to
obtain a continuance under supervision. Danielle asserts that, had her
attorney known that a continuance under supervision was statutorily
precluded once a finding of guilt is entered, and had he
communicated that to her, she would have accepted the State’s plea
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offer and not gone to trial. Or, if she proceeded to trial, she would
have requested supervision before a finding was entered.
¶ 56 As previously indicated, it would not have mattered had counsel
requested supervision at the critical time. As for Danielle’s claim that
counsel failed to inform her of the risk inherent in rejecting the
State’s plea offer, and her assertion that, had he communicated the
risk to her, she would have accepted the offer, I would note there is
not one shred of evidence in this record to support either allegation.
Yet, this court takes that bare claim as an established fact (see supra
¶¶ 33, 38), and uses it as part of the justification for its remand “for
a new first-phase hearing” (supra ¶ 38). This court’s assumptions are
unwarranted. There is no reason that Danielle should be afforded the
opportunity to start from scratch, or that her adjudicatory hearing,
which was apparently devoid of error, should be simply nullified.
¶ 57 At that hearing, the victim testified that she was alone when she
and a girl in Danielle’s group “had words.” That girl hit the victim in
the face. The victim stated that a nearby security guard stepped in to
separate the girls—a fact corroborated by Ivan Navarro, the security
guard. While the guard was in between the two girls, Danielle
interjected herself into the situation. The victim testified that Danielle
punched her three or four times before Danielle was pulled away by
another security guard. Even then, according to the victim, Danielle
“got loose and then the other security guard had to tackle her.”
¶ 58 Ivan Navarro testified that the girl in Danielle’s group swung at
the victim first, and he stepped in to separate them. He then saw
Danielle throw punches at the victim. He did not see the victim hit
Danielle or provoke her.
¶ 59 Danielle testified in her own behalf, claiming self-defense.
¶ 60 The trial court rejected that claim, noting that Danielle came
“from being three people back” to the forefront of the altercation, at
which time she punched the victim. The court considered the security
guard a “crucial witness,” and observed that he corroborated critical
aspects of the victim’s testimony. The court concluded: “I do not buy
into the affirmative defense in this case of self-defense.” The trial
judge stated he did not believe Danielle’s story—the judge thought
she lied.
¶ 61 I see nothing in this scenario, or this record, that would warrant
the subversion of our jurisprudence in order to accommodate
Danielle; however, the majority has gone to great lengths to do so.
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¶ 62 What the majority is really doing—with no meaningful analysis
or citation to pertinent authority—is saying that Danielle was
prejudiced solely by loss of standing to raise an issue concerning the
statute’s constitutionality, because it is otherwise clear the State
would not have consented to a continuance under supervision even if
Danielle’s counsel had timely broached that subject. The court is
saying that counsel’s supposed incompetence resulted in forfeiture of
an opportunity to argue a constitutional issue before this
court—counsel has already done so successfully in the circuit
court—that may or may not have merit. That is the prejudice. That is
the holding that parties may cite henceforth.
¶ 63 I cannot subscribe to that portion of the majority opinion.
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