In re Derrico G.

2014 IL 114463

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

(Docket No. 114463)

In re DERRICO G., a Minor (The People of the State of Illinois, Appellant, v.

Derrico G., Appellee).

Opinion filed August 4, 2014.

JUSTICE KARMEIER delivered the judgment of the court, with opinion.

Chief Justice Garman and Justices Thomas, Kilbride, and Theis concurred in the

judgment and opinion.

Justice Burke dissented, with opinion, joined by Justice Freeman.

OPINION

¶1 At issue in this case is the constitutionality of section 5-615 of the Juvenile Court

Act of 1987 (the Act) (705 ILCS 405/5-615 (West 2010)), which, as construed by this

court in In re Veronica C., 239 Ill. 2d 134 (2010), grants a State’s Attorney, among

others, the authority to object to the entry of an order of continuance under supervision

in a juvenile case before a finding of guilt. In this case, the circuit court of Cook County

found section 5-615 unconstitutional, facially and as applied, reasoning that it violates

separation of powers, equal protection, and due process guarantees. Pursuant to

Supreme Court Rules 603 and 660(a) (Ill. S. Ct. R. 603 (eff. Feb. 6, 2013); R. 660(a)

(eff. Oct. 1, 2001)), the State’s appeal comes directly to this court. For the reasons that

follow, we reverse in part and vacate in part the judgment of the circuit court and

remand for proceedings consistent with this opinion.

¶2 PRINCIPAL STATUTE INVOLVED

¶3 At the time of proceedings below, section 5-615 of the Act (705 ILCS

405/5-615(1), (2) (West 2010)), provided in pertinent part:

Ҥ 5-615. Continuance under supervision.

(1) The court may enter an order of continuance under supervision for an

offense other than first degree murder, a Class X felony or a forcible felony (a)

upon an admission or stipulation by the appropriate respondent or minor

respondent of the facts supporting the petition and before proceeding to

adjudication, or after hearing the evidence at the trial, and (b) in the absence of

objection made in open court by the minor, his or her parent, guardian, or legal

custodian, the minor’s attorney or the State’s Attorney.

(2) If the minor, his or her parent, guardian, or legal custodian, the minor’s

attorney or State’s Attorney objects in open court to any continuance and insists

upon proceeding to findings and adjudication, the court shall so proceed.”

¶4 An amendment to the Act, effective January 1, 2014, while still preventing the

circuit court from entering an order of continuance under supervision over the State’s

Attorney’s objection before a finding of delinquency, now allows the court to

unilaterally order a continuance under supervision upon a finding of delinquency. See

Pub. Act 98-62 (eff. Jan. 15, 2014). The statute now reads:

“Sec. 5-615 Continuance under supervision.

(1) The court may enter an order of continuance under supervision for an

offense other than first degree murder, a Class X felony or a forcible felony:

(a) upon an admission or stipulation by the appropriate respondent or

minor respondent of the facts supporting the petition and before the court

makes a finding of delinquency, and in the absence of objection made in

open court by the minor, his or her parent, guardian, or legal custodian, the

minor’s attorney or the State’s Attorney; or

(b) upon a finding of delinquency and after considering the

circumstances of the offense and the history, character, and condition of the

minor, if the court is of the opinion that:

(i) the minor is not likely to commit further crimes;

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(ii) the minor and the public would be best served if the minor were

not to receive a criminal record; and

(iii) in the best interests of justice an order of continuance under

supervision is more appropriate than a sentence otherwise permitted

under this Act.” (Strikethroughs and underscores omitted.) Pub. Act

98-62 (eff. Jan. 1, 2014) (amending 705 ILCS 405/5-615 (West 2012)).

¶5 BACKGROUND

¶6 On January 26, 2012, the attorneys in this case, assistant State’s Attorney Jennifer

Bruzan, and assistant Public Defender Geraldine Nolfi, appeared before the judge in

this cause on a different charge lodged against the respondent-minor—possession of a

controlled substance—that predated the unrelated conduct which underlies the felony

charge to which respondent ultimately pled guilty herein. The respondent did not

appear. At that time, the State proffered the following evidence in support of a request

for a juvenile arrest warrant.

¶7 On January 5, 2012, Officers Connor and McCarthy were on patrol when, at 2700

West Flournoy Street in Chicago, Illinois, they observed respondent shouting, “rocks,

rocks”—a street term for crack cocaine—and passing foot traffic in an attempt to solicit

the sale of narcotics. The respondent was placed in custody, and a custodial search of

his person revealed one clear, plastic bag containing five mini-Ziploc bags ultimately

determined to contain crack cocaine.

¶8 Based on that proffer, the judge found “probable cause” for issuance of a juvenile

arrest warrant, and “urgent and immediate necessity”—presumably for detention of the

respondent. The court nonetheless decided to “enter and continue” a juvenile arrest

warrant, and instructed Ms. Nolfi to contact respondent’s mother to advise her of the

need to be present, with the respondent, at the next scheduled court date. The court and

the assistant State’s Attorney also discussed the possibility of a drug treatment program

that would result in deferred prosecution upon successful completion. At that juncture,

the State appeared to be receptive to the idea of deferred prosecution under appropriate

circumstances.

¶9 On February 10, 2012, the respondent appeared before the judge on new charges:

two counts of aggravated battery and three counts of resisting a peace officer.

Respondent’s counsel stipulated to probable cause, and the court again found “urgent

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and immediate necessity.” The court denied the State’s request for electronic

monitoring, imposed a curfew, and sent the respondent home with his older brother,

who apparently had “some history” with the judge as well. As was the case on January

26, respondent’s mother did not attend because of an ongoing health issue, represented

to be congestive heart failure. When questioned in court, respondent indicated he did

not know who his father was.

¶ 10 Respondent did not appear at the next scheduled court date; nor did his mother.

¶ 11 Neither respondent nor his mother timely appeared at the next court date, April 5,

2012, and a juvenile arrest warrant was issued. Thereafter, that same day, respondent

and his mother did appear. Counsel for the respondent then announced that the minor

would plead guilty in the aggravated battery case, and there would be a recommended

sentence. The State confirmed that there was a plea agreement, the principal terms of

which included a plea of guilty to one count of aggravated battery on a public way, the

nolle prosequi of another aggravated battery count and the striking, on leave to

reinstate, of multiple resisting charges involving three police officers, as well as the

nolle prosequi of the prior, unrelated felony charge of possession of a controlled

substance, and a “recommended” sentence of 18 months’ probation. The State

indicated before the two arrests for the aggravated battery and possession charges the

respondent “had one prior arrest on November 1, 2009, for aggravated battery with a

weapon, not a firearm *** but it looks like nothing came of that.”

¶ 12 The court then advised the respondent of the nature of the charge to which he would

plead and the possible punishment. In the latter regard, the court suggested that

supervision was possible. The following exchange then took place:

“MS. BRUZAN [Assistant State’s Attorney]: For a Class 3 felony, your

Honor?

THE COURT: Yes.

MS. BRUZAN: No.

THE COURT: Yes. Or it could be all the way up to five years in jail.

MS. BRUZAN: You’re correct in that he could receive supervision but only

if it was by agreement of all the parties.

THE COURT: Oh, well, the supreme court has yet to answer that question.”

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¶ 13 The court then digressed into a monologue concerning the status of other cases in

which it had held the consent provision of section 5-615 unconstitutional, concluding,

in the course of that discussion: “So right now in this courtroom in these four walls, if I

want to give supervision, you can take me up on appeal and tell the supremes or ask the

supremes to make a ruling.” The court then resumed its admonishments, indicating that

it had “correct[ed] the State’s Attorney here” with respect to the court’s authority to

grant supervision. The court thereafter advised the respondent of his trial rights and

ascertained that his guilty plea was voluntary. The judge then directed the State to

provide a factual basis.

¶ 14 The State indicated that Officer Lindahl would testify that on the date pertinent to

the charge, at approximately 9:55 p.m., he and other officers were dispatched to a

disturbance on the street where they encountered “a large number of people,” among

them, the respondent and his brother. Officer Lindahl would testify, while he was

assisting in the arrest of the respondent’s brother, the respondent lowered his shoulder

and charged into Officer Lindahl, attempting to knock him to the ground and, in doing

so, hit Officer Lindahl about the body. Officer Lindahl would further testify that, while

attempting then to arrest the respondent for aggravated battery, the respondent began

swinging his hands and arms and failed to follow verbal direction to put his hands

behind his back. He stiffened his arms and pulled away, refusing to be handcuffed. It

took a number of officers to properly handcuff him.

¶ 15 The respondent stipulated to those facts and persisted in his plea of guilty.

¶ 16 The court accepted the plea of guilty, but indicated it would not enter judgment on

the plea at that time. The court again referenced another case in which it had held the

consent provision of the statute unconstitutional and had placed a minor on supervision

over the objection of the State. The court suggested, in accord with its ruling there:

“[T]hat’s my thinking, but we’ll see where we’re going. And I haven’t made a decision

yet. I’m just putting everybody on notice.” The court then continued the matter for

preparation of a social investigation report, “sentencing,” and status on the possession

case, the latter because the State declined, pending “sentencing,” to immediately

nol-pros that offense. Before concluding proceedings, the court addressed the

respondent’s counsel regarding the “possibility of supervision,” and the following

colloquy ensued:

“THE COURT: Ms. Nolfi [Assistant Public Defender], this may be a

case—I’m considering the possibility of supervision.

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MS. NOLFI: Judge, I was actually trying to negotiate that because the

mother tells me that if there’s a—if there’s a probation as a tenant—if there’s

someone, a minor living in her—going to subsidize housing on probation, that

she would be evicted.

MS. BRUZAN: Your Honor, if we’re going to bring that information in,

then I would also bring in there’s other people in the household, including the

mother herself, who are currently on probation.

THE COURT: Well—

MS. BRUZAN: I mean I’m not—If we’re going to be bringing in people—

THE COURT: No, I’m not considering doing anything other than to tell

him—and I’m not doing sentencing now. I’m just telling him. I’m

contemplating—

MS. NOLFI: Right.”

¶ 17 The court then took care to clarify its role, or lack thereof, in orchestrating

circumstances that might ultimately result in a continuance under supervision:

“THE COURT: Ms. Nolfi, let me make sure the record is clear, you did not

know and I have not discussed with you the fact that I’m contemplating

supervision on this case.

MS. NOLFI: No.

THE COURT: You, in good faith, tried to the best of your ability to make it

a supervision case.

MS. NOLFI: I did.

THE COURT: And in your negotiations with the State, the lowest they

would be willing to go is probation.

MS. NOLFI: Yes.

THE COURT: And that’s fine. And I will leave it at that.”

The court then admonished the respondent and his mother that the respondent should

behave himself in the interim to the next hearing so that the court might order

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supervision at that time. The court’s admonishments were interrupted only by the

court’s chastisement of the respondent for yawning, open-mouthed, while the court

spoke, and the court’s digression into yet another discussion of the cases in which the

court had ruled the consent provision unconstitutional. In the course of that discussion,

the judge emphasized his singularity in the state’s judiciary, the amount of time this

court was taking to render a decision in one of the cases in which he found the pertinent

statute unconstitutional, i.e., In re Danielle J., No. 10 JD 336 (Cir. Ct. Cook Co.), and

how the respondent’s actions might affect the posture of this case prospectively:

“THE COURT: Right now, in any other courtroom in the state of Illinois,

by my thinking, in juvenile court, the judge has to get permission from the

State’s Attorney in order to give supervision.

I believe I’m an exception and maybe the only one that right now has found

the law unconstitutional, separate and distinctly from In Re: Tyrees C., is by the

way, In Re: Danielle J., cited the Supreme Court Number 110810. It’s not the

same number, though.

That case is up in the supreme court now waiting [sic] a resolution. It’s been

up there since July of 2010. So I’m waiting to get some guidance. But for right

now, I found that law unconstitutional. So I’m out there a lone bird out there all

by myself and it gets lonely on that limb that I’m on, but I don’t want [the

respondent] to break it off unnecessarily.”

¶ 18 At the next hearing, on May 1, 2012—what the court described as a “sentencing”

hearing—the State emphasized at the outset that the recommendation of 18 months’

probation, a component of the parties’ negotiated plea agreement, had been the

recommendation of “the State and the Public Defender.” (Emphasis added.) Ms.

Bruzan briefly stated the principal reason for the State’s insistence upon a disposition

of probation, that being the fact that the respondent “did pick up two felony cases

within a short period of time.” She noted that “[t]he State could have elected to proceed

on both of those,” which she characterized as “provable cases.” Ms. Bruzan also stated:

“I just want to make sure it’s on the record that the State would be objecting to any

supervision for the Minor.”

¶ 19 Counsel for respondent did not contradict the State’s representation that the joint

recommendation of 18 months’ probation in the parties’ plea agreement had been a

component of the agreement. Ms. Nolfi in fact conceded: “The Minor did agree to

eighteen months of felony probation on the last court date.” She did, however, suggest

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that the respondent was a candidate for supervision. She concluded: “[I]n the spirit of

the Juvenile Court Act, there’s no objection if you want to sentence the Minor to

supervision.” (Emphasis added.)

¶ 20 The court acknowledged the filing of the social investigation report, and indicated

it would be “made a part of the file and used for purposes of sentencing.” The court

noted that the probation officer had therein agreed with the recommendation of 18

months’ probation, and the court asked if he would also agree with “felony

supervision,” to which the probation officer replied affirmatively. Thereafter, the court

made no reference to the report or information contained therein, focusing instead on

constitutional issues.

¶ 21 The court first addressed whether it was “obligated” “to go along with probation”

or whether it “could impose an order of supervision.” The court mentioned various

opinions rendered by this court, including this court’s decision in In re T.W., 101 Ill. 2d

438 (1984), wherein this court upheld the consent provision of the statute against the

contention that it violated separation of powers. The court found this court’s decision in

In re T.W. was not controlling for various reasons, and noted that opinion did not, in

any event, consider an equal protection challenge to the statute. Although the court

made contradictory statements with respect to whether the court had or had not made a

finding of guilt in this case, the court ultimately distinguished this court’s decision in

People ex rel. Devine v. Stralka, 226 Ill. 2d 445 (2007), inter alia, on the ground that

the circuit court was there vacating a finding of delinquency already entered. In the

course of the court’s discussion, the court stated:

“This Court has been asked to consider supervision after a finding.

Actually, I’ve not been asked. I’m considering it myself after the finding of

guilt but before the adjudication and sentencing. And by the way, I’ve not

entered judgment on the plea. And what that means to me is the Judge Stralka

decision is not binding on this Court on this case, and I need not follow it.

Stralka’s ruling remains good law. I need to emphasize that. I’m not talking

about a motion to vacate the finding of delinquency entered and continued. In

addition, the ruling on Judge Stralka’s case in the Supreme Court never

considered the arguments of equal protection in reaching its decision.”

¶ 22 The court then demanded of the “first chair” of the assistant State’s Attorneys

present: “I would like to know which one of the attorneys actually made the decision to

make this a probation matter as versus a supervision matter.” Assistant State’s Attorney

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Karr responded that it was the policy of the State’s Attorney’s office not to agree to

supervision on any felony case, and noted, in this instance, the respondent had two

felony cases set for trial on the date of the guilty plea.

¶ 23 The court then commenced extensive questioning of the three assistant State’s

Attorneys present, asking them how many years they had been out of law school, how

many years they had been with the State’s Attorney’s office, what training they had had

pertinent to dispositional matters, and who was involved in the case review process. In

the course of the court’s inquiry, the court observed: “I’ve been in law enforcement for

41 years.” “I’ve been a judge in Juvenile Court longer—twice as long as Sarah’s—Ms.

Karr has been in the Cook County State’s Attorney’s Office.” At one point, the court

mentioned what appears to have been the only conceivable basis for its eventual

finding that the consent provision, as applied in this case, violated equal protection

guarantees: “[T]his is a felony, the Minor would be eligible for supervision if he were

in the adult system.” After the court found the consent provision unconstitutional as

violative of “separation of power,” “equal protection,” and “due process arbitrarily

enforced,” the court resumed questioning the assistant State’s Attorneys along the lines

previously suggested, and eventually invited them to “make a record of what [their]

discussion was” in this case. The following colloquy ensued:

“MR. KELLEY [Assistant State’s Attorney]: Well, Judge, that’s a policy

question, and as far as what we go in to making our office and the basis of that,

we’re not going to put that on the record.

THE COURT: Okay.

MR. KELLEY: Respectfully.

THE COURT: Oh, respectfully understood. But understand I am still

finding the law to be unconstitutional based on the reasons that I’ve already

said.

MR. KELLEY: Okay.”

¶ 24 Having found the consent provision unconstitutional, the court disregarded the

State’s objection to supervision, stating it would “sentence the Minor to a period of

eighteen months of supervision” with various attendant conditions.

¶ 25 On May 15, 2012, the cause again came before the court for a hearing on the State’s

motion to reconsider. In that motion, the State challenged the court’s ruling that the

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consent provision of section 5-615 is unconstitutional, and asked the court “to vacate

its order granting a continuance under supervision, and in its stead, enter a finding of

guilt, adjudicate Minor-Respondent a ward of the court, and sentence him to 18 months

of felony probation, the agreed upon recommendation by the Minor-Respondent and

the People at the admission and plea of guilty.” (Emphasis added.) At the outset, the

court acknowledged the lengthy citation and discussion of case law in the motion, and

ascertained that the State intended to “stand on what’s written,” and the respondent’s

counsel would “stand on the argument *** made previously.” 1

¶ 26 The court then began questioning of assistant State’s Attorney David Kelley,

attempting to elicit information regarding the internal review, evaluation, and charging

policies of the Cook County State’s Attorney’s Office, focusing on the facts of this

particular case: “[H]ave you ever approved a felony charge of aggravated battery in the

Felony Division where it involved this type of incident where it was a bump, a shoulder

bump to a police officer?” Mr. Kelley responded: “Judge, I’m sure I have. I can’t

remember the specifics, but yes. I approved many charges dealing with contact with the

police that resulted in an aggravated battery.” In a clear attempt to impugn the State’s

charging decision, and the viability of the charge to which the respondent pled after all

others had been nullified pursuant to the parties’ plea agreement, the judge then

brought his prior, personal experience as a police officer to bear upon disposition of the

case, opining that he had suffered various injuries as a police officer and “[n]one of

those were approved by Felony Assistant State’s Attorneys in Cook County.” The court

continued: “In my 12-plus years as a Chicago Police Officer, I cannot remember one

case being approved by the Assistant State’s Attorney of Cook County’s Office of a

felony involving contact of [an] insulting or provoking nature.”

¶ 27 Mr. Kelley advised the court: “I prosecuted personally cases where officers were

spit on and charged with aggravated battery as far as being the victim.”

¶ 28 The judge again related his personal experience as a police officer: “Well,

unfortunately, I also was spat on, or spit on, and none of my cases went to *** 26th &

California. I don’t know. I think that’s distinguishable from a bumping—spitting on is

quite provoking, and I would distinguish that from this case.” The judge then, while

attempting to elevate “spitting” above “bumping” in the hierarchy of “insulting” or

1

The record does not indicate that respondent’s counsel ever made an “argument”—oral or

written—that the consent provision of the statute was unconstitutional. The circuit judge raised the

matter sua sponte and then ruled the statute unconstitutional without any discernible input from

respondent’s counsel.

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“provoking” conduct, acknowledged that he had found that the consent provision

violated principles of equal protection while under the misapprehension that an adult

defendant could receive supervision in a felony case under the Criminal Code:

“I’ll be honest with you. In looking at—I’ve learned something. And

you’ve helped me learn, Mr. Kelley, being here in a number of years and a

number of times in court with the law, and I really thought in felony adult court

that the judges could give a supervision on felony cases also without approval.

Clearly, that is not the case.

And so I appreciate Ms. Bruzan bringing it to my attention. But my

argument as to this particular case is one that I think still stands and that based

on my 40-plus years in law enforcement, twelve on Chicago, twelve in the

county, and fifteen years—does that add up to 42? Close to 40? It’s over 40. As

long as it’s over 40. Me not ever having come in contact with a felony

aggravated battery for incidental—not incidental.

This was not incidental. This was direct contact, intentional direct contact

of an insulting or provoking nature. I don’t ever remember a call—a case like

that.

Now, spitting, I am absolutely distinguishing, and I don’t know—had this

been a spitting case, Ms. Nolfi, I don’t know that I would have given him

because just the nature of that. I think it’s so insulting that I am not sure that I

would have agreed to the supervision in this case.”

¶ 29 The court went on to yet again question whether the conduct supporting the offense

to which the respondent pled should have been charged as a felony. In the course of that

discussion, the court did not mention the controlled substance charge or the resisting

charges that were, respectively, nol-prossed, and stricken on leave to reinstate, as part

of the parties’ plea agreement.

¶ 30 Thereafter, the court, at length, discussed cases cited by the State in its motion to

reconsider, among them this court’s decisions in In re T.W. and Stralka. With respect

thereto, the court appeared to acknowledge, and then disregard, the impediment that

stare decisis posed to its ruling:

“THE COURT: Stare decisis. That a Court has to follow the rulings that a

previous Appellate or Supreme Court—a supervisory Court, has already ruled

on. But I tell you three judges [referencing those specially concurring in

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Stralka] have opened invitation to trial judges across the State of Illinois to

review this matter.”

¶ 31 The judge observed that the “better way” to fix what he had long believed to be a

problematic statute was to go through the legislature, a course he had pursued during

his tenure as a judge:

“I’ve waited three years and have done numerous efforts in trying to contact

the Legislative Branch—what little contacts I have in the Legislative Branch, to

see if something couldn’t be effected. Part of the problem I ran into was former

individuals who had been in the State’s Attorney’s Office that were in the

legislature or individuals that I know professionally, half of them appearing to

be soft on crime. And taking the State’s Attorneys out of the system, out of the

program, might make them look weak on crime, and they were cautious in

proceeding on that. And that’s something I won’t share—the names of the

individuals that I talked to, but that seemed to be consistent.”

¶ 32 The judge admitted, given his failure to effect the change he desired through his

contacts in the legislative branch, he was “aggressively” looking for test cases in his

judicial capacity:

“Now, after three years, I finally started to aggressively look for cases that I

believe were, for a lack of a better term, supervision worthy. And in my mind,

this case, with [the respondent], is one of those cases.”

¶ 33 In what could be aptly described as a running summary, the court acknowledged its

erroneous belief, at the time of its original ruling, that a criminal defendant charged

with a felony in criminal court could receive supervision. Nonetheless, the court cited

“remaining reasons” for its ruling, among them that the judge had not, in his “42 years”

seen “aggravated battery to a police officer involving insulting or provoking nature”

prosecuted, and Mr. Kelley had not provided “any information” to justify this action to

the court. The judge reiterated that he had been injured when he was a police officer

and the cases “all wound up on the misdemeanor call.” The court again voiced as a

consideration in its ruling the fact that the State had not provided, and declined to

provide, any guidelines to evince the standards governing charging and settlement

determinations:

“THE COURT: But you wouldn’t discuss on the record the reasoning

behind that process?

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MR. KELLEY: Judge, respectfully, we will not go into our policy regarding

charging.”

In the end, after further inquiry along these lines, the court denied the State’s motion to

reconsider.

¶ 34 The State appealed to this court from the circuit court’s ruling that the consent

provision is unconstitutional, and the court’s order of supervision, which was

necessarily predicated upon that ruling. The State asks this court to: “(1) reverse the

trial court’s judgment declaring Section 5-615(1)(b) unconstitutional, (2) vacate the

order of a continuance under supervision and (3) remand the case to the trial court for

further proceedings in conformance with 705 ILCS 405/5-705 & 710 (2012) and the

negotiated plea agreement between the parties.”

¶ 35 ANALYSIS

¶ 36 Post-briefing Motions

¶ 37 As a preliminary matter, we address the parties’ post-briefing motions, which were

taken with the case: the respondent’s motion to withdraw portions of his argument and

strike portions of the State’s reply brief and appendix; the State’s response and motion

to supplement.

¶ 38 In his brief before this court, the respondent suggested that this case is moot (1) “in

light of amendments to the juvenile supervision statute *** which removes the State’s

ability to veto a trial court’s decision to impose supervision,” and (2) the expiration of

the respondent’s original term of supervision. In its reply brief, the State responded that

the case is not moot insofar as (1) “the amendments to Section 5-615 did not eliminate

the State’s Attorney’s ‘approval provision’ in the pre-finding stage,” and (2)

respondent’s original term of supervision has not expired insofar as proceedings on

petitions for violation of supervision have, by agreement, tolled the period of

supervision during the pendency of this appeal, “thereby defeating respondent’s claim

that this appeal is moot due to the expiration of his ‘original term’ of supervision.”

(Emphasis in original.) With respect to the former argument, the State additionally

asserts: “Although the 2014 amended version contains no ‘approval provision’ once a

finding of guilt has been entered, a trial court is required to make certain specified

findings in order to continue a case under supervision in a post-finding stage.” In

support of its second contention, the State has appended to its reply brief, in

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Appendices A and B respectively, copies of two petitions for supplemental relief that

were filed in the circuit court: one alleging that the respondent violated the terms of his

supervision by failing to attend school as required and by failing to complete

court-ordered community service; the other alleging the commission of additional

criminal offenses, specifically, resisting a peace officer, battery and criminal trespass.

Also in Appendix B, the State includes a copy of a separate petition for adjudication of

wardship based upon those same offenses.

¶ 39 Respondent’s motion to strike concedes the misrepresentation in his brief

concerning the minor’s status, and makes clear: “Appellee has no objection to the State

properly supplementing the record on appeal with records indicating that Derrico is

still on supervision.” Given respondent’s acknowledged error, he requests that the

pertinent portion of his brief “be withdrawn and *** not be considered.” He specifies,

however, that he “does not concede the remaining mootness argument based on the

change in the statute itself and this argument is not withdrawn.”

¶ 40 In its response to the respondent’s motion, the State submits that some documents

appended to its reply brief are relevant to rebut the respondent’s assertion that his

supervision has terminated, while others are pertinent to any argument that this case is

moot because the minor would ultimately receive supervision after a finding of guilt

pursuant to the provisions added by amendment to section 5-615.

¶ 41 We observe that the allegation in the State’s reply brief, concerning an agreement

to continue the violation proceedings until the resolution of this appeal, is

uncontradicted by the respondent in his motion to strike. There appears to be no

disagreement that documents evincing the basis for tolling of the current period of

supervision are relevant for that purpose and thus, to that extent, are properly before

this court. We consider them for that limited purpose. Beyond that, the allegations

therein are just that—unproven allegations.

¶ 42 We next consider respondent’s contention that his mother’s criminal records are

irrelevant, were improperly appended to the State’s reply brief in Appendix C, and

should be stricken. The avowed basis for appending the mother’s criminal records to

the State’s reply brief is the assertion that the respondent, in his brief, implied that the

assistant State’s Attorney, in proceedings below, misrepresented the probationary

status of the respondent’s mother. The State’s assertion occurred on April 5, 2012,

when the assistant State’s Attorney—in response to the respondent’s claim (originating

with his mother) that probation for the respondent might result in the family’s

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eviction—stated that the respondent’s mother was herself “currently” on probation. In

his brief, in an apparent attempt to show that the assistant State’s Attorney had

misrepresented the mother’s probationary status, counsel for respondent states: “The

Social Investigation ultimately prepared by the probation department established that

the Mother had ‘previously’ been on probation and did not indicate that either she, or

any member of the household, was currently on probation.” (Emphases in original.)

The respondent also argues that the State’s misrepresentation “illustrates the

heightened adversarial role of the State” and “places context around the trial court’s

decision to allow for supervision for Derrico—to both give the first time adjudicated

minor a second chance and not to displace nine people from their home.”

¶ 43 The criminal records of the respondent’s mother, which the State has appended to

its reply brief in Appendix C, indicate that her probation had just been terminated on

March 20, 2012, days before the assistant State’s Attorney made the statement

regarding her probationary status. It does not appear that any misrepresentation was

intentional. In fact, without the criminal record the State has appended to its brief,

respondent cannot even show that there was an inaccuracy. That is so because the

social investigation report—indicating that the mother was “previously” on

probation—post-dated the assistant State’s Attorney’s statement that the mother was

“currently” on probation. Therefore, the mother could have been on probation when the

assistant State’s Attorney’s statement was made and “previously” on probation by the

time the social investigation report was filed.

¶ 44 In any event, the mother’s probationary status is only relevant because of the

specter of eviction raised by the respondent in the circuit court—eviction which had

apparently not taken place while the mother was on probation. We note that the

respondent’s mother was reported to have stated, when interviewed by the probation

officer for the social investigation report, that she had resided in “one place” for 30

years. The social investigation also recites: “According to background information the

mother was previously on probation for Possession of a Controlled Substance.” No one

in the circuit court took issue with any of the information in the report.

¶ 45 The circuit court did not mention any of this—or anything else from the social

investigation report for that matter—in rendering its ruling. More to the point, because

it is what the State may have considered, overlooked or ignored when it objected to

supervision that is relevant, the mother’s precise probationary status as of the April 5

proceeding is not, in our opinion, of determinative significance, since the assistant

State’s Attorney’s remark indicates that she was obviously aware of the mother’s

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recent probationary status, and the fact that she had not been evicted as a result thereof.

To the extent that respondent has made this an issue, we will consider that part of the

mother’s appended criminal record that indicates the mother’s probationary status had

just terminated on March 20, 2012, days before the assistant State’s Attorney made the

statement in question. The remaining portions of her criminal records will not be

considered.

¶ 46 The State’s motion to supplement the records at issue will be granted only within

the limited parameters of the foregoing discussion.

¶ 47 Mootness

¶ 48 What remains of respondent’s mootness argument is the contention that the recent

amendment of section 5-615 renders the consent provision irrelevant because the

circuit court can now, ultimately, enter an order for continuance under supervision with

or without the State’s consent. The State notes that “the amendment to Section 5-615

did not eliminate the State’s Attorney’s ‘approval provision’ in the pre-finding stage,”

and, in any event, the State suggests that the respondent in this case would not be

granted supervision pursuant to the post-finding provisions of the amended statute

because of the required findings therein, including, inter alia, that “the minor is not

likely to commit further crimes.” (Underscore omitted.) Pub. Act 98-62 (eff. Jan. 1,

2014) (amending 705 ILCS 405/5-615(1)(b)(i) (West 2012)).

¶ 49 In this respect, we reiterate that the allegations of the recent petitions filed by the

State are only allegations. So far as we know—unlike the respondent’s drug

case—there has not even been evidence adduced which would result in a finding of

probable cause. However, we reject the argument that the amendment renders this

appeal moot.

¶ 50 First, the legislature has seen fit to retain the pre-finding consent provision in the

amended statute, such that the State’s Attorney will still have the right to object to the

entry of an order of supervision prior to a finding of delinquency. In this respect, as

noted hereafter in our discussion, the legislature, in other articles of the Juvenile Court

Act, has accorded the State’s Attorney similar authority, thus underscoring the

importance the legislature has placed upon the State’s Attorney’s ability to veto

supervision and insist upon findings. See 705 ILCS 405/2-20(1), (2) (West 2012)

(applicable to proceedings involving abused, neglected or dependent minors); 705

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ILCS 405/3-21(1), (2) (West 2012) (pertaining to minors in need of authoritative

intervention). The legislature obviously did not see the consent provision as

superfluous, or a finding of delinquency as inconsequential in this regard, otherwise the

legislature would not have retained the consent provision. Retention of the provision in

the amended version of the statute thus militates against a finding that the issue before

us is moot.

¶ 51 Moreover, after a finding of delinquency, the court would have to consider the

respondent’s circumstances and make the requisite statutory findings before it could

enter an order continuing the case under supervision, all of which is speculative under

these circumstances. Specific findings are not mentioned in section 5-615(1)(a) of the

statute as amended, which will, in many cases involve negotiated dispositions. In this

case, there is also the matter of accounting for the charges that were either nol-prossed

or stricken on leave to reinstate pursuant to the parties’ plea agreement, which the

circuit court cannot simply disregard.

¶ 52 For these reasons, we conclude that this appeal is not moot.

¶ 53 Constitutionality—General Principles

¶ 54 We begin our constitutional analysis with general principles. As this court has

observed, all statutes are presumed constitutional and the party challenging a statute’s

validity bears the burden of demonstrating a clear constitutional violation. In re

Lakisha M., 227 Ill. 2d 259, 263 (2008). A court must construe a statute so as to affirm

its constitutionality, if reasonably possible. Lakisha M., 227 Ill. 2d at 263. Our review

of a statute’s constitutionality is de novo. Lakisha M., 227 Ill. 2d at 263.

¶ 55 With respect to controlling precedent, this court observed in Iseberg v. Gross, 227

Ill. 2d 78, 94-95 (2007) (quoting Chicago Bar Ass’n v. Illinois State Board of Elections,

161 Ill. 2d 502, 510 (1994)):

“ ‘The doctrine of stare decisis is the means by which courts ensure that the law

will not merely change erratically, but will develop in a principled and

intelligible fashion. Stare decisis permits society to presume that fundamental

principles are established in the law rather than in the proclivities of

individuals. The doctrine thereby contributes to the integrity of our

constitutional system of government both in appearance and in fact. Stare

decisis is not an inexorable command. However, a court will detour from the

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straight path of stare decisis only for articulable reasons, and only when the

court must bring its decisions into agreement with experience and newly

ascertained facts.’ ”

“We may not depart from stare decisis without special justification.” Iseberg, 227 Ill.

2d at 101.

¶ 56 The trial court in this case found that the statutory authority given to the State’s

Attorney under section 5-615, to object to the pre-finding granting of a continuance

under supervision, violates separation of powers, equal protection, and due process

guarantees, and that the statute is unconstitutional “both on its face and as to this

specific case.”

¶ 57 In order to successfully mount a facial challenge to a statute, the challenger must

establish that no set of circumstances exists under which the statute would be valid.

United States v. Salerno, 481 U.S. 739, 745 (1987). “Embedded in the traditional rules

governing constitutional adjudication is the principle that a person to whom a statute

may constitutionally be applied will not be heard to challenge that statute on the ground

that it may conceivably be applied unconstitutionally to others, in other situations not

before the Court.” Broadrick v. Oklahoma, 413 U.S. 601, 610 (1973). In other words, if

a statute is constitutionally applied as to the challenger, his facial challenge necessarily

fails.

¶ 58 “Due Process Arbitrarily Enforced”

¶ 59 With these principles in mind, we first address the circuit court’s finding that the

consent provision of sections 5-615(1) and 5-615(2) (705 ILCS 405/5-615(1), (2)

(West 2012) (now amended by Pub. Act 98-62 (eff. Jan. 1, 2014))) is unconstitutional

insofar as the court believed it was arbitrarily enforced in this case. In an attempt to

support the court’s “argument” that the statute is unconstitutional, and discredit the

State’s decision to object to a continuance under supervision prior to a finding of guilt,

the circuit court repeatedly pressed the presiding assistant State’s Attorneys to disclose

their training, years of experience as practicing attorneys—which the judge compared,

unfavorably, with his own 40-plus years of law enforcement experience—and the

guidelines they followed in reaching their decision. The court apparently gave little or

no consideration to the fact that multiple charges against the respondent had fallen

away as part of what appears to have been a fully negotiated plea agreement; nor did

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the court address to any significant degree matters relevant to the State’s decision, such

as the circumstances of the offense, the respondent’s prior conduct, or his family

situation.

¶ 60 Prior to enumerating the myriad facts and factors that justify the State’s decision,

we note, in passing, that the circuit court’s extensive questioning of the assistant State’s

Attorneys about matters not related to the facts of this case was inappropriate. Even the

judge, at one point, recognized that he might be violating “separation of powers” by his

intrusive questioning.

¶ 61 In People v. Stewart, 121 Ill. 2d 93, 109 (1988), this court addressed the contention

that Illinois’s death penalty statute was unconstitutional because it led to “arbitrary and

capricious application of the death penalty insofar as it allegedly delegate[d] to

prosecutors, without sufficient guidelines, the discretion to determine in which cases

the death penalty [would] be sought.” In Stewart, this court rejected that contention,

and in so doing, quoted extensively, and approvingly, from the Supreme Court’s

opinion in McCleskey v. Kemp, 481 U.S. 279 (1987), wherein the Supreme Court

recognized the propriety of allowing prosecutors to exercise discretion in seeking the

death penalty. See Stewart, 121 Ill. 2d at 111. Among the statements adopted by this

court were the following: “ ‘[T]he policy considerations behind a prosecutor’s

traditionally “wide discretion” suggest the impropriety of our requiring prosecutors to

defend their decisions to seek death penalties ***.’ ‘[T]he capacity of prosecutorial

discretion, to provide individualized justice is “firmly entrenched in American law.” ’ ”

Stewart, 121 Ill. 2d at 111 (quoting McCleskey, 481 U.S. at 296, 311-12).

¶ 62 In Stewart, this court referenced its earlier decision in People ex rel. Carey v.

Cousins, 77 Ill. 2d 531 (1979), where this court had previously addressed, and rejected,

arguments that section 9-1(d) of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38,

¶ 9-1(d)) violated due process guarantees and the separation of powers provision of the

Illinois Constitution. With respect to the former contention, this court rejected the

“claim that the power of the State’s Attorney to determine whether or not a sentencing

hearing shall be held is left to his ‘unbridled discretion,’ and that section 9-1(d) thus

violates due process,” observing that “the State’s Attorney has always enjoyed a wide

discretion in both the initiation and the management of criminal litigation.” Cousins, 77

Ill. 2d at 539. Accord People v. Williams, 147 Ill. 2d 173, 265 (1991).

¶ 63 Collectively, these cases stand for the proposition that courts may not require

prosecutors to defend their decisions to seek death penalties—the ultimate punishment.

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If that be the case—and the cited authorities so hold—how can we say that the State can

be required by a court to justify its discretionary decision to object to supervision in a

juvenile case prior to a finding of guilt? We cannot.

¶ 64 Of course, the assistant State’s Attorneys could have easily justified their decision

had they chosen to do so. The facts of the two cases in which respondent was charged

would alone have sufficed. The State in fact more than once pointed out that the

respondent had picked up two felony charges in a short time. Beyond that, however, the

facts—proven sufficiently to support the issuance of a warrant in one case (the drug

case) and to support a guilty plea in the other—establish that the respondent was in

need of a more serious deterrent than mere supervision would provide.

¶ 65 The evidence proffered in the drug case indicated that respondent was attempting to

sell crack cocaine on the street. We note that the State only charged him with

possession, though there appears to be no reason why it could not have charged

possession with intent to deliver. Further, we again point out that the State, at that

juncture, did not seem opposed to the idea of deferred prosecution under appropriate

circumstances.

¶ 66 Then, in less than a month, having already been taken into custody for attempting to

sell crack cocaine, and with a felony drug charge pending against him, respondent

committed the offense to which he ultimately pled guilty. In that regard, the respondent

stipulated to the following facts. On the date pertinent to the charge, Officer Lindahl

and other officers were dispatched to a disturbance on the street where they

encountered “a large number of people,” among them, the respondent and his brother.

While Officer Lindahl was assisting in the arrest of the respondent’s brother, the

respondent lowered his shoulder and charged into Officer Lindahl, attempting to knock

him to the ground and in doing so, hit Officer Lindahl about the body. Then, while the

officers were attempting to arrest the respondent for aggravated battery, the respondent

began swinging his hands and arms and failed to follow verbal direction to put his

hands behind his back. He stiffened his arms and pulled away, refusing to be

handcuffed. It took a number of officers to properly handcuff him.

¶ 67 We reiterate: this took place at a time when respondent already had a felony drug

charge pending against him, a circumstance that did not deter him from engaging in a

physical altercation with the officers. While the circuit court repeatedly belittled the

significance of this conduct, and engaged in nuanced attempts to distinguish it from

what the court considered the more serious act of “spitting”—an act, in the court’s

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view, that would not have warranted supervision—we see the respondent’s conduct in

a different light. It seems to us that the officers were in a potentially volatile situation.

They were on the street, at night, attempting to make an arrest, amidst a large group of

people. A physical altercation involving an additional person at the scene could only

have heightened the danger they faced. The fact that no officer suffered significant

injury does not diminish the potential for injury caused by the respondent’s conduct.

¶ 68 On these facts alone, without considering anything else, we find that the State’s

pre-finding objection to supervision was not arbitrarily exercised in this case.

However, there is more.

¶ 69 It is clear that this was a negotiated guilty plea. Consideration was shown the

respondent in the form of the State’s abandonment of what were characterized as

“provable” charges. In return, the respondent pled guilty to a single charge, with a

“recommended” disposition of 18 months’ probation. The State twice advised the court

that the disposition represented the recommendation of both “the State and the Public

Defender.” Ms. Nolfi, on behalf of the respondent, in fact conceded: “The Minor did

agree to eighteen months of felony probation.” Adding the considerations shown in the

negotiated plea to the factual milieu only strengthens our finding that the State acted

reasonably when it insisted upon a disposition of probation. However, there is still

more.

¶ 70 Clearly, when the State negotiated the plea agreement and the parties presented it to

the court, attorneys for the State were aware of at least some of the facts which were

shortly thereafter reported in the social investigation report. Obviously, Ms. Bruzan

knew that the respondent’s mother was or recently had been on probation. She was also

aware that his brother had “some history” with the judge, and that his brother had been

arrested as part of the very incident that resulted in the charge to which the respondent

pled guilty.

¶ 71 The social investigation report discloses information on, and attitudes of, family

members that suggest a lenient approach in dealing with the respondent was not in his

best interest or that of the public. In the social investigation report, respondent’s mother

was reported to have stated that she suffered from congestive heart failure and

diabetes—a fact of which the parties and court were advised when the mother was

repeatedly absent during early proceedings in this case. Thus, because of health

problems, her ability to supervise the respondent was most likely limited. Moreover,

the respondent’s mother was seemingly less than candid when she was interviewed by

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the probation officer, a troubling circumstance which calls into question her ability

and/or willingness to address the respondent’s problems going forward. For example,

the respondent’s mother stated that no one in the family “has been treated for drug or

alcohol abuse or mental illness.” “She also stated that no one [in the family] has been

arrested, on probation or incarcerated.” However, “[a]ccording to background

information [obtained by the probation officer] the mother was previously on probation

for Possession of a Controlled Substance.” Of course, we have already referenced the

arrests of her sons. According to the probation officer, the “mother stated that they have

lived in the one place for the past 30 years. She described the neighborhood as being

okay and possibly having a medium concentration of gang and drug involvement.”

“The mother stated that DCFS has never been involved” with her family. However, the

next sentence of the social investigation report states: “According to background

information DCFS was involved in the past.” The mother’s comments evince either an

inability or unwillingness to face facts. That does not bode well with respect to her

supervision of the respondent or her cooperation in his rehabilitation.

¶ 72 Then there is the respondent’s failure to acknowledge the seriousness of his

situation or the personal issues with which he must deal. Aside from his commission of

back-to-back offenses, a vignette of the former—failure to appreciate the seriousness

of his situation—can be seen in the disinterest shown by the respondent when he

yawned in the face of the judge, who was in the process of intimating to the respondent

and his counsel—before the judge even saw the social investigation report—the

judge’s inclination to put the respondent on supervision. Evidence of the respondent’s

failure to recognize his personal problems can be seen in his statement to the probation

officer that he handles frustration well, and his inconsistent admission elsewhere “that

he has punch[ed] holes in the walls in the past when he gets upset.”

¶ 73 Taking all this into account, it is quite frankly inconceivable that anyone could find

that the State’s exercise of its discretion in this case was arbitrary, resulting in a due

process violation. Any finding to the contrary minimizes the seriousness of

respondent’s conduct, completely ignores the consideration shown by the State’s

decision to nol-pros some charges and strike others with leave to reinstate, and is, in

sum, inconsistent with an impartial assessment of the circumstances. One of the

enumerated purposes of the Juvenile Court Act is to “hold each juvenile offender

directly accountable for his or her acts.” 705 ILCS 405/5-101(1)(b) (West 2012). The

respondent obviously has not appreciated the seriousness of his conduct. In this

respect, the disposition of probation—to which the parties agreed—addressed that

concern. The disposition substituted by the court—in apparent pursuit of an objective

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broader than the interests of this minor or the public—did not. A continuance under

supervision was clearly not in this respondent’s interest or that of the public.

¶ 74 Separation of Powers

¶ 75 The separation of powers clause of the Illinois Constitution provides: “The

legislative, executive and judicial branches are separate. No branch shall exercise

powers properly belonging to another.” Ill. Const. 1970, art. II, § 1. As we observed in

People v. Hammond, 2011 IL 110044, ¶ 51, our constitution does not attempt to define

legislative, executive and judicial power, as it is neither practicable nor possible to

enumerate the myriad powers of government and to declare that a given power belongs

exclusively to one branch for all time. In both theory and practice, the purpose of the

provision is to ensure that the whole power of two or more branches of government

shall not reside in the same hands. Hammond, 2011 IL 110044, ¶ 51; People v. Walker,

119 Ill. 2d 465, 473 (1988).

¶ 76 The separation of powers provision was not designed to achieve a complete divorce

among the three branches of our system of government; nor does it prescribe a division

of governmental powers into rigid, mutually exclusive compartments. Hammond, 2011

IL 110044, ¶ 52. “ ‘By necessity, the branches of government do not operate in

isolation, and between them there are some shared or overlapping powers.’ ”

Hammond, 2011 IL 110044, ¶ 52 (quoting People v. Felella, 131 Ill. 2d 525, 538

(1989)). Inevitably, there will be areas in which the separate spheres of government

overlap, and in which certain functions are shared. County of Kane v. Carlson, 116 Ill.

2d 186, 208 (1987). Put simply, the three branches of government are “ ‘parts of a

single operating government, and *** the separation of powers clause was not designed

to achieve a complete divorce between them.’ ” County of Kane, 116 Ill. 2d at 208

(quoting People v. Reiner, 6 Ill. 2d 337, 342 (1955)). The determination of when, and

under what circumstances, a violation of the separation of powers doctrine has

occurred remains with the judiciary. Hammond, 2011 IL 110044, ¶ 52; Best v. Taylor

Machine Works, 179 Ill. 2d 367, 411 (1997).

¶ 77 To begin our discussion of this issue, we return to this court’s decision in Cousins.

As noted in the previous section of this opinion, this court in Cousins addressed and

rejected both due process and separation of powers arguments. In the latter respect, the

defendant’s argument focused on the fact that no death sentence could be imposed

without a sentencing proceeding, and no sentencing proceeding could take place unless

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it was requested by the prosecutor. If the prosecutor failed to request a sentencing

hearing, he or she thus precluded the imposition of a death sentence, and in that sense,

it was argued, the prosecutor participated in the sentencing process and thus usurped a

judicial function. In rejecting that position, this court cited three cases—People v.

Bombacino, 51 Ill. 2d 17 (1972); People v. Handley, 51 Ill. 2d 229 (1972); People v.

Sprinkle, 56 Ill. 2d 257 (1974)—as “embod[ying] a view of the separation of powers

provision of the Constitution opposed to that urged here.” Cousins, 77 Ill. 2d at 536.

¶ 78 Bombacino involved a provision of the Juvenile Court Act (Ill. Rev. Stat. 1967, ch.

37, ¶ 702-7(3)) that authorized the State’s Attorney to transfer a delinquency

proceeding involving a juvenile to a criminal court and thus permit prosecution of the

juvenile as an adult under the provisions of the Criminal Code. Defendant argued that

due process required the juvenile court judge to hold a hearing on the removal petition.

This court rejected that contention. The Cousins court noted, “[w]hile the constitutional

provision immediately involved in Bombacino was due process rather than separation

of powers, the decision necessarily presupposes that the determination made by the

prosecutor is not to be regarded as a judicial act.” Cousins, 77 Ill. 2d at 537.

¶ 79 Handley also involved the removal of a juvenile from juvenile court for trial in

criminal court, in that case on a charge of murder. Among other arguments was the

contention that “vesting discretion in the State’s Attorney to decide whether or not to

remove a juvenile from the jurisdiction of the juvenile court without providing any

standards to limit his discretion deprives juvenile defendants of due process and equal

protection under the law.” (Emphasis added.) Handley, 51 Ill. 2d at 232. This court

rejected that contention, stating: “Historically, the office of the State’s Attorney has

involved the exercise of a large measure of discretion in the many areas in which

State’s Attorneys must act in the performance of their duties in the administration of

justice. We do not find it constitutionally objectionable that the legislature has seen fit

to grant discretion to the State’s Attorney in removal matters under the Juvenile Court

Act, particularly in view of the fact that the purposes of the Act *** can be presumed to

be considered by State’s Attorneys in making determinations in these matters.”

Handley, 51 Ill. 2d at 233.

¶ 80 Sprinkle was cited in Cousins as expressing a similar view. This court

acknowledged that the legislature had subsequently amended the statute to reduce the

degree of prosecutorial discretion in removal cases; however, this court found “[t]hat

development does not, of course, disturb the conclusion reached in Sprinkle and its

precursors with respect to the separation of powers issue.” Cousins, 77 Ill. 2d at 539.

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¶ 81 Thus, in Cousins and the cases cited therein this court found that a statute which

allowed the prosecutor to decide when a juvenile would be subjected to prosecution as

an adult, and the substantial penalties attendant thereto, did not violate the separation of

powers provision of our constitution. Those cases sanctioned, as constitutional,

statutory provisions that gave prosecutors significant discretionary power to dictate the

range of penalties to which a juvenile would be subjected. Here, in contrast, barring an

agreement of the parties as to the suitability of a continuance under supervision, section

5-615, prior to amendment, merely allowed the prosecutor to object to supervision.

Moreover, as amended, the statute merely delays the point in the proceedings at which

the court may, under appropriate circumstances, order a continuance under

supervision. The procedural juncture to which the court’s authority to decide is now

delayed is the point at which the court normally gets to decide sentencing

matters—after a finding of guilt. The authority that the prosecutor retains under the

statute, as amended, pales by comparison to the authority that was granted to

prosecutors by the legislature, and approved as constitutional by this court, in Cousins

and cases discussed therein.

¶ 82 We note that the separation of powers finding in Cousins was justified, as well, by

this court’s opinion in People v. Phillips, 66 Ill. 2d 412, 415-16 (1977), a case

addressed by the parties herein on account of its inclusion in this court’s analysis in In

re T.W., a decision that rejected the very separation of powers argument respondent

now raises. As the Cousins court observed, in Phillips, this court “sustained a provision

of the Dangerous Drug Abuse Act [citation] which required the consent of a

defendant’s probation officer before the defendant could be allowed to avoid a pending

criminal proceeding charging the unlawful possession of a controlled substance.”

Cousins, 77 Ill. 2d at 539.

¶ 83 In Hammond, a unanimous decision, this court discussed the principle that the

legislature may “define[ ] and restrict[ ] the circumstances in which a State’s Attorney

may exercise his prosecutorial authority,” and cited Phillips, and the statute at issue

therein, as an “example of the application of this principle—theoretically

circumscribing the authority of both the circuit court and the State’s Attorney.”

(Emphasis in original.) Hammond, 2011 IL 110044, ¶ 57. In Hammond, this court

addressed its prior decision in Phillips:

“Acknowledging that the power to impose sentence is exclusively a function of

the judiciary (Phillips, 66 Ill. 2d at 415), this court noted that the situation at

hand concerned a defendant who had been charged with, but not convicted of, a

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crime. Since defendant had not been convicted of a crime at the pertinent time

for election of treatment, sentencing was not then at issue. Therefore, ‘the

authority granted to the probation officer to deny treatment under the Act to

persons charged with, but not convicted of, a criminal offense does not infringe

upon the court’s constitutional right to impose sentence.’ ” (Emphases in

original.) Hammond, 2011 IL 110044, ¶ 60 (quoting Phillips, 66 Ill. 2d at

415-16).

¶ 84 This court in Phillips, and again in Hammond, recognized that “conviction”—in

those discussions understood to mean a finding of guilt—marked a traditional

procedural boundary beyond which the judiciary was then authorized to exercise its

authority to sentence. This court has acknowledged that certain diversionary

dispositions authorized by the legislature, such as the drug treatment in Phillips, and

supervision prior to a finding of guilt in a delinquency proceeding (see In re T.W., 101

Ill. 2d at 441-42), fall on the other side of that boundary, representing pre-finding

dispositions in which the legislature may properly—and constitutionally—determine

that the executive branch should retain substantial control. See In re T.W., 101 Ill. 2d at

441-42 (“In both instances, the legislation gives the executive branch the power to

cause the proceedings to go forward within the traditional confines of the juvenile or

criminal justice systems.”); see also City of Urbana v. Andrew N.B., 211 Ill. 2d 456,

473-74, 498-99 (2004) (where the analyses of the majority and the dissent coalesced, if

nowhere else, upon the abstract principle that juvenile supervision under section 5-615

of the Act then extant—and necessarily section 5-615(1)(a) of the current version,

which retains consensual juvenile supervision as it then existed—may be entered,

without a finding of guilt, only upon the agreement of the State and the respondent).

¶ 85 Based upon the foregoing authorities and analysis, including the controlling

precedent represented by In re T.W., we hold that the consent provision of section

5-615 does not violate the separation of powers clause of our constitution.

¶ 86 Equal Protection

¶ 87 We now turn to the circuit court’s finding that the consent provision of section

5-615 violates equal protection guarantees.

¶ 88 In conducting an equal protection analysis, this court applies the same standards

under the United States Constitution and the Illinois Constitution. Wauconda Fire

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Protection District v. Stonewall Orchards, LLP, 214 Ill. 2d 417, 434 (2005). The equal

protection clause guarantees that similarly situated individuals will be treated in a

similar fashion, unless the government can demonstrate an appropriate reason to treat

them differently. People v. Whitfield, 228 Ill. 2d 502, 512 (2007). The equal protection

clause does not forbid the legislature from drawing proper distinctions in legislation

among different categories of people, but it does prohibit the government from doing

so on the basis of criteria wholly unrelated to the legislation’s purpose. Wauconda Fire

Protection District, 214 Ill. 2d at 434. Where fundamental rights are not at issue, this

court applies a rational basis scrutiny and considers whether the challenged

classification bears a rational relationship to a legitimate governmental purpose.

Whitfield, 228 Ill. 2d at 512.

¶ 89 Although the circuit court found that the consent provision of section 5-615

violated equal protection guarantees facially and as applied, the court provided no

rational for the former and, with respect to the latter, stated only: “[T]his is a felony, the

Minor would be eligible for supervision if he were in the adult system.” By the time of

the hearing on the State’s motion to reconsider, the court recognized its error, but stated

the error would not affect the court’s “argument in this particular case.” The court

offered no substitute reasoning to support the court’s “argument.”

¶ 90 In support of the court’s ruling, the respondent argues that “the State veto power

allowed in the juvenile supervision statute but not allowed in the adult supervision

statute violates the equal protection rights of juveniles.” That, the respondent contends,

is because the “adult supervision counterpart found in 730 ILCS 5/5-6-1(c)(d) (West

2010), in contrast to the juvenile supervision statute, does not require the assent of the

State’s Attorney nor does the adult statute allow the State to veto the decision of the

trial court to enter the disposition.” Counsel for respondent dismisses the State’s

observation that respondent is not similarly situated to an adult because an adult

charged with a felony would not be eligible for supervision as “miss[ing] the broader

point that under the adult system, there is no State veto power at all and [the

respondent] was eligible for supervision under 5-615.” He continues: “[I]t is not what

he was charged which made [sic] him ineligible for supervision but rather the State

veto power in 5-615.”

¶ 91 Respondent cannot simply ignore the facts of this case. He cannot disregard the

considerations he obtained in negotiations with the State, and he cannot otherwise,

figuratively, compare apples and oranges by picking and choosing the characteristics

that suit his purposes while ignoring the rest. Respondent cannot, as a threshold matter,

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establish that he is similarly situated in all relevant respects to those with whom he

would make comparison.

¶ 92 As our Supreme Court has noted, equal protection “does not forbid all

classifications” (Nordlinger v. Hahn, 505 U.S. 1, 10 (1992)), “[i]t simply keeps

governmental decisionmakers from treating differently persons who are in all relevant

respects alike.” (Emphasis added.) (Id.) Evidence of different treatment of unlike

groups does not support an equal protection claim. Fournier v. Sebelius, 718 F.3d

1110, 1124 (9th Cir. 2013).

¶ 93 Respondent would have us compare the provisions of the supervision statute in the

Juvenile Court Act with the supervision provisions applicable to adults in the Code of

Corrections, ignoring the individual, or group, characteristics of those subject to the

respective provisions, and the purposes of the comprehensive enactments in which they

are included. We note, in the latter respect, if individual and group characteristics and

circumstances do not matter, if uniformity were the only goal and the requisite to

satisfy guarantees of equal protection, then all juvenile offenders could be rendered

subject to the provisions of the Code of Corrections, and equal protection would be

satisfied. The legislature has not deemed that in the interests of juvenile offenders or

society; nor do we.

¶ 94 First and foremost, respondent cannot establish that he is similarly situated to an

adult who could take advantage of the provisions of the supervision statute in the Code

of Corrections because respondent was charged with and pled guilty to a felony, and no

similarly situated adult is eligible for supervision under that statute. Subsection (c) of

section 5-6-1 of the Code provides that a court may not “enter an order for supervision

of the defendant” if the defendant is “charged with” “a felony.” 730 ILCS 5/5-6-1(c)

(West 2010). While respondent is correct in his observation that the supervision statute

in the Code of Corrections does not give the State the right to object to the court’s entry

of an order of supervision, in order to make the case for an equal protection violation,

he has to be able to show he is similarly situated “in all relevant respects” to those who

could take advantage of the disposition provisions of that statute. He cannot.

¶ 95 For an individual like the respondent, the dispositional alternatives available under

the Juvenile Court Act are actually more favorable than those extended to a similarly

situated person under the Code of Corrections, in that the pertinent supervision

provisions of the Juvenile Court Act at least offer the possibility of supervision, with

the consent of all parties concerned, prior to a finding of guilt, and, with the recent

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amendments, the court can now order supervision after a finding of guilt, in appropriate

circumstances, without the consent of the State’s Attorney.

¶ 96 Because respondent was charged with a felony, the circuit court and the respondent

cannot establish the threshold requirement for an equal protection violation. However,

he fails to cross the threshold for another reason.

¶ 97 Respondent entered into a fully negotiated guilty plea. As part of that plea,

significant consideration was afforded the respondent in return for his plea of guilty,

consideration in the form, inter alia, of the State’s agreement not to pursue multiple

other charges originally lodged against him. Respondent voluntarily negotiated himself

into that more favorable position, and was apparently prepared to accept the

“recommended” disposition of probation as part of that comprehensive agreement,

before the court unilaterally changed that term, without giving any consideration

whatsoever to the rest of the parties’ bargain, and substituted a disposition that, under

the circumstances, was not allowed by statute. Having received the benefit of his

agreement with the State, and having passively allowed the court to give him more than

he bargained for, without giving up anything in the process, respondent now asks this

court to confirm the result of the circuit court’s advocacy on his behalf, claiming that,

had he been relegated to probation, as agreed, he would have been disadvantaged when

compared to some undefined individual who might, hypothetically, take advantage of

the provisions of the adult supervision statute. Not surprisingly, our research has not

disclosed any similar scenario, where a respondent-minor, or defendant, who entered

into a fully negotiated guilty plea, involving concessions by the State, and an agreed

sentence, then repudiated the sentence, while retaining the concessions, and claimed

that the sentence, which was inextricably tied to the concessions, constituted, or would

have constituted, an equal protection violation. This kind of bootstrapping appears to

be unprecedented.

¶ 98 We have found authority that, for purposes of equal protection analysis,

differentiates those who enter into a negotiated plea agreement from others who enter a

blind guilty plea. See People ex rel. Madigan v. Kinzer, 232 Ill. 2d 179, 186-87 (2009);

People v. Eckhardt, 127 Ill. 2d 146, 151-52 (1989). In Kinzer, this court noted that the

State’s offer of consideration for pleading guilty distinguishes a plea agreement from a

blind guilty plea, the former often entailing the dismissal of other charges and the

recommendation of a specific sentence. Kinzer, 232 Ill. 2d at 186; Eckhardt, 127 Ill. 2d

at 151-52. In Kinzer, this court found that those who enter in negotiated guilty pleas are

“not similarly situated” to those who enter blind guilty pleas. Kinzer, 232 Ill. 2d at 187.

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¶ 99 Respondent’s position ignores basic principles of fairness governing the

enforcement of plea agreements. In People v. Evans, 174 Ill. 2d 320, 327 (1996),

though the procedural context was different, this court pointed out the inequity where

the State, pursuant to a negotiated plea agreement, had dismissed other charges and

recommended a specific sentence, only to have defendants later seek modification of

the sentences to which they had earlier agreed “while holding the State to its part of the

bargain.” As an appellate panel has since observed, “this flies in the face of contract

law and constitutional concerns of fundamental fairness.” People v. Jones, 329 Ill.

App. 3d 470, 473 (2002) (citing Evans, 174 Ill. 2d at 327). More recently, this court has

reiterated that the enforceability of plea agreements is not a one-sided affair as “the

other half of the contractual equation is the benefit of the bargain accruing to the State.”

People v. Donelson, 2013 IL 113603, ¶ 19.

¶ 100 Considering these authorities, it seems to us that respondent cannot, for purposes of

equal protection analysis, liken his situation to that of an individual who pleads guilty,

unencumbered by agreements relating to his disposition, and who then stands before a

court seeking the application of the supervision provisions of the Code of Corrections.

A person in the respondent’s position would be someone who has obtained significant

concessions from the State in negotiations and who then repudiates the sentence of

probation, to which he agreed, while asking the court to give him supervision instead.

In this additional respect, the circuit court’s equal protection argument, and that of the

respondent, fails at the threshold level.

¶ 101 Moreover, respondent’s attempt to compare his circumstance, and the applicability

of the Juvenile Court Act, to persons facing sentencing under the provisions of the

Code of Corrections fails on another level. Because minors in delinquency proceedings

are generally “not subject to the severe deprivation of liberty of an adult sentence” they

are not similarly situated to adult offenders. In re Jonathon C.B., 2011 IL 107750,

¶¶ 118, 120. Indeed, though this court in In re Rodney H., 223 Ill. 2d 510, 518 (2006),

recognized that the legislature, in 1999, had “retooled” article V of the Juvenile Court

Act, we were quick to add:

“Even as the legislature recognized that the juvenile court system should

protect the public, it tempered that goal with the goal of developing delinquent

minors into productive adults, and gave the trial court options designed to reach

both goals. Article V may represent ‘a fundamental shift from the singular goal

of rehabilitation to include the overriding concerns of protecting the public and

holding juvenile offenders accountable for violations of the law,’ but

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proceedings under the Act still are not criminal in nature. See In re A.G., 195 Ill.

2d 313, 317 (2001). ‘Delinquency proceedings are *** protective in nature and

the purpose of the Act is to correct and rehabilitate, not to punish.’ In re W.C.,

167 Ill. 2d 307, 320 (1995); see also In re Beasley, 66 Ill. 2d 385, 390 (1977),

citing McKeiver v. Pennsylvania, 403 U.S. 528, 541, 29 L. Ed. 2d 647, 658, 91

S. Ct. 1976, 1984 (1971); In re Armour, 59 Ill. 2d 102, 104 (1974) (‘The first

purpose of [a juvenile court] statute is not to punish but to correct’). Indeed, ‘no

suggestion or taint of criminality attaches to any finding of delinquency by a

juvenile court.’ In re Dow, 75 Ill. App. 3d 1002, 1006 (1979), citing People ex

rel. Hanrahan v. Felt, 48 Ill. 2d 171, 174-75 (1971); accord People v. Brazee,

333 Ill. App. 3d 43, 48 (2002).” Rodney H., 223 Ill. 2d at 520.

We have a Juvenile Court Act, separate and apart from the provisions of the Criminal

Code and the Code of Corrections, because the legislature has recognized that juveniles

are not similarly situated to adults.

¶ 102 In People v. Taylor, 221 Ill. 2d 157, 167 (2006), this court recognized that

differences remain, even after the 1999 changes to article V of the Juvenile Court Act:

“The policy that seeks to hold juveniles accountable for their actions and to

protect the public does not negate the concept that rehabilitation remains a more

important consideration in the juvenile justice system than in the criminal

justice system and that there are still significant differences between the two,

indicating that ‘the ideal of separate treatment of children is still worth

pursuing.’ ” Taylor, 221 Ill. 2d at 170 (quoting in part from McKeiver v.

Pennsylvania, 403 U.S. 528, 546 n.6 (1971) (plurality op.).

¶ 103 Juvenile proceedings are fundamentally different from criminal proceedings

(McKeiver, 403 U.S. at 541-51; Taylor, 221 Ill. 2d at 171), a difference which extends

to the role of the State. We conclude our discussion with observations on that

role—observations that have a bearing upon all of the constitutional issues raised

herein, and address the suggestion by the respondent that what he describes as “the

heightened adversarial role that the State plays in juvenile court” should disqualify the

State’s Attorney from exercising a pre-finding veto of a continuance under supervision.

¶ 104 As this court made clear in Rodney H., a petition for adjudication of wardship is not

a direct action by the State to inflict punishment. Rodney H., 223 Ill. 2d at 520-21. We

assume, as this court did in Handley, that State’s Attorneys, in making determinations

in these matters, consider the purposes and objectives of the Juvenile Court Act

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(Handley, 51 Ill. 2d at 233), which are “ ‘protective in nature *** to correct and

rehabilitate, not to punish’ ” (Rodney H., 223 Ill. 2d at 520 (quoting In re W.C., 167 Ill.

2d 307, 320 (1995))). This court has recognized that the State, “as parens patriae,”

(People v. R.G., 131 Ill. 2d 328, 344 (1989)) has a compelling interest in protecting the

welfare of children, including “the lives of delinquent minors.” In re Presley, 47 Ill. 2d

50, 56 (1970). The legislature’s determination that the State should play that role in this

and other contexts of the Juvenile Court Act, and in fact exercise the very authority

here in question, can be seen in identical statutory provisions in other articles of the

Act.

¶ 105 Like section 5-615, article II of the Act, applicable to proceedings involving

abused, neglected or dependent minors (705 ILCS 405/2-20(1), (2) (West 2012)), and

article III of the Act, pertaining to minors in need of authoritative intervention (705

ILCS 405/3-21(1), (2) (West 2012)), provide that a circuit court may enter an order of

continuance under supervision before proceeding to a finding unless a State’s

Attorney, or one of the other parties listed in the statutes, objects, in which case the

court “shall *** proceed” to “findings and adjudication.”

¶ 106 These provisions, both of which are contained in articles pertaining to the welfare

of children, list the State’s Attorney among those who would undoubtedly be

concerned with the children’s best interests. Those statutes mirror the consent

provisions found in section 5-615 of the Act. Significantly, like section 5-615, they also

demonstrate a legislative recognition that findings have consequences, and that the

State, among other interested parties, should have the right to insist that juvenile

proceedings, of whatever nature, proceed to that point.

¶ 107 As this court has noted, it is the State’s Attorney’s duty to see that justice is done

not only to the public at large, but to the accused as well. People v. Williams, 147 Ill. 2d

173, 256 (1991). Having carefully considered the facts and circumstances of this case,

we find that the State exercised its authority under section 5-615 in accordance with

that duty.

¶ 108 For the reasons stated, we find the consent provision of section 5-615

constitutional. The circuit court erred in finding otherwise and in continuing the matter

under supervision pursuant to that finding. In that respect, we reverse the circuit court’s

judgment declaring section 5-615(1)(b) unconstitutional and vacate its order of a

continuance under supervision. Consistent with our foregoing analysis, this matter will

be returned to the circuit court in the pre-finding, procedural posture it occupied when

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the circuit court unilaterally modified the parties’ plea agreement, struck down the

statute, and entered an order continuing the case under supervision. The status of the

negotiated plea agreement presented by the parties for the court’s

consideration—which necessarily entails the question of whether all of the original

charges may be resurrected if said agreement is rejected—will be the initial matter

before the circuit court.

¶ 109 Reversed in part and vacated in part, and remanded with directions.

¶ 110 JUSTICE BURKE, dissenting:

¶ 111 I disagree with the majority’s conclusion that section 5-615(1)(b) of the Juvenile

Court Act (705 ILCS 405/5-615(1)(b) (West 2010)), does not violate the separation of

powers provision of the Illinois Constitution (Ill. Const. 1970, art. II, § 1), when

applied to the facts of this case. I therefore dissent.

¶ 112 I

¶ 113 The circuit court in the case at bar was presented with a negotiated plea agreement

between the minor respondent and the State in which the respondent agreed to plead

guilty to a charge of aggravated battery on a public way in exchange for a

recommended sentence of 18 months’ probation. See 705 ILCS 405/5-605(2)(a) (West

2010) (authorizing guilty pleas for minors). When presented with the plea agreement,

the court informed the parties that it was considering rejecting the State’s

recommended sentence of probation and ordering supervision, as set forth under

section 5-615 of the Juvenile Court Act (705 ILCS 405/5-615 (West 2010)). At the time

of the proceedings in the circuit court, section 5-615 provided, in relevant part:

Ҥ 5-615. Continuance under supervision.

(1) The court may enter an order of continuance under supervision for an

offense other than first degree murder, a Class X felony or a forcible felony (a)

upon an admission or stipulation by the appropriate respondent or minor

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respondent of the facts supporting the petition and before proceeding to

adjudication, or after hearing the evidence at the trial, and (b) in the absence of

objection made in open court by the minor, his or her parent, guardian, or legal

custodian, the minor’s attorney or the State’s Attorney.

(2) If the minor, his or her parent, guardian, or legal custodian, the minor’s

attorney or State’s Attorney objects in open court to any continuance and insists

upon proceeding to findings and adjudication, the court shall so proceed.” 705

ILCS 405/5-615 (West 2010).

¶ 114 After the circuit court broached the subject of supervision, the State noted that,

under section 5-615(1)(b), its approval was necessary before the court could enter an

order of supervision. The State indicated that it objected to supervision and would

stand by its recommendation of probation.

¶ 115 Thereafter, the circuit court conducted a plea hearing. The court admonished the

respondent that, by pleading guilty, he could receive anywhere between supervision

and a maximum of five years in jail. The court also admonished the respondent that it

was not bound by the sentencing recommendation made by the State. In addition, the

circuit court advised the respondent that, by pleading guilty, he was waiving certain

constitutional rights, including the right to a trial at which the State would be required

to prove him guilty beyond a reasonable doubt. The parties also stipulated to a factual

basis which established that the respondent, while on a public street, hit a police officer

with his shoulder, attempting to knock him to the ground.

¶ 116 At the conclusion of the plea hearing, the court found that the respondent had been

advised of and understood his rights, that the plea was voluntary, and that the factual

basis to which the respondent had stipulated was sufficient to sustain a conviction for

the offense of aggravated battery on a public way. The court stated that it accepted the

minor’s plea. The circuit court subsequently noted that, although it had accepted the

respondent’s guilty plea, it was withholding entering judgment adjudicating the

respondent a ward of the court. The court then continued the case for the preparation of

a social investigation report and further proceedings.

¶ 117 At a subsequent hearing, the court held the State’s Attorney consent provision in

section 5-615(1)(b) unconstitutional and entered an order of supervision over the

objection of the State. There were three grounds for the circuit court’s ruling regarding

section 5-615(1)(b). First, the circuit court concluded that the State’s Attorney consent

provision violated the separation of powers provision of the Illinois Constitution. The

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court concluded that it is “improper for the General Assembly to give veto power to the

State’s Attorney, who is in the Executive Branch, because sentencing is an inherent

power of the Judiciary, not the Executive Branch, and to me, that is a clear violation of

the separation of power doctrine.” Second, the circuit court concluded that section

5-615(1)(b) violated principles of equal protection because it did not permit a

“[j]uvenile judge to grant a sentence of supervision” without the consent of the State’s

Attorney while adult defendants who qualified for supervision could receive the

disposition even in the absence of the State’s Attorney’s consent. And, third, because

section 5-615(1)(b) did not contain any guidelines for the State’s Attorney to apply in

determining when supervision should be allowed, the court concluded that the statute

violated principles of due process.

¶ 118 Having found the State’s Attorney consent provision unconstitutional, the circuit

court stated that it was “sentenc[ing] the [respondent] to a period of eighteen months of

supervision.” The order of supervision entered by the circuit court required the

respondent, among other things, to attend counseling sessions as directed by his

probation officer, to maintain a C average in school, and to have no contact with gangs,

guns, or drugs. The court also ordered the respondent to submit a swab for DNA

indexing (see 730 ILCS 5/5-4-3 (West 2010)). The court reiterated that it had not

entered judgment adjudicating the respondent a ward of the court because “it’s a

supervision case.”

¶ 119 The circuit court subsequently denied a motion to reconsider filed by the State. The

State then appealed the circuit court’s finding of unconstitutionality directly to this

court. Ill. S. Ct. R. 603 (eff. Feb. 6, 2013); R. 660(a) (eff. Oct. 1, 2001).

¶ 120 II

¶ 121 The majority reverses the judgment of the circuit court, holding, in part, that the

State’s Attorney consent provision of section 5-615(1)(b) does not violate the

separation of powers provision when applied to the facts of this case. I disagree.

¶ 122 The circuit court accepted the respondent’s plea of guilty to the charge of

aggravated battery on a public way. Supra ¶ 16. A guilty plea waives all

nonjurisdictional errors or irregularities and important constitutional rights, including

the right to a trial at which the State will be held to its burden of proving guilt beyond a

reasonable doubt. People v. Peeples, 155 Ill. 2d 422, 494 (1993). “ ‘When a plea of

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guilty is fairly and understandingly made, it admits every material fact alleged in the

indictment and all the elements of the crime with which an accused is legally charged,

and obviates the need of any proof whatsoever.’ ” Id. (quoting People v. Wilfong, 19 Ill.

2d 406, 409 (1960)). As this court has stated, a plea of guilty is “ ‘more than a

confession which admits that the accused did various acts; it is itself a conviction;

nothing remains but to give judgment’ ” and determine punishment. People v.

Manning, 227 Ill. 2d 403, 419 (2008) (quoting Boykin v. Alabama, 395 U.S. 238, 242

(1969)); Machibroda v. United States, 368 U.S. 487, 493 (1962) (“ ‘A plea of guilty

differs in purpose and effect from a mere admission or an extra-judicial confession; it is

itself a conviction. Like a verdict of a jury it is conclusive.’ ” (quoting Kercheval v.

United States, 274 U.S. 220, 223 (1927))). By accepting the respondent’s plea of guilty,

the circuit court in this case necessarily found that the respondent was guilty of

aggravated battery on a public way; that is what it means for a court to accept a guilty

plea.

¶ 123 It is true that the circuit court did not enter a finding of guilt in the record. However,

the court’s omission is of no moment. “A finding of guilt is unnecessary where there is

a plea of guilty. *** ‘Upon a plea of guilty or actual confession in open court, the court

has nothing to do but fix the amount of punishment and render judgment or sentence

accordingly. There is nothing for the court to find. The prisoner, by his confession, has

made a finding unnecessary.’ ” Witte v. Dowd, 102 N.E.2d 630, 635 (Ind. 1951)

(quoting Griffith v. State, 36 Ind. 406, 408 (1871)). Even in the absence of an express

finding of guilt, the circuit court’s acceptance of the respondent’s guilty plea

established, as a matter of law, that the respondent was guilty of committing the offense

of aggravated battery on a public way. People v. Domico, 15 Ill. 2d 590, 593 (1959)

(“[i]t is unnecessary that the court enter a finding of guilt” when the defendant has

pleaded guilty); People v. Dodge, 411 Ill. 549, 550 (1952); People v. Bute, 396 Ill. 588,

591 (1947); People v. Werner, 364 Ill. 594, 599 (1936); People v. Andrae, 295 Ill. 445,

454 (1920).

¶ 124 After accepting respondent’s plea of guilty, the circuit court entered an order of

supervision under section 5-615, evidently assuming that the “admission” or

“stipulation” required by the statute was the equivalent of, or included, guilty pleas. 2

The majority does not question this assumption by the circuit court or find that section

5-615 is inapplicable in cases where the circuit court has accepted a minor’s guilty plea.

2

Prior to the enactment of the Juvenile Justice Reform Provisions of 1998, an “admission” in

juvenile court was the equivalent of a guilty plea. See People v. Taylor, 221 Ill. 2d 157, 167 (2006); In re

A.G., 195 Ill. 2d 313, 316 (2001).

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Indeed, it is a necessary part of the majority’s analysis that supervision under section

5-615 is available following the acceptance of a guilty plea; if it were not, there would

be no need for the majority to reach the constitutionality of the State’s Attorney consent

provision. If, however, section 5-615 permits the circuit court to enter an order of

supervision when the court accepts a minor’s guilty plea and thereby finds the minor

guilty, then the State’s Attorney consent provision is unconstitutional.

¶ 125 As the majority acknowledges, a circuit court’s finding of guilt marks “a traditional

procedural boundary” (supra ¶ 84), beyond which the State’s Attorney’s

constitutionally permissible role comes to an end. Once the circuit court in this case

accepted the respondent’s plea of guilty, that fact established the respondent’s guilt and

the State’s Attorney was constitutionally prohibited from vetoing the circuit court’s

subsequent decision to order supervision for the respondent. Accordingly, when

applied to the facts of this case, the State’s Attorney consent provision under section

5-615(1)(b) violates the separation of powers provision of the Illinois Constitution.

Because the judgment of the circuit court should be affirmed on this ground, there is no

need to reach the remaining constitutional issues and I express no opinion on them.

¶ 126 For the foregoing reasons, I dissent.

¶ 127 JUSTICE FREEMAN joins in this dissent.

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