In re Gabriel W.

2017 IL App (1st) 172120
No. 1-17-2120
Opinion filed December 28, 2017
FOURTH DIVISION
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
In re GABRIEL W., ) Appeal from the Circuit Court
a minor, ) of Cook County.
)
(The People of the State of Illinois, )
)
Plaintiff-Appellee, ) No. 16 JD 02525
)
v. ) The Honorable
) Patricia Mendoza,
Gabriel W., ) Judge, presiding.
)
Defendant-Appellant.) )
JUSTICE GORDON delivered the judgment of the court, with opinion.
Presiding Justice Burke and Justice Ellis concurred in the judgment and opinion.
OPINION
¶1 After being arrested in possession of one firearm, the minor defendant,
Gabriel, age 15, was charged by the State on November 11, 2016, in a three-
count petition for wardship, which alleged two counts of aggravated unlawful
use of a weapon (AUUW) and one count of unlawful possession of a firearm
No. 1-17-2120
(UPF). The two AUUW counts alleged: that he lacked a Firearm Owner's
Identification (FOID) card (count I); and that he was under age 21 (count II).
The UPF count alleged that he was under age 18 (count III). After a bench trial,
the trial court found defendant guilty of all three counts, but merged counts II
and III into count I, the FOID-card count. 1 The court adjudged defendant to be
a ward of the court and sentenced him to 18 months of probation, as well as to a
30-day commitment to the Illinois Department of Juvenile Justice which was
stayed so long as defendant did not violate any of his probation terms.
¶2 On this appeal, defendant claims: (1) that his adjudication for AUUW
based on the lack of a FOID card must be vacated because the State failed to
prove he lacked a FOID card; and (2) that his adjudications for AUUW and
UPF based on his age must be vacated because the State failed to prove his
age.2
¶3 The State concedes that, while its evidence established that defendant did
not present a FOID card to the arresting officers, the State failed to offer any
evidence that defendant actually lacked a FOID card. This court has previously
1
The State's appellate brief states that the trial court merged counts III and I
into count II, and the brief cites in support the mittimus. But this is not what the
mittimus or the trial court stated. The trial court stated "there will be a finding of
guilty on all counts, although, obviously, the other counts will merge into the first
count."
2
Defendant does not argue on appeal that the court lacked juvenile
jurisdiction because he was, in fact, not a juvenile. Rather defendant argues that the
State failed to present sufficient evidence during his bench trial to prove his age.
2
No. 1-17-2120
held that the simple absence of the presentation of a FOID card is insufficient to
prove that a defendant actually lacked a FOID card. In re Manuel M., 2017 IL
App (1st) 162381, ¶ 15. Thus, we vacate the finding of guilt on this count.
¶4 With respect to the other two counts, defendant argues that the State
failed to prove his age at the bench trial, although defendant (1) stated his birth
date at the arraignment and stipulated to juvenile jurisdiction in this case; (2)
testified at the pretrial suppression hearing that he was 15 years old; and (3) did
not object at the bench trial when the arresting officer testified that defendant
was 15 years old. Our supreme court has previously held that, in a juvenile
adjudication, a trial judge in a bench trial does not have to disregard testimony
about age that occurred during another proceeding in the same case. E.g., In re
Brown, 71 Ill. 2d 151, 155 (1978) (rejecting "[t]he contention that because the
proof of age occurred in a different stage of the proceedings" the trial court
cannot consider it); In re Ephriam, 60 Ill. App. 3d 848, 854-55 (1978). Thus,
we do not find this argument persuasive.
¶5 The parties agree that, if we affirm the findings of guilt on the two age-
based counts, we must vacate the less serious offense under the one act, one
crime rule. Thus, for the reasons explained in more detail below, we vacate the
finding of guilt on count I, which was based on the lack of a FOID card; we
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No. 1-17-2120
affirm the findings of guilt on counts II and III, the two age-based counts; but
we vacate count III, the UPF count, under the one act, one crime rule.
¶6 Finally, defendant does not ask us to remand for resentencing. Since the
three counts were all based on the possession of the same handgun at the same
moment in time, and since his sentence was and still is based on an AUUW
count, and since defendant does not seek a remand for resentencing, we do not
order it. He asks us only to correct his sentencing order to reflect that he has
251 days of credit for time served against his 30-day stayed commitment, and
the State joins in this request. Thus, we affirm his adjudication for wardship and
sentence, with the adjudication based on AUUW grounded on age (count II)
rather than lack of a FOID card (count I), but we correct his sentencing order to
reflect 251 days of credit for time served against his 30-day stayed
commitment.
¶7 BACKGROUND
¶8 Although defendant challenges the sufficiency of the evidence he does so
only on the limited questions of proof of (1) age and (2) lack of a FOID card.
Thus, we describe the facts focusing on these two issues.
¶9 On November 10, 2016, defendant was arrested on a street corner in
possession of one loaded handgun. Although he challenged the search before
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No. 1-17-2120
the trial court, he does not raise any issue on appeal concerning either the search
or his possession of the handgun.
¶ 10 One day later, on November 11, 2016, the State charged him in a petition
for adjudication of wardship alleging the three counts, already described above.
¶ 11 At the arraignment, which was also on November 11, 2016, defendant
and his mother were present when his counsel stated that defendant
"stipulate[d] to juvenile court jurisdiction." The trial court then asked
defendant:
"THE COURT: Is your date of birth *** 2001?
DEFENDANT: Yes."
Defense counsel also stipulated to a finding of probable cause.
¶ 12 On December 6, 2016, defendant filed a motion to quash arrest and
suppress evidence on the ground that the stop and search lacked reasonable
suspicion and/or probable cause. As we observed, defendant does not renew
this issue on appeal, so we discuss only the portions of the suppression hearing
that relate to the issues before us, namely, defendant's age and lack of a FOID
card.
¶ 13 At the suppression hearing on January 18, 2017, defendant testified under
oath that he was 15 years old:
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No. 1-17-2120
"ASSISTANT PUBLIC DEFENDER (APD): How old are you,
Gabriel?
DEFENDANT: Fifteen."
After the trial court denied defendant's motion to suppress, the parties
proceeded, without a break and on the same day, to the bench trial. The bench
trial was held before the same trial judge who had just heard the suppression
motion.
¶ 14 With respect to a FOID card, Officer Ghiloni,3 one of the arresting
officers testified as follows:
"ASSISTANT STATE'S ATTORNEY (ASA): Did the minor present
a FOID card to you at any time?
OFFICER GHILONI: No."
¶ 15 Officer Ghiloni's partner, Officer Olson,4 testified about what occurred
after the minor was arrested and transported to the police station. With respect
to defendant's age, he testified as follows:
"ASA: *** [W]hat did you do when you got to the police station?
OFFICER OLSON: I got the minor's name, date of birth, mother's
information—or parent's information, address.
3
Officer Ghiloni did not testify to his first name.
4
Officer Olson did not testify to his first name.
6
No. 1-17-2120
ASA: And was this minor under the age of 18?
OFFICER OLSON: Yes.
ASA: And just to be clear, the minor that you were processing at the
station was the Minor Respondent, Gabriel [W.], in this case; true?
OFFICER OLSON: Yes.
ASA: And you testified that he was under the age of 18?
OFFICER OLSON: That's correct.
***
ASA: Now, you testified that the minor was under the age of 18, but
do you recall how old the minor was?
OFFICER OLSON: Specifically, no. I don't remember.
ASA: Okay. Is there anything that would—is your memory
exhausted?
OFFICER OLSON: Yes.
ASA: And is there anything that would refresh your memory as to the
question I asked you?
OFFICER OLSON: If I saw a copy of the case report, the arrest
report that was generated.
***
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No. 1-17-2120
ASA: I'm giving to the witness what I've marked as People's Exhibit
No. 1. Can you please look at that and once your recollection is
refreshed , please look up. (Short pause.)
ASA: And may I have it back. Thank you. Is your recollection
refreshed?
OFFICER OLSON: Yes.
ASA: And do you recall how old this Minor Respondent was?
OFFICER OLSON: Fifteen years old."
During this prolonged discussion concerning defendant's age, the defense did
not object once. The ASA also asked Officer Olson if defendant had presented
the officers "at any time" with a FOID card. Officer Olson answered "[n]o."
¶ 16 When the State rested, defendant moved for a directed finding on the sole
ground that the State had failed to introduce the inventory report concerning the
gun or any testimony about the inventorying of the gun or its chain of custody.
After the trial court denied defendant's motion, the parties proceeded to closing
argument. The State asked the trial court to adopt, as its closing argument, its
argument concerning defendant's motion for a directed finding, but it reserved
rebuttal argument. The defense, similarly, asked the trial court to adopt its
argument concerning the motion as its closing argument. In rebuttal, which the
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No. 1-17-2120
State had reserved, it argued, among other things, that "we've heard testimony
that he was under the age of 18" and "[t]hat he did not have a FOID card."
¶ 17 After hearing the evidence at trial and the arguments of counsel, the trial
court found: "there will be a finding of guilty on all counts, although,
obviously, the other counts will merge into the first count."
¶ 18 On February 16, 2017, defendant filed a motion to reconsider the trial
court's denial of his motion to quash arrest and suppress evidence. As noted,
this issue is not raised on appeal. The trial court heard further argument and
testimony from Officer Ghiloni on this issue and again denied the motion and
then, pursuant to defendant's request, proceeded to schedule a sentencing
hearing.
¶ 19 On July 19, 2017, at the sentencing hearing, defense counsel stated that
defendant was 16 years old. After listening to factors in mitigation and
aggravation, the trial court adjudged defendant to be a ward of the court and
sentenced him to 18 months of probation, as well as to a 30-day commitment to
the Illinois Department of Juvenile Justice which was stayed so long as
defendant did not violate any of his probation terms. Defendant filed a notice
of appeal on August 18, 2017, and this appeal followed.
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No. 1-17-2120
¶ 20 ANALYSIS
¶ 21 On this appeal, defendant claims: (1) that his adjudication for AUUW
based on the lack of a FOID card must be vacated because the State failed to
present sufficient evidence at his bench trial that he lacked a FOID card; and (2)
that his adjudications for AUUW and UPF based on his age must be vacated
because the State failed to present sufficient evidence at his bench trial of his
age.
¶ 22 For the following reasons, we vacate the finding of guilt on count I,
which was based on the lack of a FOID card; we affirm the findings of guilt on
counts II and III, the two age-based counts; but we vacate count III, the UPF
count, under the one act, one crime rule. Since the three counts were all based
on the possession of the same handgun at the same moment in time, and
defendant does not ask us to remand for resentencing, we do not order a
resentencing. He asks us only to correct his sentencing order to reflect that he
has 251 days of credit against his 30-day stayed commitment, and the State
joins in this request. Thus we affirm his adjudication for wardship and sentence,
with the adjudication based on AUUW grounded on age (count II) rather than
lack of a FOID card (count I), but correct his sentencing order to reflect 251
days of credit against his 30-day stayed commitment.
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No. 1-17-2120
¶ 23 I. Three Phases of Juvenile Delinquency Proceedings
¶ 24 Before discussing defendant's claims, we set forth the three phases of
juvenile delinquency proceedings specified in the Juvenile Court Act of 1987
(Act) (705 ILCS 405/5-101 et seq. (West 2016)): "the findings phase, the
adjudicatory phase, and the dispositional phase." In re Sammantha V., 234 Ill.
2d 359, 365 (2009). "The findings phase consists of a trial and determination of
guilt." In re Sammantha V., 234 Ill. 2d at 365. "During this phase, the trial
court applies the reasonable doubt standard of proof and the rules of evidence
that would be followed in a criminal case to determine whether the minor
should be found delinquent." In re Sammantha V., 234 Ill. 2d at 365. "In a
juvenile delinquency case, a finding of guilt and a finding of delinquency are
one and the same." In re Veronica C., 239 Ill. 2d 134, 145 (2010).
¶ 25 "If a delinquency finding is entered, the matter proceeds to sentencing."
In re Sammantha V., 234 Ill. 2d at 365. "The sentencing proceeding includes
the adjudication phase, when the court determines whether it is in the best
interests of the minor and the public to make the minor a ward of the court." In
re Sammantha V., 234 Ill. 2d at 365. If the minor is made a ward of the court,
the matter proceeds to the dispositional phase where the court fashions an
appropriate sentence that will best serve the minor and the public." In re
Sammantha V., 234 Ill. 2d at 365.
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No. 1-17-2120
¶ 26 In the case at bar, the same trial judge conducted all three phases and
entered all three findings: a finding of guilt or delinquency; a finding that
defendant should be made a ward of the court; and a finding of an appropriate
sentence. The same trial judge also heard defendant's motion to suppress and
conducted the pretrial suppression hearing.
¶ 27 II. Sufficiency of the Evidence
¶ 28 No person, adult or juvenile, may be convicted or adjudicated guilty of a
crime " 'except upon proof beyond a reasonable doubt of every fact necessary to
constitute the crime with which he is charged.' " In re Omar F., 2017 IL App
(1st) 171073, ¶ 36 (quoting In re Winship, 397 U.S. 358, 364 (1970)). See also
In re Winship, 397 U.S. at 368 ("The constitutional safeguard of proof beyond a
reasonable doubt applies during the adjudicatory stage of juvenile delinquency
proceedings."). When a minor defendant challenges the sufficiency of the
evidence in his or her adjudication, the standard of review is whether, after
viewing the evidence in the light most favorable to the State, any rational trier
of fact could have found the essential elements of the charge beyond a
reasonable doubt. In re Omar F., 2017 IL App (1st) 171073, ¶ 36; In re Q.P.,
2015 IL 118569, ¶ 24 ("in delinquency proceedings, as in criminal cases, a
reviewing court must decide ' " whether [after] viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the
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No. 1-17-2120
essential elements of the crime beyond a reasonable doubt " ')) (quoting People
v. Austin M., 2012 IL 111194, ¶ 107 (quoting In re Jonathan C.B., 2011 IL
107750, ¶ 47))); Jackson v. Virginia, 443 U.S. 307, 313 (1979) ("whether, after
viewing the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime beyond a
reasonable doubt" (emphasis in original)).
¶ 29 When reviewing an adjudication on appeal, a reviewing court may not
substitute its judgment for that of the trier of fact, particularly on issues of
witness credibility, the weight their testimony deserves or the reasonable
inferences that may be drawn from their testimony or other evidence. This is
because it was the trial court that observed and heard the witnesses. In re
Jonathan C.B., 2011 IL 107750, ¶ 60.
¶ 30 In addition, "[a] trier of fact is not required to disregard inferences which
flow normally from the evidence before it." In re Jonathan C.B., 2011 IL
107750, ¶ 60. The trier of fact also "need not be satisfied beyond a reasonable
doubt as to each link in the chain of circumstances." In re Jonathan C.B., 2011
IL 107750, ¶ 60. Rather, the evidence is sufficient, if all the evidence taken
together, satisfies the trier of fact beyond a reasonable doubt of the minor's
guilt. In re Jonathan C.B., 2011 IL 107750, ¶ 60.
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No. 1-17-2120
¶ 31 When determining the correctness of a trial court's findings in a juvenile
case, a reviewing court may affirm on any basis found in the record. See In re
Veronica C., 239 Ill. 2d at 151.
¶ 32 III. Statutes at Issue
¶ 33 Defendant was charged under the following statutes. Counts I and II
charged defendant with violating the AUUW statute which provides in relevant
part:
"(a) A person commits the offense of aggravated unlawful use of a
weapon when he or she knowingly:
***
(2) Carries or possesses on or about his or her person, upon any public
street, alley, or other public lands within the corporate limits of a city,
village or incorporated town, except when an invitee thereon or therein,
for the purpose of the display of such weapon or the lawful commerce in
weapons, or except when on his or her own land or in his or her own
abode, legal dwelling, or fixed place of business, or on the land or in the
legal dwelling of another person as an invitee with that person's
permission, any pistol, revolver, stun gun or taser or other firearm; and
(3) One of the following factors is present:
***
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No. 1-17-2120
(C) the person possessing the firearm has not been issued a currently
valid [FOID] card; or
***
(I) the person possessing the weapon was under 21 years of age and in
possession of a handgun, unless the person under 21 is engaged in lawful
activities under the Wildlife Code or described in subsection 24-2(b)(1),
(b)(3), or 24-2(f)."5 720 ILCS 5/24-1.6(a) (West 2016).
¶ 34 Count III charged defendant with violating the UPF statute which
provides in relevant part:
"(a) A person commits the offense of unlawful possession of firearms
or firearm ammunition when:
(1) He is under 18 years of age and has in his possession any firearm
of a size which may be concealed upon the person[.]" 720 ILCS 5/24­
3.1(a)(1) (West 2016).
¶ 35 As noted, the only elements of these offenses that defendant challenges
on appeal are the lack of a FOID card and his age.
5
Subsections 24-2(b)(1) and 24-2(f) concern practice shooting at target
ranges; and subsection 24-2(b)(3) concerns hunting, trapping and fishing. 720
ILCS 5/24-2(b)(1), (b)(3), (f) (West 2016).
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No. 1-17-2120
¶ 36 IV. FOID Card
¶ 37 Defendant argues, and the State agrees, that his adjudication for AUUW
based on the lack of a FOID card must be vacated because the State failed to
prove he lacked a FOID card.
¶ 38 The State concedes that, although it introduced evidence showing that
defendant did not present a FOID card to the arresting officers, it failed to offer
any evidence that defendant actually lacked a FOID card.
¶ 39 Faced with almost the same facts, this court observed in another case
earlier this year:
"On appeal, [the defendant] first argues, and the State concedes, that he
was not proved delinquent beyond a reasonable doubt of AUUW
predicated on not having been issued a valid FOID card and not whether
the individual has a FOID card 'in his or her possession.' People v.
Holmes, 241 Ill. 2d 509, 522 (2011). Here, [the officer's] testimony
indicated that [the defendant] did not present a FOID card following his
arrest, but the State presented no evidence that [the defendant] had not
been issued a FOID card. Consequently, we agree with [the defendant],
accept the State's concession, and reverse [the defendant's] delinquency
adjudication and sentence for AUUW predicated on not having been
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No. 1-17-2120
issued a valid FOID card." In re Manuel M., 2017 IL App (1st) 162381,
¶ 15.
¶ 40 Thus, we vacate the finding of guilt on count I, which was the only count
based on the lack of a FOID card.
¶ 41 V. Age-Based Counts
¶ 42 Defendant also argues that his adjudications for AUUW and UPF based
on his age must be vacated because the State failed to prove his age. Defendant
argues that the State failed to present sufficient evidence of his age at his bench
trial, although defendant testified under oath at a suppression hearing in the
same case and before the same trial judge that he was only 15 years old.
¶ 43 Our Illinois Supreme Court ruled on this same exact issue 40 years ago in
Brown and nothing suggests that the law changed in the intervening years. In re
Brown, 71 Ill. 2d at 155.
¶ 44 In Brown, as in our case, "a hearing was held on [the defendant's] motion
to suppress evidence due to the alleged illegality of his arrest." Brown, 71 Ill.
2d at 153. In Brown, as in our case, the juvenile defendant testified at the
pretrial suppression hearing that he was, in fact, 15 years old. Brown, 71 Ill. 2d
at 153. In Brown, as in our case, after denying the suppression motion, the same
trial judge immediately proceeded with the bench trial. Brown, 71 Ill. 2d at 153.
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No. 1-17-2120
In Brown, as in our case, the defendant argued that there was insufficient proof
of his age. Brown, 71 Ill. 2d at 155.
¶ 45 Our supreme court stated: "We disagree as to the insufficiency of the
proof." Brown, 71 Ill. 2d at 155. It explained: "The contention that because
the proof of age occurred at a different stage of the proceedings only minutes or
at most an hour or two earlier, the judge who heard the testimony cannot
consider it in deciding the case is, in our opinion, without merit. Clearly, a
court may and should take judicial notice of other proceedings in the same case
which is before it and the facts established therein." Brown, 71 Ill. 2d at 155.
See also In re Ephriam, 60 Ill. App. 3d at 854-55 (discussing and applying
Brown).
¶ 46 The case at bar is even stronger than Brown because in Brown the State
presented no evidence of age during the bench trial (Brown, 71 Ill. 2d at 153­
54), whereas in our case the State called an officer who testified that he
obtained defendant's age while processing the arrest at the police station and
defendant's age was 15 years old.
¶ 47 More recently, in 2015, the appellate court acknowledged the continued
vitality of Brown but distinguished it on the ground that Brown involved sworn
testimony, while the case before it did not. In re S.M., 2015 IL App (3d)
18 No. 1-17-2120
140687, ¶¶ 15-16. Similar to Brown, our case involves defendant's sworn
testimony.
¶ 48 In addition, defendant stipulated to juvenile jurisdiction and stated his
age at his arraignment. Article V of the Act provides, in relevant part, that
"[p]roceedings may be instituted under the provisions of this Article concerning
any minor who prior to his or her 18th birthday has violated or attempted to
violate any *** law or ordinance." 705 ILCS 405/5-120 (West 2016). Thus, by
stipulating to juvenile jurisdiction, defendant was stipulating to the fact that he
was under 18 years old on the day of the alleged offense. See also In re
Ephriam, 60 Ill. App. 3d at 853-55 (rejecting the argument that the State failed
to prove a juvenile defendant's age, where the trial court had asked his age at his
arraignment and the defendant answered that he was 15); In re S.M., 2015 IL
App (3d) 140687, ¶ 28 (discussing the continuing vitality of In re Ephriam).
¶ 49 While "procedural silence with respect to the allegations contained in a
charging instrument *** cannot be construed as a judicial admission," a
stipulation is the opposite of procedural silence. In re S.M., 2015 IL App (3d)
140687, ¶ 21. " ' A criminal defendant may waive, by stipulation, the need to
prove all or part of the case that the State has brought against him.' ' People v.
Toliver, 2016 IL App (1st) 141064, ¶ 31 (quoting People v. Washington, 343 Ill.
App. 3d 889, 900 (2003)). By conceding the issue of juvenile status, or age,
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No. 1-17-2120
"counsel demonstrated the intent of the defense to eliminate that issue from the
case and focus on other aspects of the defense." Toliver, 2016 IL App (1st)
141064, ¶ 31. In short, by stipulating to defendant's status as a juvenile, defense
counsel removed that issue from this case.
¶ 50 The reasons for forfeiture are particularly compelling in a juvenile case,
where the juvenile defendant stipulates to his juvenile status in order to gain the
benefits of the Act and then, on appeal, argues for reversal because the State
failed to introduce evidence of that juvenile status at his bench trial—while still
conceding that juvenile jurisdiction applies. "A party forfeits her right to
complain of an error where to do so is inconsistent with the position taken by
the party in an earlier court proceeding." In re E.S., 324 Ill. App. 3d 661, 670
(2001) (citing McMath v. Katholi, 191 Ill. 2d 251, 254 (2000)).
¶ 51 Last but certainly not least, the appellate court has found that a police
officer's testimony at a bench trial may suffice to establish a juvenile
defendant's age. In S.M., the appellate court discussed different ways that the
State could satisfy this burden, stating:
"In other cases, a police officer testifies before the court about an
offender's response to inquiries from law enforcement officers regarding
his age. Such testimony from the officer is admissible and may satisfy the
State's burden of proof on the issue of the accused's age. See People v.
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No. 1-17-2120
Dalton, 91 Ill. 2d 22, 30 (1982)." (Emphasis in original.) In re S.M.,
2015 IL App (3d) 140687, ¶ 16.
¶ 52 In S.M., the appellate court reversed because the State failed to present
sufficient evidence of age at a bench trial in a juvenile case. However, the S.M.
case differs from the case at bar, in that (1) in S.M. the appellate court observed
that at the bench trial "neither officer testified concerning the respondent's age
at the time of the occurrence," whereas in our case one of the officers did testify
to the age obtained while processing the arrest (In re S.M., 2015 IL App (3d)
140687, ¶¶ 5, 16); (2) in S.M. there is no indication that the defendant testified
under oath about his age at a pretrial suppression hearing, whereas in our case
he did; (3) in S.M. the defendant objected both at the bench trial and in a timely
posttrial motion that the State had failed to present any evidence of age at the
bench trial, whereas in our case defendant did not object either at the bench trial
or in a postrial motion to the officer's testimony about defendant's age (In re
S.M., 2015 IL App (3d) 140687, ¶¶ 5, 8); and (4) lastly, in S.M. there is no
indication that defendant stipulated to juvenile jurisdiction, whereas in our case
he did. (In re S.M., 2015 IL App (3d) 140687, ¶ 4). In other words, all the
considerations that drove the S.M. court to find insufficient evidence in the case
before it are actually reasons to find sufficient evidence in the case before us.
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No. 1-17-2120
¶ 53 Thus, we do not find persuasive defendant's arguments to reverse the
findings of guilt on his age-based counts.
¶ 54 VI. One Act, One Crime Rule
¶ 55 Both the State and defendant agree that, if we affirm the trial court's
findings of guilt on the two age-based counts, we must vacate the less serious
offense under the one act, one crime rule.
¶ 56 Our supreme court has stated unequivocally: "we hold that the one-act,
one-crime rule applies to juvenile proceedings. To the extent that decisions of
the appellate court hold otherwise, they are overruled." In re Sammantha V.,
234 Ill. 2d at 375. The Sammantha V. court found "that the trial court violated
the one-act, one-crime rule," when the trial court found the juvenile defendant
guilty of two counts of aggravated battery that were based on the same battery
and then "failed to merge the counts or otherwise indicate on the record that
[the defendant's] adjudication of delinquency was based on only one count." In
re Sammantha V., 234 Ill. 2d at 375.
¶ 57 Thus, although we affirm the trial court's findings of guilt on counts II
and III, the two age-based counts, we vacate count III, the UPF count, under the
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No. 1-17-2120
one act, one crime rule.
¶ 58 CONLCUSION
¶ 59 For the foregoing reasons, we vacate the finding of guilt on count I,
which was based on the lack of a FOID card; we affirm the findings of guilt on
counts II and III, the two age-based counts; but we vacate count III, the UPF
count, under the one act, one crime rule. Since the three counts were all based
on the possession of the same handgun at the same moment in time, and
defendant does not ask us to remand for resentencing, we do not order a
resentencing. He asks us only to correct his sentencing order to reflect that he
has 251 days of credit against his 30-day stayed commitment, and the State
joins in this request. Thus we affirm his adjudication for wardship and sentence,
with the adjudication based on AUUW grounded on age (count II) rather than
lack of a FOID card (count I), but correct his sentencing order to reflect 251
days of credit for time served against his 30-day stayed commitment.
¶ 60 Affirmed in part; vacated in part. Sentencing order modified.
23