In re Justin L.V. ( 2007 )

NO. 4-06-0239 Filed 12/28/07
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
In re: JUSTIN L.V., a MINOR, ) Appeal from
THE PEOPLE OF THE STATE OF ILLINOIS, ) Circuit Court of
Petitioner-Appellee, ) Livingston County
v. ) No. 05JD66
JUSTIN L.V., )
Respondent-Appellant. ) Honorable
) Jennifer Bauknecht,
) Judge Presiding.
JUSTICE MYERSCOUGH delivered the opinion of the court:
Respondent, Justin L.V., a minor, admitted he engaged
in certain criminal conduct. As a result, the trial court adju-
dicated him a delinquent minor and ordered him committed to the
Illinois Department of Corrections, Juvenile Division (JDOC).
Within 60 days of entering its order of commitment, the court
reviewed respondent's progress and determined that respondent
should remain committed. Respondent appeals. We dismiss in part
and affirm in part.
I. BACKGROUND
On August 18, 2005, the State filed a petition for
adjudication of wardship, requesting that respondent, age 16, be
adjudicated a delinquent minor pursuant to section 5-105(3) of
the Juvenile Court Act of 1987 (Juvenile Act) (705 ILCS 405/5-
105(3) (West 2004)). The State alleged that between August 13,
2005, and August 15, 2005, respondent committed the offenses of
unlawful possession of a stolen vehicle in two counts (625 ILCS
5/4-103(a)(1) (West 2004)) and the offense of criminal damage to
property (720 ILCS 5/21-1(1)(a) (West 2004)).
On August 24, 2005, the trial court entered an order
for respondent's detention in the McLean County Juvenile Deten-
tion Center for four days until respondent's seventeenth birth-
day, at which time he was transferred to the Livingston County
jail until his arraignment on September 13, 2005. At arraign-
ment, the State made an oral motion to amend the petition to add
seven counts, which alleged respondent committed seven additional
offenses between June 2005 and August 2005. Specifically, the
State alleged respondent committed three counts of criminal tres-
pass to a vehicle (720 ILCS 5/21-2 (West 2004)), two additional
counts of criminal damage to property (720 ILCS 5/21-1(1)(a)
(West 2004)), one count of burglary (720 ILCS 5/19-1(a) (West
2004)), and one count of unlawful possession of cannabis (720
ILCS 550/4(a) (West 2004)). The trial court allowed the State's
motion.
Respondent admitted each allegation except one count of
criminal damage to property to which he pleaded not guilty. The
trial court accepted the factual basis for the remaining counts,
- 2 -
found respondent's admissions were made knowingly and
voluntarily, and adjudicated respondent a delinquent minor. The
court entered a home-confinement order pending sentencing. At an
October 11, 2005, status hearing, respondent admitted the remain-
ing count of criminal damage to property. After considering the
factual basis of that charge, the trial court accepted respon-
dent's admission.
On October 25, 2005, the trial court held a sentencing
hearing. After hearing recommendations from the State and from
respondent, the court stated that it was sentencing respondent to
60 days in JDOC. The court further stated that in 60 days, it
would consider vacating the JDOC commitment and placing respon-
dent "on some kind of probation." However, respondent's counsel
advised the court that it was not authorized to sentence respon-
dent to JDOC for a definite period of time:
MR. MASON [(respondent's counsel)]:
Actually I don't think you can sentence him
to a specific time. You sentence him to DOC
to return on December 20.
THE COURT: All right.
MR. MASON: At which time you can vacate.
THE COURT: Vacate that order or I can
send him back depending on how things are
- 3 -
going.
* * *
THE COURT: Since I'm setting this for
review, should I advise him of his appeal
rights now? I'm not sure how that works.
MR. MASON: Yeah[, p]robably[,] because
you wouldn't resentence him. You would ei-
ther vacate the sentence or return him."
The court also explained its intention to respondent:
"THE COURT: I will tell you this. I
will bring it back in 60 days. I'm not going
to argue with you about it. [Sixty] days is
enough time for you to start getting help on
your substance abuse, to look into your edu-
cation and think about what your actions have
been. And if what you are telling me is
true, you can walk out of that prison in 60
days on that date; and you can put in place
things that are going to keep you on the
right track.
* * *
All right. So that's going to be the
sentence."
- 4 -
The written order (1) provided that respondent's com-
mitment was necessary to protect the public, (2) directed the
sheriff to transport respondent to the appropriate reception
center, and (3) required respondent to return to court on Decem-
ber 20, 2005, "for further court proceedings." The trial court
also advised respondent of his right to appeal and admonished him
pursuant to Supreme Court Rule 605. 210 Ill. 2d R. 605. Neither
the order of commitment entered by the court nor the docket entry
entered following the hearing specified a term of commitment.
Between October 26, 2005, and November 10, 2005, re-
spondent was housed at the Illinois Youth Center in St. Charles.
He was transferred to the Illinois Youth Center in Harrisburg on
November 10, 2005, to begin individualized treatment. According
to the warden and the counselor at St. Charles, in letters pre-
sented to the trial court at the December 20, 2005, hearing,
respondent was "cooperative," "exhibit[ed] a positive attitude,"
and was "a positive leader." However, after arriving at Harris-
burg, respondent's behavior was less positive. On November 11,
2005, respondent received a "major disciplinary report" for fil-
ing a false claim that his roommate had sexually assaulted him.
As punishment, respondent received seven days in confinement. In
a December 5, 2005, report, the warden and the counselor at Har-
risburg indicated that respondent's "weekly level performance has
- 5 -
been level B and C," with level A being the highest. In addition
to these reports, the State reported to the court at the December
20, 2005, hearing that respondent had received another disciplin-
ary ticket on December 12, 2005, for allegedly stealing three
books from a teacher.
At the December hearing, respondent's counsel argued
that the October commitment to JDOC be vacated, stating:
"MR. MASON: *** [W]e would recommend
that [Justin] be released on probation. ***
*** [W]e would request that the [c]ourt
vacate the commitment to [JDOC] and release
him to his parents on a term of probation
with a term of home confinement if the
[c]ourt believes that would be reasonable to
start things off with."
However, the State argued for respondent’s continued
incarceration, emphasizing respondent's negative performance:
"MR SPRAY [(Court Services)]: [The
counselor] was I guess quite amazed that
someone in Justin’s position would have two
[disciplinary tickets] knowing that he’s
going before a judge. ***
He was pretty surprised that he had that
- 6 -
type of incident reports written up on him
knowing full well the [c]ourt was going to
take that into consideration in whether or
not you were to vacate his commitment order
or send him back to [JDOC].
* * *
MR. SANBORN [(Assistant State’s
Attorney)]: *** [I]t’s the State’s
recommendation that [Justin] stay in [JDOC].
If we can’t trust him not to misbehave when
it counts, then society is not protected if
[the court] would allow him to go home
today."
The trial court expressed its dissatisfaction with
respondent's performance in JDOC and indicated that it would not
be vacating the October sentencing order:
"THE COURT: All right. Based upon the
reports from the Illinois [JDOC], taking into
consideration the nature of the original
offenses, and coupled with the fact, Justin,
that you've not been able to maintain
positive conduct even for a short period of
time, I don't think it would be appropriate
- 7 -
to vacate the order today.
I don't understand what you were
thinking. I don't understand what you were
thinking with this. It's almost like you
were asking me not to vacate the order.
That's just completely unacceptable conduct
to accuse somebody of something like that.
***
So I don't think I'm going to vacate
that order today. ***
* * *
THE COURT: My question, Mr. Mason, is do
I set this for another status? My
understanding is that if I commit him to
[JDOC] they then release him when they think
he is ready to be released.
MR. MASON: That is correct.
THE COURT: And I do nothing further at
this point or I set it for a status?
MR. MASON: No. You don’t need to do
anything. If your decision is to commit him
back to [JDOC], that’s it. You don’t need to
have any further court reviews.
- 8 -
THE COURT: That is my decision."
The docket entry following the December hearing
indicates that the trial court "decline[d] to vacate" the October
25, 2005, sentencing order, and respondent was returned to JDOC
custody.
On January 19, 2006, respondent filed a motion to
reconsider sentence, alleging (1) the sentence was against the
manifest weight of the evidence, (2) the sentence was not in
respondent's best interest, and (3) the social-investigation
report indicated that respondent would benefit from intensive
outpatient substance-abuse treatment. On March 14, 2006, the
trial court denied respondent's motion, indicating, "I have
listened carefully to Mr. Mason. I have reviewed his motion, and
I have reviewed the case file. I have not heard anything today
that would suggest that the [c]ourt's sentence on December 20[ ]
was the wrong sentence." This appeal followed.
II. ANALYSIS
On appeal, respondent claims the trial court was not
authorized under the Juvenile Act to impose a sentence of 60 days
in JDOC for "evaluation." He further claims the indeterminate
term in JDOC imposed following the initial 60 days violated
double jeopardy. In addition, respondent argues that the case
must be remanded because respondent's trial counsel failed to
- 9 -
file a certificate as required by Supreme Court Rule 604(d) (210
Ill. 2d R. 604(d)) and that respondent is entitled to credit for
time served. We dismiss in part for lack of jurisdiction and
affirm in part.
A. This Court Has Jurisdiction Over Respondent’s Appeal
From the December 20, 2005, Order
Initially, the State claims respondent's appeal should
be dismissed for lack of appellate jurisdiction because the
October 25, 2005, order committing respondent to JDOC was the
only final order for purposes of appeal in this case. We
disagree.
1. Respondent’s Appeal Arises From His
December 20, 2005, Hearing
Except where an Illinois Supreme Court rule provides
for an interlocutory appeal, this court has jurisdiction to
review only final judgments. In re Sean A., 349 Ill. App. 3d
964, 968, 812 N.E.2d 669, 672 (2004). Supreme Court Rule 660(a)
provides that "[a]ppeals from final judgments in delinquent minor
proceedings, except as otherwise specifically provided, shall be
governed by the rules applicable to criminal cases." 210 Ill.
2d, R. 660(a). Generally, the dispositional order in a juvenile
delinquency proceeding will be considered a final order. In re
J.N., 91 Ill. 2d 122, 127, 435 N.E.2d 473, 475 (1982). We do
agree with the State that the October 25, 2005, dispositional
- 10 -
order was a final order for purposes of appeal. We also agree
that respondent failed to timely appeal that order.
The State cites In re J.T., 221 Ill. 2d 338, 345-46,
851 N.E.2d 1, 5-6 (2006), for the proposition that failure to
file timely notice of appeal from a sentencing order in a
juvenile delinquency proceeding divests the appellate court of
jurisdiction to consider any issue arising from that order. In
that case, the respondent pleaded guilty to criminal damage to
property and was sentenced to probation. He filed no appeal from
that sentence. After the respondent was found to have violated
his probation, the trial court ordered the respondent committed
to JDOC. The respondent appealed that decision, but included in
his appeal, inter alia, an argument that his case be remanded
because the trial court failed to properly advise the respondent
of his appeal rights when the respondent originally pleaded
guilty. The supreme court held that the appellate court lacked
jurisdiction to consider that claim, because the respondent
failed to appeal the improper admonishment within the specified
period for appeal. However, in J.T., the respondent was
attempting to circumvent his earlier inaction by appealing the
original sentencing order at a later date. In this case, unlike
J.T., respondent’s appeal arises not from his sentencing order,
entered October 25, 2005, but from the trial court's December 20,
- 11 -
2005, order, and his appeal of that order is timely. The
jurisdiction of this court, therefore, is not precluded by J.T.,
because this appeal is based on the December order.
2. Respondent’s Counsel Made a Proper Oral Motion
To Vacate JDOC’s Guardianship of Respondent at the
December 2005 Hearing
Section 5-750(3) of the Juvenile Act allows a court to
commit a minor to JDOC for "an indeterminate term." 705 ILCS
405/5-750(3) (West 2004). When doing so, the court "shall
appoint the Assistant Director of Corrections, Juvenile Division,
legal custodian of the minor." 705 ILCS 405/5-750(4) (West
2004). The Juvenile Act also provides for court review of a
delinquent minor in several ways:
"(1) The court may require any legal
custodian or guardian of the person appointed
under this Act to report periodically to the
court or may cite him or her into court and
require him or her, or his or her agency, to
make a full and accurate report of his or her
or its doings in behalf of the minor. The
legal custodian or guardian, within 10 days
after the citation, shall make the report,
either in writing verified by affidavit or
orally under oath in open court, or otherwise
- 12 -
as the court directs. Upon the hearing of the
report the court may remove the legal
custodian or guardian and appoint another in
his or her stead or restore the minor to the
custody of his or her parents or former
guardian or legal custodian.
(2) A guardian or legal custodian
appointed by the court under this Act shall
file updated case plans with the court every
6 months. Every agency which has guardianship
of a child shall file a supplemental petition
for court review, or review by an
administrative body appointed or approved by
the court and further order within 18 months
of the sentencing order and each 18 months
thereafter. The petition shall state facts
relative to the child's present condition of
physical, mental[,] and emotional health as
well as facts relative to his or her present
custodial or foster care. The petition shall
be set for hearing and the clerk shall mail
10 days notice of the hearing by certified
mail, return receipt requested, to the person
- 13 -
or agency having the physical custody of the
child, the minor and other interested parties
unless a written waiver of notice is filed
with the petition.
Rights of wards of the court under this
Act are enforceable against any public agency
by complaints for relief by mandamus filed in
any proceedings brought under this Act.
(3) The minor or any person interested
in the minor may apply to the court for a
change in custody of the minor and the
appointment of a new custodian or guardian of
the person or for the restoration of the
minor to the custody of his or her parents or
former guardian or custodian. In the event
that the minor has attained 18 years of age
and the guardian or custodian petitions the
court for an order terminating his or her
guardianship or custody, guardianship or
legal custody shall terminate automatically
30 days after the receipt of the petition
unless the court orders otherwise. No legal
custodian or guardian of the person may be
- 14 -
removed without his or her consent until
given notice and an opportunity to be heard
by the court." 705 ILCS 405/5-745 (West
2004).
Section 5-745 appears in part seven of the Juvenile
Act, entitled, "Proceedings After Trial, Sentencing," just before
the above-referenced section 5-750, which defines commitment of a
juvenile to JDOC. Section 5-745's provisions permitting periodic
court reviews, updated case plans, and custodial changes were
clearly intended to apply to cases, such as the case at bar, in
which the minor has been adjudicated delinquent and committed to
JDOC.
In the case sub judice, respondent’s counsel did not
file a written motion to vacate JDOC’s guardianship of Justin.
Instead, the trial court, sua sponte, conducted a review hearing
as permitted by section 5-745(1) of the Juvenile Act to evaluate
respondent’s progress in JDOC. At that hearing, respondent’s
counsel addressed the court, stating, "[W]e would request that
the [c]ourt vacate the commitment to [JDOC] and release him to
his parents on a term of probation with a term of home
confinement if the [c]ourt believes that would be reasonable to
start things off with."
Respondent’s counsel’s request must be construed as a
- 15 -
motion to vacate the guardianship of JDOC. Despite the fact that
counsel failed to use the word "motion," he clearly requested
that the trial court vacate respondent's commitment and wardship.
Further, the State not only failed to object to the form of that
request, but the State presented arguments on the merits of these
issues as well, emphasizing reports from Justin’s counselors in
JDOC and arguing that respondent should "stay in JDOC."
Notably, section 5-745(3) contains no requirement as to
the form or substance of the application for a change in custody,
nor does the section indicate what standard the trial court
should apply in deciding whether to grant such an application.
When a court appoints JDOC the guardian of the minor following
delinquency proceedings, as the trial court did here, section 5-
745(3), therefore, contemplates that the minor or any interested
person may move the court to return guardianship to his parents
and, necessarily, vacate JDOC’s guardianship of the minor.
Moreover, a motion need not always be made in writing
to be effective. See, e.g., People v. Davis, 356 Ill. App. 3d
725, 731, 826 N.E.2d 994 (2005) (considering merits of appeal
from the defendant’s oral motion to reconsider sentence after
determination that State had waived objection to motion not being
in writing); People v. Enoch, 122 Ill. 2d 176, 188, 522 N.E.2d
1124, 1130-31 (1988) (finding that a motion for a new trial need
- 16 -
not be in writing where the State does not object to the oral
motion); People v. Thomas, 34 Ill. App. 3d 1002, 1006-07, 341
N.E.2d 178, 182 (1976) (finding that juvenile’s motion to
transfer trial to adult criminal court may be made orally).
Further, the court need not adhere to strict rules of procedure
in determining whether a motion has been made. See Thomas, 34
Ill. App. 3d at 1007, 341 N.E.2d at 182 (the defendant’s
conviction would not be reversed on the "purely formal basis"
that he failed to use the word "motion" in his application for
transfer to adult criminal court); Vogelsang v. Credit Life
Insurance Co., 119 Ill. App. 2d 67, 72-73, 255 N.E.2d 479, 482
(1970) (formal procedures for filing a written motion will be
waived where there is no objection and the court appears to have
considered the merits of the motion). Therefore, in People v.
Todd, 249 Ill. App. 3d 835, 840, 619 N.E.2d 1353, 1357 (1993),
the court held that where a defendant made any statement that
could be construed as a motion for a new trial, and the State
failed to object to the statement’s not being in writing, the
reviewing court should consider the issue preserved for appeal.
Similarly, in People v. Sanchez, 329 Ill. App. 3d 59, 66, 768
N.E.2d 99, 105 (2002), the court held that the defendant’s
statements at sentencing that his attorney had failed to
investigate his case should have been construed by the trial
- 17 -
court as a motion for new counsel.
At the December 20, 2005, hearing, the State failed to
object to the form of respondent’s motion, and therefore, the
State has forfeited any such objection. Additionally, in his
motion to reconsider sentence and vacate commitment to JDOC,
filed January 19, 2006, respondent indicated that, "[o]n December
20, 2005, the minor moved the [c]ourt to vacate the commitment to
[JDOC]. The [c]ourt denied said motion and continued the
commitment to [JDOC]." The State similarly voiced no objection
to respondent's characterization of the December 20, 2005,
proceedings. Finally, the trial court clearly considered the
issue on its merits. At the December hearing, the court
concluded, "I don’t think it would be appropriate to vacate the
order today," and the record of that hearing indicates that "the
court decline[d] to vacate the order."
Although we have concluded that the respondent minor
did move to vacate JDOC guardianship, we encourage counsel for
respondent minors in situations such as this to avoid any doubt
as to the procedural adequacy of their request for a change of
custody. They should file a written motion expressly invoking
section 5-745(3), when the change of custody is sought, either at
the time of sentencing or after the sentencing to JDOC.
3. The Court’s Denial of the Motion To Vacate Guardianship
- 18 -
Is a Final Order For Purposes of Appeal
The State also argues that the denial of the motion to
vacate JDOC's guardianship of respondent is not a final order for
purposes of appeal, relying on In re Brandon S., 331 Ill. App. 3d
757, 760, 771 N.E.2d 1117, 1120 (2002), a child-dependency case.
We disagree, and we decline to follow Brandon S. here.
In Brandon S., the respondents appealed the denial of
their motion for return home of their minor children or, in the
alternative, unsupervised visitation with the children. Brandon
S., 331 Ill. App. 3d at 759, 771 N.E.2d at 1119. While
acknowledging that the trial court retained jurisdiction to
modify its disposition vacate its previous order, the First
District held that the trial court's denial of such a
modification "did not change the status quo" and was therefore
not appealable. Brandon S., 331 Ill. App. 3d at 761, 771 N.E.2d
at 1120. The court noted, however, that the respondents' motion,
"in essence, [']jumped the gun['] on the next scheduled
permanency hearing and the order resulting therefrom could be
analogized to an order resulting from a permanency hearing,"
which is not appealable. Brandon S., 331 Ill. App. 3d at 761,
771 N.E.2d at 1121.
Two years after Brandon S., however, in In re Tr. O.,
362 Ill. App. 3d 860, 865, 840 N.E.2d 1263-1267 (2005), the
- 19 -
Second District held it had jurisdiction to review the trial
court’s denial of a motion to vacate private guardianship.
There, after finding that Tr. O. was neglected or abused, the
trial court awarded custody of the child to foster parents and
entered an order closing Tr. O.’s case. Tr. O., 362 Ill. App. 3d
at 862, 840 N.E.2d at 1265. Two years later, after the time for
appealing the custody order had run, the child’s biological
mother filed a supplemental petition to reinstate wardship and a
motion to vacate private guardianship. Tr. O., 362 Ill. App. 3d
at 863, 840 N.E.2d at 1266. The trial court dismissed the
petition for lack of subject-matter jurisdiction. Tr. O., 362
Ill. App. 3d 862, 840 N.E.2d at 1266. On appeal, the court
rejected the argument that an order denying a motion to vacate
private guardianship was not a final order. The court relied on
In re Faith B., 216 Ill. 2d 1, 832 N.E.2d 152 (2005), in which
the supreme court held that an order establishing a private
guardianship was final for purposes of appeal, even though
permanency orders generally are not. The Tr. O. court held that
the fact that the dismissal of the petition to vacate merely
maintained the status quo was "immaterial" for the purpose of the
court’s jurisdiction on appeal. Tr. O., 362 Ill. App. 3d at 864,
840 N.E.2d at 1266.
The Tr. O. court enumerated four factors that the
- 20 -
supreme court had considered relevant in Faith B.: (1) the trial
court believed it was entering a final order; (2) the trial court
declined to set any further hearings; (3) the trial court had
determined that the disposition was the only acceptable
arrangement; and (4) the guardianship represented the status quo
at the time. Tr. O., 362 Ill. App. 3d at 864-65, 840 N.E.2d at
1266.
The instant case is more analogous to Tr. O. and Faith
B. than Brandon S. The factors relied on by the court in Tr. O.
apply with equal force in our case. First, the trial court
clearly believed it was entering a final order at the December
review hearing, as evidenced by this exchange between the court
and respondent’s counsel:
"THE COURT: My question, Mr. Mason, is
do I set this for another status? My
understanding is that if I commit him to
[JDOC] they then release him when they think
he is ready to be released.
MR. MASON: That is correct.
THE COURT: And I do nothing further at
this point or I set it for a status?
MR. MASON: No. You don’t need to do
anything. If your decision is to commit him
- 21 -
back to [JDOC], that’s it. You don’t need to
have any further court reviews.
THE COURT: That is my decision."
Second, the trial court declined to set any further
hearings for review. Unlike the order at issue in Brandon S.,
the court's order here was not merely an intermediate step along
a continuing path; respondent here is not "jumping the gun" on
some later scheduled chance for review in the court. Instead, as
the court made clear, the December 20, 2005, order meant that
respondent could be released from JDOC only at such time as JDOC
determined, and the court had nothing more to say on the matter.
Third, the trial court clearly felt that declining to
vacate its prior order represented the only acceptable
disposition, stating:
"THE COURT: *** Based upon the reports
from the Illinois [JDOC], taking into
consideration the nature of the original
offenses, and coupled with the fact, Justin,
that you’ve not been able to maintain
positive conduct even for a short period of
time, I don’t think it would be appropriate
to vacate the order today.
I don’t understand what you were
- 22 -
thinking. I don’t understand what you were
thinking with this. It’s almost like you
were asking me not to vacate the order."
Fourth, as in Tr. O., the trial court’s denial of the
motion to vacate guardianship represented maintaining the status
quo at the time. At his October sentencing, respondent was
committed to JDOC for an indeterminate term. When his motion to
vacate JDOC’s guardianship was denied at the December review
hearing, the court’s October order was left in place, and
respondent returned to JDOC.
A trial court's ruling upon a request for a change of
custody may clarify the situation by expressly stating, on the
record, the court's intent that its order is final and by
immediately advising the respondent minor of the minor's right to
appeal the ruling. Therefore, the court's December 2005 order
denying the motion to vacate the commitment to JDOC was a final
order, and this court has jurisdiction to consider the appeal.
However, because respondent did not timely appeal the October 25,
2005, sentencing order, this court lacks jurisdiction to consider
"any issues arising from either his guilty plea or his sentence."
J.T., 221 Ill. 2d at 346-47, 851 N.E.2d at 6. We therefore
confine our review to those issues properly arising from the
December 20, 2005, order denying respondent’s motion to vacate
- 23 -
JDOC’s guardianship of respondent.
B. Respondent's Sentence is Authorized by the
Juvenile Courts Act
Respondent claims that the trial court’s December 20,
2005, order violated the prohibition against double jeopardy by
resentencing respondent for the same acts for which respondent
was sentenced in October. As noted above, this court lacks
jurisdiction to consider issues arising from the October order.
However, to fully address respondent’s double-jeopardy claim, we
must briefly address respondent's additional claim that the trial
court’s October sentencing order was not authorized by the
Juvenile Act. We disagree with both of respondent’s contentions.
Respondent argues that the trial court's October 25,
2005, order sentenced respondent to a 60-day period of
"evaluation," a sentence not authorized by the Juvenile Act.
Respondent points out that the Juvenile Act strictly limits the
options available to the court in sentencing a minor who is over
the age of 13 and adjudged delinquent. Section 5-710 of the
Juvenile Act enumerates these options, which include probation,
conditional discharge, substance-abuse assessment and treatment,
detention for a period not to exceed 30 days, and commitment to
JDOC. 705 ILCS 405/5-710(1) (West 2004). Section 5-750, however,
provides that "the commitment of a delinquent to the [JDOC] shall
- 24 -
be for an indeterminate term," except where the minor is adjudged
delinquent for the offense of first degree murder. 705 ILCS
405/5-750(3) (West 2004).
Respondent relies on the trial court's statements, made
at the October hearing, that it was "sentencing [respondent] to
60 days," to argue that the sentence imposed by the court did not
comply with section 5-750's condition that any commitment to JDOC
be for an indeterminate term. However, in the remainder of that
hearing, respondent's counsel informed the court that the court
could sentence respondent only for an indeterminate term. As
previously discussed, the court then corrected its previous
statements and indicated that it was sentencing respondent for an
indeterminate term, to be returned to court on December 20, 2005.
This intent is reflected in the written orders following the
hearing. Neither the written entry following the October hearing
nor the court's written order of commitment mentions a 60-day
"sentence." Where the court's oral and written orders are
arguably inconsistent, and the written order is consistent with
the court's intent, the written order will be enforced. People
v. Smith, 242 Ill. App. 3d 399, 402, 609 N.E.2d 1004, 1006
(1993). Therefore, the court clearly sentenced respondent for an
indeterminate term in compliance with the Juvenile Act, not for a
60-day "evaluation" as respondent claims.
- 25 -
Clearly, then, respondent's return to court in December
was not, as respondent contends, the end of his sentence, but
instead respondent was returned to court pursuant to the court's
reviewing authority under the Juvenile Act. When a trial court
commits a minor to JDOC, the sentencing provisions of the
Juvenile Act state that the court "shall appoint the Assistant
Director of Corrections, Juvenile Division, legal custodian of
the minor." 705 ILCS 405/5-750(4) (West 2004). The preceding
section of the Juvenile Act, section 5-745, entitled "Court
Review," which also appears in the sentencing provisions, allows
the trial court to require "any legal custodian or guardian of
the [minor] appointed under this Act," or the custodian's agency,
to appear before the court and report, "as the court directs."
705 ILCS 405/5-745(1) (West 2004). The provision also indicates
that, at such a hearing, "the court may remove the legal
custodian or guardian and appoint another in his or her stead or
restore the minor to the custody of his or her parents or former
guardian or legal custodian." 705 ILCS 405/5-745(1) (West 2004).
This section, along with section 5-745’s additional provisions
for court review, updated case plans, and changes in custody,
establish a wide variety of mechanisms by which the trial court
may continue to exercise authority over a delinquent minor, in
JDOC and otherwise. Contrary to respondent's assertion, the
- 26 -
Juvenile Act clearly authorizes the action of the trial court in
this case. The court required JDOC, as respondent's legal
custodian, to return Justin for the review hearing and report on
respondent's progress at that review hearing, and JDOC did so.
Further, the trial court did not resentence respondent
at the December hearing. As discussed above, respondent's
October sentence was for an indeterminate term and therefore had
not ended when respondent was returned to the court in December.
At that hearing, respondent made a motion to vacate the
commitment, indicating that he understood the sentence was
ongoing. The court did not resentence respondent when it
declined to grant that motion, nor did it subject respondent to
any further prosecution or punishment. In fact, the sentence
remained completely unaffected by the December hearing because
the motion to vacate was denied. Therefore, respondent was not
subjected to double jeopardy. See People v. Sienkiewicz, 331
Ill. App. 3d 70, 73, 771 N.E.2d 580, 583 (2002) ("The double
jeopardy clause protects a defendant from (1) a second
prosecution after acquittal; (2) a second prosecution after
conviction; and (3) multiple punishments for the same offense").
In the future, a trial court invoking the provisions of
section 5-745 when a respondent minor is sentenced to JDOC should
clearly state that the minor is sentenced to an indeterminate
- 27 -
term in JDOC, which is not to exceed the maximum sentence
possible for an adult. The court should also expressly state
that maximum (such as, for instance, seven years) in its
sentencing order. The court may then order that the minor be
returned to court on a date certain, expressly pursuant to
section 5-745(a). Last, the court should then state that a
hearing will be held pursuant to section 5-745(c) with respect to
a possible change of custody.
C. Respondent's Counsel Was Not Required To
File a Rule 604(d) Certificate
Respondent next contends that his case must be remanded
because his trial counsel failed to file a certificate as
required by Illinois Supreme Court Rule 604(d). That rule
provides, in pertinent part:
"No appeal from a judgment entered upon
a plea of guilty shall be taken unless the
defendant, within 30 days of the date on
which sentence is imposed, files in the trial
court a motion to reconsider the sentence
***. *** The defendant's attorney shall file
with the trial court a certificate stating
that the attorney has consulted with the
defendant either by mail or in person to
- 28 -
ascertain defendant's contentions of error in
the sentence or the entry of the plea of
guilty, has examined the trial court file and
report of proceedings of the plea of guilty,
and has made any amendments to the motion
necessary for adequate presentation of any
defects in those proceedings." 210 Ill. 2d
R. 604(d).
Although these Rule 604(d) requirements apply to juvenile
proceedings (In re J.E.M.Y., 289 Ill. App. 3d 389, 390, 682
N.E.2d 451, 452 (1997)), these requirements do not apply to
appeals other than appeals filed "from a judgment entered upon a
plea of guilty." Therefore, in People v. Mathis, 357 Ill. App.
3d 45, 48, 827 N.E.2d 932, 934 (2005), the court held that a
motion to vacate judgment filed more than 30 days after the
imposition of the defendant's sentence was a collateral attack on
the judgment rather than a direct appeal, and therefore the
defendant was not required to file a Rule 604(d) certificate.
Respondent's appeal simply is not an appeal from the
judgment entered by the trial court upon the plea of guilty.
That judgment, as previously discussed, was entered on October
25, 2005, and respondent did not appeal therefrom. Instead, like
the cause in Mathis, the present appeal arises from a collateral
- 29 -
attack via the December 20, 2005, motion to vacate. Therefore,
no Rule 604(d) certificate was required.
D. This Court Lacks Jurisdiction To Consider Respondent’s
Claim of Credit for Time Served
Finally, respondent argues that he is entitled to
credit for 21 days served while in the custody of the Livingston
County jail awaiting arraignment and 41 days served while on home
confinement pending sentencing. We hold that this court lacks
jurisdiction to consider this claim at this time.
A claim for additional presentence credit cannot be
forfeited by a defendant’s failure to raise the issue in the
trial court. See, e.g., People v. Dieu, 298 Ill. App. 3d 245,
249, 698 N.E.2d 663, 666 (1998) (holding that normal forfeiture
rules do not apply to claims of improper sentence credit for time
served).
However, while forfeiture is a limitation only on the
parties, and therefore may be dispensed with by the court, lack
of jurisdiction in this court cannot be overlooked. Compare
People v. Normand, 215 Ill. 2d 539, 544, 831 N.E.2d 587, 590
(2005) (noting that the rule of forfeiture is an admonition to
the parties and not a limitation on the court), and People v.
Schutz, 344 Ill. App. 3d 87, 90, 799 N.E.2d 930, 932 (2003)
(electing to consider defendant's claims despite forfeiture),
- 30 -
with People v. Collins, 202 Ill. 2d 59, 65, 782 N.E.2d 195, 198
(2002) (holding that appellate court decision rendered without
jurisdiction is void). Therefore, in People v. Flowers, the
supreme court reversed as without jurisdiction an appellate court
decision to vacate a cost-withholding provision in a trial court
order, despite the appellate court’s finding that the trial
court’s order was void:
"A well-established principle of law
holds that a void order may be attacked at
any time or in any court, either directly or
collaterally. [Citation.] The appellate
court relied on this principle to vacate the
cost-withholding provision of the trial
court’s judgment. We note, however, that
there is a flaw in the appellate court’s
reasoning. Although a void order may be
attacked at any time, the issue of voidness
must be raised in the context of a proceeding
that is properly pending in the courts. If a
court lacks jurisdiction, it cannot confer
any relief, even from prior judgments that
are void. The reason is obvious. Absent
jurisdiction, an order directed at the void
- 31 -
judgment would itself be void and of no
effect." People v. Flowers, 208 Ill. 2d 291,
308, 802 N.E.2d 1174, 1184 (2003).
As noted above, this court’s jurisdiction in this case
is limited by the supreme court’s decision in J.T., holding that
a respondent’s failure to timely appeal from sentencing deprives
a reviewing court of jurisdiction over "any issues arising from
either his guilty plea or his sentence." (Emphasis added.)
J.T., 221 Ill. 2d at 346-47, 851 N.E.2d at 6. Respondent's
contention that he is entitled to presentence credit is,
ultimately, a claim that the order committing him to JDOC should
be amended to reflect that credit. In this case, the only order
committing respondent to JDOC was issued at respondent's October
2005 sentencing hearing. Under the supreme court's analysis in
J.T., this court does not have jurisdiction to consider issues
arising from that October sentencing. As previously discussed,
respondent was not sentenced in December 2005 and therefore no
sentencing judgment was issued. The record contains no other
sentencing judgment we could order amended to satisfy
respondent's claim. Respondent’s request for additional
presentence credit is an issue directly "arising from either his
guilty plea or his sentence" and does not arise in any manner
that would confer jurisdiction upon this court.
- 32 -
We also note that our holding is not affected by the
fact that respondent is properly before the court at this time on
issues arising from the December 2005 order denying the motion to
vacate JDOC’s guardianship. Our courts have repeatedly found
jurisdiction over issues raised by criminal defendants on appeal
while dismissing other issues raised in the same appeal for lack
of jurisdiction. See, e.g., People v. O’Connor, 313 Ill. App. 3d
134, 136-37, 728 N.E.2d 1175, 1177 (2000); People v. Lee, 318
Ill. App. 3d 417, 419, 743 N.E.2d 1019, 1021 (2000) (dismissing
the defendant’s claims regarding nonfinal denial of motion to
dismiss for lack of jurisdiction despite finding of jurisdiction
on remaining issues on appeal); see also Faith B., 349 Ill. App.
3d 930, 936, 812 N.E.2d 640, 645 (2004) (holding that the
appellate court lacked jurisdiction over permanency issues on
appeal while retaining jurisdiction over motion to vacate).
Therefore, we hold that this court lacks jurisdiction
to consider respondent’s claim to presentence credit at this
time. We note, however, that the trial court retains
jurisdiction over "nonsubstantial matters" such as the amendment
of the sentencing judgment, despite the filing of an appeal.
Baker v. Department of Corrections, 106 Ill. 2d 100, 106, 477
N.E.2d 686, 689 (1985). Thus, nothing in this ruling precludes
respondent from challenging the sentencing judgment in the trial
- 33 -
court. See People v. Green, 188 Ill. App. 3d 1027, 1030, 544
N.E.2d 1307, 1309-10 (1989) (holding that the court lacked
jurisdiction to consider the defendant's claim of presentence
credit because the defendant had failed to timely appeal the
judgment and sentence, but noting that the defendant could
challenge validity of the sentencing judgment in the trial
court).
III. CONCLUSION
For the foregoing reasons, we dismiss respondent's
claims that his sentence was unauthorized and that he is entitled
to credit for time served for lack of appellate jurisdiction.
The trial court's order is affirmed in all other respects.
Dismissed in part and affirmed in part.
STEIGMANN, J., concurs.
APPLETON, P.J., dissents.
- 34 -
PRESIDING JUSTICE APPLETON, dissenting:
I respectfully dissent from the decision of the
majority and would dismiss this appeal for want of appellate
jurisdiction.
Despite the recognition of what the trial court
attempted to do, sentences imposed on juveniles for criminal
offenses are to be of an indeterminate term. 705 ILCS 405/5-
750(3) (West 2004). That term cannot exceed the maximum adult
sentence for the offense charged. 705 ILCS 405/5-710(7) (West
2004). The imposition of the sentence to the JDOC is a final
order. In re J.N., 91 Ill. 2d 122, 127, 435 N.E.2d 473, 475
(1982).
Here, the trial court brought the juvenile defendant
back to court after 60 days for a review hearing. This is
pursuant to the trial court's inherent ability to modify, by
reduction, any sentence imposed in juvenile cases. See also 705
ILCS 405/5-745(1) (West 2004). The assertion of the majority
that defense counsel made an oral motion for discharge is not
correct. Defense counsel only mirrored the language and original
intention of the trial court to review respondent's status and
progress.
Absent the filing of a motion for discharge or a change
of custody, the trial court was not revested with original
- 35 -
jurisdiction. Had such a motion been filed and denied, an
appealable order would exist. Here, however, the trial court
held a review of the juvenile's progress, found it wanting, and
made no change to the original order. This "review" was pursuant
to the continuing jurisdiction of the trial court created by the
original petition for adjudication, which resulted in a finding
of guilt and imposition of sentence. The opportunity to appeal
that sentence ended on the 30th day following its imposition.
See 188 Ill. 2d R. 606(a).
No new sentence was imposed following review and
nothing was done by the trial court to create a reviewable order.
I would therefore dismiss the appeal.
- 36 -