In re N.H.
JUSTICE GORDON delivered the judgment of the court, with opinion.
Presiding Justice Reyes concurred in the judgment and opinion.
Justice Lampkin specially concurred, with opinion.
¶ 1 Respondent N.H.1 appeals an adjudication of delinquency
¶ 2 On this direct appeal, respondent claims: (1) that the State failed to prove him guilty beyond a reasonable doubt of aggravated battery, battery or robbery, and, thus, this court should reverse his aggravated battery and battery convictions and reduce his robbery conviction to theft; (2) that subjecting juveniles who have been adjudicated delinquent of a forcible felony to a mandatory minimum sentence of five years of probation violates the equal protection clause, where juveniles who are adjudicated delinquent of other felonies are not subject to the same mandatory sentence; (3) that the trial court abused its discretion by ordering respondent to maintain a “C average” in school as a condition of his probation; and (4) that the trial court‘s order should be corrected to reflect adjudications for robbery and aggravated battery, as the adjudications for the lessеr offenses of theft and battery violate the one act, one crime rule.
¶ 3 With respect to respondent‘s fourth claim, the State observes that the trial
¶ 4 However, we do not find respondent‘s other claims persuasive for the reasons explained below. We affirm and order the adjudication order corrected.
BACKGROUND
I. Petition for Wardship
¶ 7 In the States’ petition for adjudication of wardship. the State charged respondent with aggravated battery and robbery, among other charges.
¶ 8 With respect to the aggravated battery charge, the State alleged that, while the victim was “on a public way, the above-named minor knowingly made physical contact of an insulting or provoking nature to [the victim], in that he pushed her in the upper body.”
¶ 9 With respect to the robbery charge, the State alleged that “the above-named minor knowingly took property, to wit: wallet3 and United States currency, from the person or presence of [the victim], by the use of force or threatening the imminent use of force.”
¶ 11 At the adjudication hearing, the State‘s case in chief included the testimony of the victim and two police officers. Respondent offered an alibi defense, which he supported with his own testimony and that of his stepfather. In rebuttal, the State recalled police officer Povsner. We summarize this evidence below.
A. The Victim
¶ 13 Regina Warren, an 18-year-old student, testified that, on July 9, 2014, at 8 p.m., she and a friend were walking near 54th Street and Ashland Avenue in Chicago on the way to her sister‘s birthday party. Respondent was walking behind her with three other people and attempting to make conversation with her. Warren and her friend did not respond, but Warren turned around and observed respondent who was a few feet behind her. Respondent followed Warren and her friend for about a block and a half, when he then stated: “I know you hear me.” A few seconds later, respondent pushed Warren in her upper back from behind which caused her to stumble. Warren then turned around for a second time and observed respondent as he grabbed her wallet out of her hand and ran. Respondent‘s friends also fled, and one of them was on an electric scоoter.
B. Chicago Police Officer‘s Testimony
¶ 16 Chicago police officer Povsner5 testified that, on July 9, 2014, he and his partner, Officer Tracey Knightly, were flagged down near 53rd Street and Racine Avenue by a friend of the victim. Warren then told him that someone had pushed her from behind and stolen her wallet. Warren described the offender as a young, short black male teenager, wearing a multi-colored shirt. After touring the area, Officer Povsner observed a young black male on a
“What happened next was a squad car pulled up, two officers and the victim in the back seat of the squad car, the victim that we had just talked to, and while we were talking to him, they told us that‘s—that‘s him; that‘s the offender.”
¶ 17 Chicago police officer Weber6 testified that, on July 9, 2014, he responded to a call concerning a theft or robbery near the 5400 bloсk of Racine Avenue. The victim provided a description of a male on a scooter, but Weber did not recall the description. Weber placed the victim in the back of his police vehicle and started touring the area looking for the offender. He stopped when he observed that other officers had detained a suspect, whom the victim identified.
C. The Testimony of Respondent‘s Stepfather
¶ 19 After the State rested, respondent‘s motion for a direct finding was denied. Respondent‘s stepfather7 testified on his behalf. The stepfather testified
¶ 20 The stepfather testified that he observed the offender later and took a photograph of the offender on his cell phone two weeks after the incident. The stepfather then went to the police station but an officer “told [him] to leave the
D. Testimony of Respondent
¶ 22 Respondent testified that he was 13 years old on July 9, 2014. At 8 p.m., he was outside his house with his stepfather working on his scooter, when he observed a group of two males and two females walking past them. One of the males grabbed a purse from one of the females and ran into the alley. The victim ran toward the house of a neighbor who called the police. Respondent did not recognize any members of the group. After the incident, respondent was riding on his scooter when police officers stopped and searched him. After another police vehicle arrived, he was handcuffed and arrested. Respondent denied robbing the victim and testified that hе told Officer Povsner who the real offender was but that the officer did not listen.
¶ 23 In rebuttal, the State recalled Officer Povsner who testified that he spoke with respondent but did not recall whether respondent told him that someone else robbed the victim. Officer Povsner also did not recall speaking with respondent‘s stepfather.
III. Adjudication and Sentencing
¶ 25 The trial court adjudicated respondent delinquent on all counts. The trial did not find the testimony of respondent and his stepfather credible and
¶ 26 At sentencing, the trial court stated that the robbery count (count I) would merge with the theft and theft from person counts (counts II and III) and that the aggravated battery count (count V) would merge with the battery count (count IV). The trial court stated: “So the only convictions will be—now, will be the robbery and *** the aggravated battery.” The court sentenced respondent to five years of probation, which the statute made mandatory when a conviction is for a forcible felony.
¶ 27 Respondent filed a timely notice of appeal, and this direct appeal followed.
¶ 29 On this direct appeal, respondent claims: (1) that the State failed to prove him guilty beyond a reasonable doubt of aggravated battery, battery and robbery, and thus this court should reverse his aggravated battery conviction and reduce his robbery conviction to theft; (2) that subjecting juveniles who have been adjudicated delinquent of a forcible felony to a mandatory minimum sentence of five years of probation violates the equal protection clauses of the federal and Illinois constitutions, where juveniles who are adjudicated delinquent of other felonies are not subject to the same mandatory sentence; (3) that the trial court abused its discretion by ordering respondent to maintain a “C average” in school as a condition of his probation; аnd (4) that the trial court‘s order should be corrected to reflect adjudications for only robbery and aggravated battery.
¶ 30 For the reasons already stated above, we correct the trial court‘s adjudication order to reflect adjudications for robbery and aggravated battery. However, for the reasons stated below, we do not find respondent‘s other claims persuasive and affirm his adjudication and sentence.
I. Sufficiency of the Evidence
¶ 32 Respondent‘s first claim is that the State‘s evidence was insufficient to convict him of aggravated battery or robbery beyond a reasonable doubt.
¶ 34 To prove respondent guilty of battery, the State is required to prove respondent knowingly and without legal justification either (1) caused bodily harm to another individual or (2) made physical contact of an insulting or provoking nature. See
¶ 35 To prove robbery, the State is required to prove that respondent knowingly took property from the person or presence of another by the use of
¶ 36 Respondent argues that the State failed to prove either: (1) the physical contact required for aggravated battery; or (2) the use of force required for robbery. For both these crimes, respondent argues that the State‘s evidence was insufficient because the victim testified that she was pushed from behind and thus did not observe who was pushing her at the moment of contact. As a result, respondent argues that her identification of respondent as her assailant wаs inherently incredible.
¶ 37 It is the job of the fact finder to make the determinations concerning the credibility of the witnesses who testify, and the fact finder‘s credibility determinations are entitled to great deference and rarely will be disturbed on appeal. People v. Siguenza-Brito, 235 Ill. 2d 213, 224-25 (2009); People v. Cerda, 2014 IL App (1st) 120484, ¶ 156; People v. Williams, 2013 IL App (1st) 111116, ¶ 76; People v. Bowie, 36 Ill. App. 3d 177, 180 (1976). This deferential standard of review exists because the fact finder is in a superior position to determine and weigh the credibility of the witnesses, observe
¶ 38 In the case at bar, the victim testified that she observed respondent twice: once when he was following behind her; and once after she was pushed as he was taking her wallet from her hand. She testified that respondent was attempting to make conversation with her and her friend and, when they did not respond, respondent stated “I know you hear me.” Then the victim felt a shove in her upper back, she turned and observed respondent grabbing her wallet out of her hand. Based on this testimony and that of the police officers, and viewing it in the light most favorable to the State, we find that a rational trier of fact could have found the elements of force and contact beyond a reasonable doubt. Davison, 233 Ill. 2d at 43 (quoting Jackson, 443 U.S. at 319). The trial court, who had the opportunity to view the demeanor of the witnesses and to hear their testimony, found the victim credible but did not find respondent or his stepfather credible.
¶ 39 Thus, we conclude that there was proof beyond a reasonable doubt that respondent pushed the victim and grabbed her wallet out of her hand, which satisfies: (1) the physical contact required for aggravated battery; and (2) the use of force required for robbery.
II. Equal Protection Claim
¶ 42 Respondent‘s second claim is that subjecting juveniles who have been adjudicated delinquent of a forcible felony to a mandatory minimum sentence of five years of probation violates the equal protection clauses of the United States and Illinois Constitutions.
A. Forfeiture
¶ 44 Respondent admits that he raises this issue for the first time on appeal. Normally, to preserve a sentencing issue for appellate review, an offender must object both at the sentencing and in a subsequent posttrial motion. People v. Pryor, 2014 IL App (1st) 121792-B, ¶ 23 (“To preserve a sentencing issue for appellate review, a defendant must both object at sentencing and raise the issue in a postsentencing motion.” (citing People v. Hillier, 237 Ill. 2d 539, 544 (2010), and People v. Easley, 2012 IL App (1st) 110023, ¶ 16)).
¶ 45 However, a minor respondent is excused from the requirement of raising an issue in a posttrial motion and thus is required to object only at the sentencing itself in order to preserve a sentencing issue for appellate review. In re Samantha V., 234 Ill. 2d 359, 368 (2009) (“a minor must object at trial to preserve a claimed error for review,” although “minors are not required to file a postadjudication motion“). In the instant case, respondent failed to object even at sentencing.
¶ 46 Nonetheless, the issue is not forfeited for our review. As respondent correctly observes, a constitutional challenge to a statute may be raised at any time. In re J.W., 204 Ill. 2d 50, 61 (2003); see also People v. Thompson, 2015 IL 118151, ¶ 32 (a facially unconstitutional statute may be challenged at any time). In J.W., a minor respondent was adjudicated delinquent and raised a constitutional challenge to certain statutorily-mandated aspects of his probation, for the first time on appeal. In re J.W., 204 Ill. 2d at 54, 61. The State argued that he had forfeited any challenges to his probation by failing to raise them before the trial court. In re J.W., 204 Ill. 2d at 61. Our supreme court rejected
¶ 47 In the instant case, as in J.W., respondent is a minor who was adjudicated delinquent and who is now raising a constitutional challenge to a statutorily-mandated aspect of his probation for the first time on appeal. As our supreme court held in J.W., this issue is not forfeited, and the State does not argue otherwise. See also People v. Wright, 194 Ill. 2d 1, 23 (2000) (“a challenge to the constitutionality of a criminal statute may be raised at any time“); People v. Rush, 2014 IL App (1st) 123462, ¶ 9; People v. Bailey, 396 Ill. App. 3d 459, 462 (2009) (“While it is true, and defendant concedes, that he did not preserve this issuе accordingly, we note that we are dealing with a constitutional challenge involving the validity of a statute. Such an argument may be presented at any time, regardless of a violation of technical waiver rules.“).
B. Standard of Review
¶ 49 Although this constitutional issue is not forfeited for our review, respondent still bears the burden of proof to establish its validity. In re J.W., 204 Ill. 2d at 62; People v. Dinelli, 217 Ill. 2d 387, 397 (2005) (the burden is “on the party challenging the validity of the statute” (internal quotation marks omitted)); Wright, 194 Ill. 2d at 24.
C. Respondent‘s Claim
¶ 52 In the instant case, respondent challenges section 5-715 of the Juvenile Court Act of 1987 (Act), which provides in relevant part:
“The juvenile court may terminаte probation *** and discharge the minor at any time if warranted by the conduct of the minor and the ends of justice; provided, however, that the period of probation for a minor who is found to be guilty for an offense which is *** a forcible felony shall be at least 5 years.”
705 ILCS 405/5-715(1) (West 2014).
¶ 53 Respondent claims that subjecting minor respondents who have been adjudicated delinquent of a forcible felony to a mandatory five-year probation violates the equal protection clauses of both the United States and Illinois Constitutions.
¶ 55 In his opening brief to this court, respondent argues that the mandatory probation requirement violated equal protection guarantees because the purposes of the Act were not furthered by drawing a distinction between (1) juveniles who committed forcible felonies and (2) juveniles who committed other offenses. The State argued in its brief that this distinction did not violate equal protection and that equal protection was not violated when comparing juveniles who committed forcible felonies to adults. However, respondent argues that his mandatory five-year probation term violates equal protection by treating juvenile offenders more harshly than adult offenders, since the probation term for robbery is less than five years for an adult offender.
¶ 56 Thus, in this appeal, respondent asks us to consider two different distinctions drawn by statute: (1) the distinction between juveniles convicted of forcible felonies and juveniles convicted of other crimes; and (2) the distinction between juvenile robbers and adult robbers. Respondent acknowledges that this court has considered both of these arguments previously and found them not persuasive, but he argues that these cases were wrongfully decided. People v. J.F., 2014 IL App (1st) 123579, ¶¶ 10-16 (rejecting a minor defendant‘s argument that the five-year mandatory probation requirement violates equal
¶ 57 Where the challenged statute does not affect a fundamental right or involve a suspect class, courts review the statute only under the rational basis test. Breedlove, 213 Ill. 2d at 518; Jacobson, 171 Ill. 2d at 323. See also In re M.A., 2015 IL 118049, ¶ 36. Whether a rational basis exists for a classification presents a question of law which we consider de novo. Jacobson, 171 Ill. 2d at 323. Under the rational basis test, a court asks only if “the method or means employed in the statute to achieve the stated goal or purpose of the legislation is rationally related to that goal.” Jacobson, 171 Ill. 2d at 323. See also Breedlove, 213 Ill. 2d at 518. The legislation carries a strong presumption of constitutionality, and if any set of facts can reasonably be conceived to justify the classification, then it must be upheld. Breedlove, 213 Ill. 2d at 518-19; Jacobson, 171 Ill. 2d at 324.
¶ 58 To apply the rational basis test, a court must first identify the “stated goal or purpose” of the statute in question. Jacobson, 171 Ill. 2d at 323. See also In re M.A., 2015 IL 118049, ¶ 26 (equal protection claims generally require “an
“It is the intent of the General Assembly to promote a juvenile justice system capable of dealing with the problem of juvenile delinquency, a system that will protect the community, impose accountability for violations of law and equip juvenile offenders with competencies to live responsibly and productively. To effectuate this intent, the General Assembly declares the following to be important purposes of this Article:
(a) To protect citizens from juvenile crime.
(b) To hold each juvenile offender directly accountable for his or her acts.
(c) To provide an individualized assessment of each alleged and adjudiсated delinquent juvenile, in order to rehabilitate and to prevent further delinquent behavior through the development of competency in the juvenile offender. As used in this Section, ‘competency’ means the development of educational, vocational, social, emotional and basic life skills which enable a minor to mature into a productive member of society.
(d) To provide due process, as required by the Constitutions of the United States and the State of Illinois, through which each juvenile offender and all other interested parties are assured fair hearings at which legal rights are recognized and enforced.” 705 ILCS 405/5-101(1) (West 2014).
¶ 59 The purpose and policy section, quoted above, was amended effective January 1, 1999, and our supreme court has acknowledged that this amendment “represent[ed] a fundamental shift from the singular goal of rehabilitation to include the overriding concerns of protecting the public and of holding juveniles accountable for violations of the law.” In re J.W., 204 Ill. 2d at 69 (citing In re A.G., 195 Ill. 2d 313, 317 (2001)).
¶ 60 “Given the shift in purpose and policy of [the Act] to include the protection of the public from juvenile crime and holding juveniles accountable, as well as the serious problems” (In re J.W., 204 Ill. 2d at 70) presented by juvenile offenders who commit forcible felonies, we cannot find that drawing a distinction between forcible and nonforcible offenders does not further the Act‘s rational purpose of protecting the public and holding juveniles accountable. See In re M.A., 2015 IL 118049, ¶¶ 5, 19, 71 (finding constitutional a statutory requirement that a 13-year-old juvenile defendant register as a violent offender for 10 years after turning 17 years old); In re J.W., 204 Ill. 2d at 70 (finding
¶ 61 The mandatory probation requirement still leaves the trial court with the tools to craft an individualized sentence and thus fulfill the Act‘s twin goal of rehabilitation.
¶ 62 Secondly, respondent argues that the mandatory probation requirement violates the equal protection clause by treating minors more harshly than adults. Respondent argues that an adult who commits robbery, which is a Class 2 felony (
¶ 63 In sum, we are not persuaded that a juvenile robber is treated more harshly than an adult robber, (1) where the juvenile probation is only one year longer than the maximum probation for an adult; (2) where a minor cannot be committed to the Department of Juvenile Justice for a longer term than an adult could be incarcerated for the same offense, and (3) where juvenile commitment
¶ 64 For these reasons, we do not find either of respondent‘s constitutional claims persuasive.
¶ 65 III. Probation Condition
¶ 66 Lastly, respondent argues that the trial court abused its discretion by ordering that respondent maintain a “C average” in school as a condition of his probation.
¶ 67 A. Forfeiture
¶ 68 As an initial matter, the State argues that respondent forfeited this issue by failing to raise it in the trial court. In his reply brief, respondent acknowledged that he failed to raise the issue, but asks this court to consider it under the second prong of the plain error doctrine.
¶ 69 As we observed above, to preserve a sentencing issue for appellate review, an adult offender must object both at the sentencing and in a subsequent posttrial motion. People v. Pryor, 2014 IL App (1st) 121792-B, ¶ 23 (“To preserve a sentencing issue for appellate review a defendant must both object at
¶ 70 However, a minor respondent is excused from the requirement of raising an issue in a posttrial motion and thus is required to object only at the sentencing itself in order to preserve a sentencing issue for appellate review. In re Samantha V., 234 Ill. 2d 359, 368 (2009) (“a minor must object at trial to preserve a claimed error for review,” although “minors are not required to file a postadjudication motion“). In the instant case, respondent failed to object even at sentencing and, unlike his equal protection claim which we discussed above, this is not a constitutional issue which may be excused from forfeiture. In re J.W., 204 Ill. 2d at 61-62 (a constitutional challenge to a statute may be raised аt any time). Thus, the State is correct, and the issue is forfeited.
¶ 71 Although the issue is forfeited, we may still consider it under the plain error doctrine.
¶ 72 B. Plain Error Doctrine
¶ 73 Defendant seeks review under the second prong of the plain error doctrine.
¶ 74 When a defendant has failed to preserve an error for review, we may still review the matter for plain error. People v. Piatkowski, 225 Ill. 2d 551, 562-63 (2007). “Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court.”
¶ 75 “[T]he plain-error doctrine allows a reviewing court to consider unpreserved error when (1) a clear or obvious error occurred and the evidence is so closely balanced that the error alone threatened to tip the scales of justice against the defendant, regardless of the seriousness of the error, or (2) a clear or obvious error occurred and that error is so serious that it affected the fairness of the defendant‘s trial and challenged the integrity of the judicial process, regardless of the closeness of the evidence.” Piatkowski, 225 Ill. 2d at 565; People v. Wright, 2012 IL App (1st) 073106, ¶ 73.
¶ 76 Defendant challenges the probation condition under the second prong, which requires us to find that the error is so serious that it challenges the integrity of the judicial process. Piatkowski, 225 Ill. 2d at 565; Wright, 2012 IL App (1st) 073106, ¶ 101. The first step of any plain error review is to determine whether any error occurred at all. People v. Thompson, 238 Ill. 2d 598, 613 (2010) (citing People v. Walker, 232 Ill. 2d 113, 124-25 (2009)).
¶ 78 This court will review a trial court‘s selection of a disposition for a juvenile offender only for an abuse of discretion. In re Gennell C., 2012 IL App (4th) 110021, ¶ 11; In re Seth S., 396 Ill. App. 3d 260, 275 (2009).
¶ 79 At a sentencing hearing in a delinquency case, the trial court must determine whether it is in the best interests of the minor and the public for the minor to be made a ward of the court.
¶ 80 When we review this determination, we will reverse only for an abuse of discretion, which occurs only when the trial court‘s ruling is arbitrary, fanciful or unreasonable, or where no reasonable person would take the view adopted by the trial court. In re Gennell C., 2012 IL App (4th) 110021, ¶ 11.
¶ 82 The Act provides, in relevant part, that the trial court may order the juvenile offender, as part of his or her probation, to “pursue a course of study,” to “attend school,” and to “comply with other conditions as may be ordered by the court.”
“provide an individualized assessment of each *** adjudicated delinquent juvenile, in order to rehabilitate and to prevent further delinquent behavior through the development of competency in the juvenile offender. As used in this Section, ‘competency’ means the development of educational *** skills which enable a minor to mature into a productive member of society.”
705 ILCS 405/5-101(1)(c) (West 2014).
Pursuant to the above language in the statute, the question is whether the trial court abused its discretion in determining that this minor‘s “individualized assessment” should include maintaining a C average in school, so that he could develop the “educational *** skills” needed to “enable” him “to mature into a productive member of society.”
¶ 83 Respondent argues that the trial court abused its discretion in ordering him to maintain a C average because, despite the respondent‘s best efforts and through no fault of his own, he could violate this condition. Respondent claims
¶ 84 As respondent observed in his briefs to this court, he earns A‘s and B‘s in school, he desires to attend cоllege, and “maintaining good grades has never been a problem for [him].” In the presentence report, the probation officer stated that the minor had provided the officer with his grades and that the “minor has A‘s and B‘s.” In addition, the officer reported that respondent‘s father had shown the officer “multiple medals the minor has earned from honor roll to the A-Team Scholar and for football and basketball.” According to the minor and his parents, he has no physical or mental health issues, no drug use and no gang affiliation. In the presentence report, the minor described his
¶ 85 In light of the minor‘s reported grades of A‘s and B‘s, his lack of mental or physical health issues, and his supportive family, we cаnnot say that the trial court abused its discretion in ordering the minor to maintain a C average, in order to ensure that he develops the individual skills needed to grow into a productive adult.
¶ 86 Discretion is built into the juvenile system to alleviate concerns that a minor will be punished “through no fault of his own” and “despite his best efforts.” M.L.K., 136 Ill. App. 3d at 382. If a respondent violates a condition of probation, his probation officer has the discretion, with the concurrence of the officer‘s supervisor, to serve the minor instead with a notice of intermediate sanctions.
¶ 87 CONCLUSION
¶ 88 For the foregoing reasons, we affirm the adjudication of wardship and the sentence and order the аdjudication order corrected.
¶ 89 Affirmed; adjudication order corrected.
¶ 90 JUSTICE LAMPKIN, specially concurring.
¶ 91 I concur in the judgment only.