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

Illinois Official Reports
Supreme Court
In re Derrico G., 2014 IL 114463Caption in Supreme In re DERRICO G., a Minor (The People of the State of Illinois,
Court: Appellant, v. Derrico G., Appellee).
Docket No. 114463
Filed August 4, 2014
Held Before guilt is found in a juvenile proceeding, it is not unconstitutional
(Note: This syllabus for statute to allow the State’s Attorney to preclude a continuance
constitutes no part of the under supervision, and a circuit court erred in ruling otherwise; where
opinion of the court but a plea agreement called for probation while other charges were
has been prepared by the dropped, the court should not have unilaterally modified it sua sponte
Reporter of Decisions by entering a supervision order, and, on remand, should reconsider the
for the convenience of agreement.
the reader.)
Decision Under Appeal from the Circuit Court of Cook County, the Hon. Terrence V.
Review Sharkey, Judge, presiding.
Judgment Circuit court judgment reversed in part and vacated in part.
Cause remanded with directions.
Counsel on Lisa Madigan, Attorney General, of Springfield, and Anita M.
Appeal Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, Michelle
Katz, Annette Collins and Veronica Calderon Malavia, Assistant
State’s Attorneys, of counsel), for the People.
Abishi C. Cunningham, Jr., Cook County Public Defender, of Chicago
(James S. Jacobs, Assistant Public Defender, of counsel), for appellee.
Justices 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.
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(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. 1, 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;
(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
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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 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, [Y]our 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.”
¶ 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.
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¶ 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.
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.
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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 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 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
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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 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:
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“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 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.”
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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¶ 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 “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 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
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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?
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’ postbriefing 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
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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 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 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
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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—postdated 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 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
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postfinding 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 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
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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
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 prefinding 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 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- 14 -
(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. 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
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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 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 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
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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 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,
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¶ 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 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
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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.
¶ 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 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
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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 prefinding 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 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
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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, establish that he
is similarly situated in all relevant respects to those with whom he would make comparison.
¶ 92 As the 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 Unified 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
Unified 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 Unified 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 Unified 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 Unified 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 amendments, the court can
now order supervision after a finding of guilt, in appropriate circumstances, without the
consent of the State’s Attorney.
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¶ 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.
¶ 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,
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unencumbered by agreements relating to his disposition, and who then stands before a court
seeking the application of the supervision provisions of the Unified 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 Unified 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 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 Unified 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
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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 (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 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.
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¶ 109 Circuit court reversed in part and vacated in part. Cause 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 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.
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¶ 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 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 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
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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. 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
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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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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