People v. Jonathan C.B.

he retires or leaves John receives when compensation those compensation employment. She does not receive “additional” earned, used, marriage. days but not sick and vacation days vacation constituted trial court’s determination that the sick and and the court’s distribution property marital was not erroneous against weight not the manifest property that marital evidence. reasons, respectfully part.

For these I dissent (The C.B., Illinois, People In re JONATHAN a Minor State of C.B., Petitioner-Appellee, Respondent-Appellant). v. Jonathan Fourth District No. 4—06—1077 Argued August Opinion filed November 2008. 2008. APPLETON, RJ., dissenting. (argued), Appellate both of State

Gary R. Peterson and Catherine K. Hart Office, appellant. Springfield, for Defender’s (Norbert Rietz, Goetten, Attorney, Robert J. Bi- Julia State’s of Urbana J. derman, Appellate Kathy Shepard (argued), Attorneys all of and State’s counsel), Office, People. Prosecutor’s for the opinion of the court: JUSTICE McCULLOUGH delivered C.B., Jonathan a delin- adjudicated respondent, The trial court (720 minor, him of criminal sexual assault ILCS quent finding guilty (720 13(a)(1) (West 2004)) (robbery) ILCS attempt and 5/8— 5/12 — 4(a), (West 2004)), to the Il- ordered him to be committed 18—1 indeterminate term to Department linois of Juvenile Justice an passage years of 15 automatically upon terminate the first (1) arguing age Respondent appeals, 21. respondent attaining beyond a him of criminal sexual assault prove guilty the State failed to (2) were violated when he doubt; due-process rights his reasonable 101(3) (3) trial; section was shackled his bench 5— 101(3) (West (705 (Act) ILCS Act of 1987 Juvenile Court 405/5 — offenses, 2004)), with sex is unconstitu- applied juveniles charged trial. affirm. juveniles right it We tional because denies 24, 2006, petition for supplemental the State filed a August On minor delinquent was a wardship, alleging respondent adjudication of (720 assault ILCS him with criminal sexual charging 5/12— 13(a)(1) (West 2004)) 4(a), 18—1 (robbery) ILCS attempt 5/8— (West 2004)). At 30, 2006, began. bench trial respondent’s August On during the late evidence that trial, presented the State 11, 2006, July 10, 2006, early morning on and the evening July on G.W., minor, sexually old, years and another who was respondent, theory Respondent’s 45-year-old to rob C.H. attempted assaulted and at- for sex and then paid $40 that he and G.W. C.H. of the case was money. to retrieve their tempted approximately p.m. July

C.H. testified that at 11:30 she left her home phone to make a call at her friend Donnie Stewart’s house, approached by house. As she walked to Stewart’s she was a tall shorter, boy younger boy. and a identified respondent C.H. as the taller boy. She stated the “I boy shorter commented to her have three for one.” She told him he should be home in bed respondent told C.H. that the shorter his boy speak was brother and she was not to to him way. C.H. testified the boys made her uncomfortable and she way. continued on her

C.H. arrived at Stewart’s house and used his phone. She remained there approximately 10 minutes and then left to return home. As she home, walking was footsteps she heard behind her and saw and a boy. second The boy second was not the boy same from the earlier encounter and C.H. described him as being short and stout. boys C.H. testified the called to her asked her if she wanted a drink. She stated he garage raised the door nearby on a duplex using a button and asked her to come garage. toward the C.H. declined and respondent let the garage door down. He then suggested they go have a drink at the back of the house. C.H. testified the shorter boy grabbed her arm and pulled her behind the house. She pushed to her respondent, knees and felt her, who put was behind penis his vagina. her boy placed shorter penis in C.H.’s mouth. C.H. stated she fought back to no avail and screaming. During the at- tack, her bra and shirt were torn.

C.H. testified she saw people across the street but no one helped her. A boy by walked and asked happening. what was C.H. stated the boy shorter became startled go and let get her. She was able to away but slipped and fell. C.H. then saw her friend driving by Keisha and asked help. her for Keisha drove an orange gold vehicle that “maybe was like a According C.H., truck.” respondent to told Keisha not to let C.H. in Keisha’s vehicle police because the were coming and Keisha did not let her Respondent in. presented testimony from Take- Williams, sha who stated she drove orange Aztec, an Pontiac which she “funny-made described as a truck.” acquainted She was with C.H. but denied that approached C.H. her and asked for a ride on the date of the alleged Instead, offenses. Williams asserted she was at her home with her children. that,

C.H. testified after being entiy vehicle, denied into Keisha’s she continued on get and was able to to a tree near the back of her house. At that point, respondent hit her on the back of her head and knocked her down. C.H. always pocketknife stated she carried a with her when she was out after dark and respondent yelled “drop at her to knife.” put also his foot on her left arm and held it down. The boy other started stomping on C.H.’s head. light say testified she male voice her

C.H. saw heard a “let go.” belonged police The male voice to a officer. C.H. testified an also arrived the scene. medical for ambulance at She received care injuries reported to her arm. also her stomach She C.H. that hurt. Further, go acknowledged refused to to the she did hospital. C.H. that sexually not she police tell had been assaulted but stated she did report paramedics. the sexual assault to Ambulance, Ramey, paramedic employed by

Sarah Arrow Carle that, in the hours early morning July testified she and her C.H., partner dispatched Ramey were to C.H.’s location. observed as hysterical, crying, having whom she described trouble breath- ing. to on the scene im- appeared C.H. be intimidated men mediately Ramey. go reached for stated to C.H. she wanted home but agreed Ramey injuries. her go to into ambulance so could check As ambulance, helped whispered to to Ramey Ramey C.H. C.H. raped.” C.H. testified she abrasions on Ramey “was observed both C.H.’s elbows and a shoe on her left arm. also had some print C.H. Ramey go in her stated with pleaded tenderness abdomen. she C.H. to but hospital C.H. refused. cousin Destiny Nesbitt testified she was and was with evening July p.m., him on the 2006. At about 10:45 respondent girls for some in the asked because there were $40 neighborhood money. respondent gave needed Nesbitt p.m. Shortly then went at after money sleep approximately phone. a.m., boyfriend spoke Nesbitt’s with on the Dur- respondent conversation, ing hype,” stated “hit a which he had Ultimately, drug she he hit a addict. Nesbitt understood mean respondent. were police looking learned the A duplex Campbell testified she in a 2701A Drive. Nesbitt lived 270IB, duplex, Pooker the other of the woman named lived on side children, garage, had a which including duplex her five G.W key get inside the required Nesbitt also rented. She testified a was incident, always stayed night and that it locked. On the garage inside Pooker’s residence and at- Nesbitt learned tempted police. talk with persuade him to leave residence and that, 2006, he July testified deputy

Sheriff’s Andrew Good shift. 1:15 working patrol midnight as a on the Around officer standing observed two males over screaming a.m. he heard appeared to be screaming males at the female and female. The were saying the males with their fists or hands. Good heard striking her is the The female asked money,” and bread.” “Give me the “Where money. not have stop her and stated she did hitting males to “put knife down.” heard her tell the males Good also run in his up the female stand Good testified he observed pointed chasing weapon, males her. He drew his direction with the two direction, deputy, himself as a sheriffs flashlight in their identified op- in the males turned and ran stop. and ordered them to two wearing a tank that the female was posite direction. Good observed torn and torn, Her bra was also top exposing strap. that was her bra hysteri- her Good described as pants her were soiled in the crotch area. first, the from her. At get cal and stated it was hard to information Good gun. the two males had a raped female stated she had been her were and arms were scratched and elbows saw her elbows bleeding. where her attackers

Ultimately, police the female was able to tell yard. in the front duplex large came from. She described a with a tree Campbell Police went to a residence at 2701 Drive but were unable to immediately entry. They contacting people make tried inside the eventually they residence and someone the door and were able opened custody respondent. to take of two A suspects, showup G.W. identification was respondent conducted. Good heard state that he and *** “just up help they police G.W. went her” “saw the but Eventually, ran.” respondent transported G.W.and were arrested and to a detention center. being Good described G.W. as “five five” and weighing pounds respondent being weigh- “five two” and ing pounds. deputy

Sheriffs Norman July Meeker testified that on he working the 11 p.m. dispatched to 7 a.m. shift and was to the area question Later, of the incident in fight. to assist with a the nature dispatch changed of the and he was informed that it was an armed robbery. He was provided descriptions and the suspects they direction traveling. began walking Campbell were He on Drive alongside houses. At 2701A Campbell, talking he heard someone the phone, saying “they better have their [$40].” duplex

Meeker continued to watch the and observed the front door open on one side and close approximately Eventually, five times. made getting contact with Nesbitt from 2701A. She stated she her cousin, respondent. whom she identified as Nesbitt stated she was supposed to be watching respondent and at about 1:15 a.m. she phone just received a call from him “he hit She hype.” and he stated duplex. stated was on the other side of the Nesbitt acknowledged evening she loaned earlier in the and he $40 longer stated he no it it get had but would back for her.

Meeker attempted and other officers to make contact with the people 2701B Campbell by knocking pounding inside Drive on the door and they announced that were the sheriffs office. No one knocking pounding. speak

answered the or Nesbitt was able to with somebody by phone inside the residence and Meeker asked her to have a.m., open Eventually, opened. them the door. around 2:15 the door was residence, suspects respondent. Two were found in the A G.W. showup respondent identification was conducted and Meeker heard say something they just about walking [C.H.].” how “were with C.H. identified respondent they G.W and were arrested. respondent.

Meeker testified he later Respondent interviewed approached evening, wanting stated C.H. him earlier in the to sell a replied any money. They television. He that he did not have then possibility doing something money. discussed the of C.H. else for okay. stated that was Respondent stated he had a friend and C.H. Respondent Respondent called and obtained from his cousin. G.W $40 stated both he and had sexual relations with behind 2701 G.W. C.H. Campbell Specifically, Drive. he stated he had oral sex with C.H. and that, dur- Respondent reported G.W had sexual intercourse with her. herself, acts, over, her ing possibly C.H. fell cut and her shirt and upset respondent bra became torn. then became and asked C.H. Respondent to walk her home her husband would not be mad. G.W. so that, walking, began yell- out” and they stated were C.H. “freaked ing screaming. point, pulled At one she also out a box cutter. scene, away. he and ran police then arrived on the G.W First, he as- respondent changed story. Meeker testified later activity actually engaged serted he never sexual C.H. Second, informed Meeker that he because she fell over. get to began following they as she left because wanted and G.W C.H. in an their He stated hit and knocked her down back. G.W C.H. $40 time, attempt get money. police At that arrived. Meeker, According also

asserted he never hit C.H. that, he and were inside the residence at 2701B reported while G.W they going police were to tell about Campbell, they discussed what happened. what investigator he was an for the sheriff’s Apperson

Curtis testified deputy sheriff’s Davis interviewed department and he and William rob- Initially, they investigating were was an armed C.H. the offense However, interview, raped she had been bery. during reported C.H. Apperson stated C.H. was investigation changed. and the nature of the assault. He and Davis col- emotional when she disclosed the sexual took wearing during the offenses and clothing lected the she had been why asked she rape Apperson to obtain a kit. C.H. hospital her to the police. explained She the sexual assault earlier report did not not believe her. police before but did rape she had been the victim of a Ap- investigated. report did not be C.H. She felt her claims would person paramedic firefighter and Davis that she told a female raped. she was they where

Apperson transported hospital, and Davis C.H. to the up continued to emotions were Apperson interview her. stated C.H.’s times, calm, very and down. At she was but at other times she became crying lowering emotional and was her head.

Apperson reported testified was taken from her C.H. $50 that, attacked, reported prior being incident. He also stated she she had places, been to two Antoine’s house and Donnie’s house. However, Apperson stated it was difficult to talk to because of C.H. her exactly emotions so he was “not clear” where stated she had C.H. prior been to when the allegedly offenses occurred. Davis testified reported C.H. that she was at Antoine’s house before the incident question birthday and that she had a drink. She did not mention anyone Also, named Donnie Stewart to Davis. he stated told him C.H. initially she was approached by three individuals rather than two. Mary Sexton testified she registered performed was a nurse and sexual reported assault kit on C.H. C.H. to Sexton that she had been walking home from a friend’s house and the friend had not been home. She raped by was two young males and stated she seen had a small gun.

Respondent years 11, 2006, testified he was 16 July old. On 10 and he staying was cousin, at the home of his Destiny Nesbitt. lived G.W next door to Nesbitt. midnight Between and 12:30 a.m. July on approached respondent C.H. little brother G.W.’s and asked them if they buy wanted to a television. Respondent replied that he did not. C.H. then asked respondent if he had money or if he sold drugs. Respondent replied negatively questions. to both C.H. asked respondent if she could anything do for money. Respondent some understood that C.H. referring type was to some activity. sexual He testified he called G.W and C.H. offered to have sex with both of them each. $20

Respondent testified he borrowed from Nesbitt. He gave G.W $40 and G.W.and went duplex engaged $20 C.H. behind the in sexual minutes, intercourse. After 5 or 10 came out G.W from behind the house and handed respondent Respondent a condom. then went behind the house paid performed C.H. oral sex respondent C.H. on $20. and then the engaged vaginal two sexual intercourse. Respondent C.H., testified that as he engaged vaginal intercourse with grabbed her shoulders and her strap slipped bra tore. She also scraped her elbow. After slipping, got up crying. C.H. and was She asked boyfriend going to walk her home her because Respondent beat her. agreed to walk her home and stated he did get not a chance to having finish sex with C.H. home, walking that, he and were C.H. testified G.W

Respondent stated, time, at that money from her. He get their back they decided put After put he told her to it down. C.H. drew a knife and C.H. her and knocked her down. away, knife shoved G.W. knife. G.W. go not for her arm so that she would

stepped C.H.’s her where her any money. not find He asked searched but did C.H. them, scene, lights on on the flashed money appeared was. Police went ran to house and stop. Respondent and G.W G.W’s told them Ap- later. 15 to 20 minutes arrived at house inside. Police G.W.’s later, they were opened the door five minutes G.W. proximately custody. taken into the trial parties’ arguments, hearing all the evidence and

After adjudicated offenses and charged of both respondent guilty court found him to be the court ordered On November delinquent. him Justice for an of Juvenile Department the Illinois committed to years upon in 15 automatically terminate term to indeterminate first. age of whichever came attaining the appeal This followed. prove argues the State failed respondent first appeal,

On He a reasonable doubt. beyond sexual assault guilty him of criminal judg the trial court’s not a credible witness and maintains C.H. was of the record. light not reasonable in credibility to her ment as evidence, question sufficiency of the reviewing “In favorable to light in the most whether, viewing after the evidence essential have found the trier of fact could any rational prosecution, (Emphasis a reasonable doubt.” beyond the crime elements of Jordan, 218 Ill. 2d People v. original.) the defendant and retry not to reviewing court’s function is A People trier of fact. for that of the judgment its

it should not substitute (2006). “The 217 Sutherland, 860 N.E.2d 223 Ill. 2d v. wit credibility of the testimony, the the witnesses’ weight given to be evidence, and in the and conflicts nesses, resolution of inconsistencies testimony are from the to be drawn inferences reasonable Sutherland, 2d at of fact.” of the trier responsibility “where the evidence must be reversed A conviction N.E.2d at 217. reason justify to unsatisfactory as unreasonable, or improbable, so Smith, 185 Ill. 2d guilt.” People [the] defendant’s able doubt an performs criminal if he or she sexual assault commits person A threat of force. of force or by the use penetration act of sexual 2004). 13(a)(1)(West ILCS 5/12 — duplex behind and taken

Here, grabbed she was testified C.H. She engage in sexual acts. her to respondent forced where G.W. overpowered. C.H. screaming fought back but was stated she was vagina. into her penis inserted his specifically respondent testified immediately paramedic “raped” reported being record reflects C.H. by was described Andrew Good. She Ramey deputy Sarah and sheriffs point being hysteri- Ramey being very emotional to police as similarly Also, that C.H. became cal. the trial court commented the sexual as- testimony subject on the providing emotional when sault. statements

Respondent points provided out C.H. inconsistent many in how prior question, about where she went to the incident encounter, closing of opening boys she saw an initial door, dur- her friend “Keisha” duplex’s garage an encounter with Here, attack, boys gun. the trial court ing the and whether the had inconsisten- credibility noted the case came down to issues of and that testimony. present testimony cies were in both C.H.’s thoroughly considered all ruling The court’s oral the case shows it presented, including of the evidence the inconsistencies in C.H.’s end, testimony. respondent. In the it than found C.H. more credible unreasonable, finding improbable, unsatisfactory That is not so justify respondent’s guilt. a reasonable doubt of inconsistencies, Although testimony they C.H.’s contained did not robbery. concern the essential of the sexual or attempted facts assault Moreover, respondent’s own statements were inconsistent and evolved time, over reflecting negatively credibility. on his own He made several statements, regarding engaged different the sexual acts he in with initially being custody, respondent C.H. After taken heard police into “just state he walking trying help [C.H.]” and that he was engaged her. In his first statement to he police, stated and C.H. changed story they engaged oral sex but later and said never Finally, trial, sexual respondent engaged acts. at testified he vaginal both oral and sex with C.H. out, trial,

As the trial court he met pointed respondent at asserted 11, 2006, midnight July C.H. between and 12:30 a.m. on and thereafter cousin, Destiny Nesbitt, obtained from his pay C.H. sexual $40 However, agreed perform. gave acts she testified she Nesbitt July least approximately p.m. 10:45 on at $40 1 hour and minutes he encountered before asserted C.H. at-

Additionally, respondent’s surrounding version of the acts tempted drastically from the acts witnessed robbery was different deputy sheriffs Good. shoved and knocked asserted G.W go not only stepped C.H. down and he arm so that she could C.H.’s twice, for her searched her and help knife. C.H. screamed for G.W 744 money point, police

asked where the was. At that arrived on the scene and he and G.W.fled. however, testified, screaming that he heard and observed

Good screaming The were at the standing two males over a female. males The appeared striking female and to be her with their fists or hands. hitting asked to her and stated she did not have stop female the males up then stood and ran in Good’s direction with money. The female known, chasing presence the two males her. Good made his When males ran in the direction. opposite evidence, reweigh the

Respondent essentially asks this court to reviewing is not the court. The record shows the which function of a the evidence and made a well- thoroughly trial court considered credibility. as to The evidence was sufficient reasoned determination respondent guilty find of criminal sexual assault. to argues next the trial court violated his appeal, respondent

On by having him shackled due-process guarantees fourteenth amendment necessity. determination of without an individualized (1977), Boose, 261, 265, 305 People v. 66 Ill. 2d 362 N.E.2d shackling of a defendant is disfavored supreme court held that (1) (2) jury, restricts the defendant’s prejudice because it tends to (3) trial, dignity offends the ability during to assist his counsel Nevertheless, may a defendant be shackled where judicial process. 265-66, Boose, 2d a manifest need for restraints is shown. 66 Ill. may defendant be shackled when Specifically, “[a] 362 N.E.2d at 305. may may try escape or that he there is reason to believe that he if safety in the courtroom or it is neces pose people a threat to the Boose, during the trial.” 66 Ill. 2d at sary to maintain order N.E.2d at 305. trial court’s discre to restrain the defendant is within the

Whether reversed absent an abuse of tion and its decision will not be Boose, 266-67, at 305-06. The court 66 Ill. 2d at 362 N.E.2d discretion. jury, allowing the hearing presence outside the must hold a argue why the defendant attorney opportunity defendant’s If Boose, Ill. 2d at 362 N.E.2d at 305. not be shackled. should shackled, must also state the court it orders the defendant to remain Boose, 66 Ill. 2d at for its decision on the record. the reasons People trials. to both bench applies N.E.2d at 305. Boose Strickland, App. shackling was made

Here, respondent’s reference to only one small behalf testify called to own in the record. When up. may You “Okay. may step You court stated as follows: trial Sir, the bench. may go approach ahead and you take off the shackles. proceeded then sworn in and Respondent was your right Raise hand.” testify. contains no further mention of record objection, no either his trial or shackling he made motion, posttrial being shackled. in a object shackling post-

A defendant who fails to at trial or motion v. appeal. People Barney, trial forfeits review of the issue on (2006). 590, 593, However, App. 80, 363 Ill. 844 pursuant 3d N.E.2d 83 doctrine, plain-error reviewing may to the court consider otherwise closely forfeited issues if the evidence was balanced or the error was magnitude right such that the defendant denied a substantial 593-94, fair Barney, App. trial. 363 Ill. 3d at 844 N.E.2d at 84. “[P]lain error does not occur when shackles are automatically 596, used without a 363 Ill. 3d at 844 hearing.” Barney, App. Boose “[wjithout Instead, objecting preserving N.E.2d at 86. the issue review, closely the defendant must show the evidence was balanced or ‘the error was so serious it affected the fairness of his trial and ” challenged judicial process’s the integrity.’ Barney, App. 363 Ill. 3d 597-98, 87, at People 844 N.E.2d at v. 359 quoting Thompson, App. Ill. 933, 3d 835 N.E.2d Strickland, 602, App. 363 Ill. 3d at 843 N.E.2d at this

court considered whether the defendant was denied a fair trial because the trial court ordered one of his hands to be handcuffed to a table jury his objection trial. The defendant made no to the court’s argued order but the handcuffing Strickland, resulted in plain error. 363 Ill. App. 3d at 843 N.E.2d at 901. We declined to reverse the defendant’s conviction plain-error Strickland, under the doctrine. Ill. App. 3d at 843 N.E.2d at 903.

In part, 229, 240-41, we relied on People Hyche, 77 Ill. 2d (1979), N.E.2d wherein the supreme court considered whether a defendant’s conviction warranted reversal when he appeared before a jury in objection. There, handcuffs but failed to make an the court concluded the by defendant had waived error failing object to affirmed the judgment. trial court’s Hyche, 77 Ill. 2d at Strickland, at 12. In App. 604-05, 363 Ill. 843 N.E.2d at we noted the Hyche decision indicated it was “the compelling State’s the defendant to wear restraints [d] before the that create the constitutional violation.” object reasoned that “when a We defendant fails to restraints, wearing presence compulsion negated, Strickland, and a constitutional violation has not been established.” App. 3d at 843 N.E.2d at 903. Here, respondent made objection shackling no to his and the record does not indicate the trial court was even aware that he was Strickland, shackled testify. until he was called to Pursuant reversal respondent’s plain-error convictions is not warranted doctrine. plain-error of the

Also, satisfy prong either respondent failed closely First, case was not balanced. the evidence in his doctrine. attempted sexual assault charged with criminal criminal sexual assault testimony regarding robbery. Although respondent between credibility determination came down to a as to warrant whole was not so close C.H., presented the evidence as a testimony, During his plain-error doctrine. application attempted robbery, essentially part admitted from agreed money to take C.H. acknowledging that he and G.W. He made money. her for while G.W searched that he restrained C.H. Further, as police. statements admissions in his first similar discussed, surrounding the criminal- the events version of The dissent many inconsistencies. charge contained sexual-assault only considers the closely but evidence was balanced insists the assault. with the criminal sexual evidence in connection it af- was so serious to show the error Respondent has also failed challenged judicial process’s of his trial and fected the fairness even the trial court was stated, record does not show As integrity. testify. If he was called was shackled until aware that off, the record shackles be taken suggested had not the the court ordered the shackles to this issue. The court nothing as would show to continue respondent had record does not reflect removed and the court not show the The record does them after he testified. wearing shackles, ability to they restricted by respondent’s prejudiced was offended. judicial process of counsel, dignity or the the assist his guilt respondent’s of than sufficient evidence Additionally, more at his trial. presented offends “shackling a minor so argues

Finally, we note sponte have a sua that trial courts should justice notions of the basic and authority position for the find no intervene.” We duty to to show the trial Also, record fails again, the cites none. called respondent was to when prior of the shackles court was aware it needed to know position have been testify may not intervene. 101(3) the Act argues section respondent last appeal,

On 5— (West 101(3) charged (705 2004)), juveniles applied ILCS 405/5 — the juveniles it denies offenses, because is unconstitutional with sex 101(3) of the argues section Specifically,he by jury. to a trial right 5— (Ill. of 1970 8, I, of the Illinois Constitution section Act violates article §8) rights constitutional and federal 1970, I, and his state art. Const. protection. equal process to due *** chal- party the constitutional presumed 11statutes are “[A] demonstrating a clear the burden validity bears a statute’s lenging

747 259, 263, M., 227 Ill. 2d 882 In re Lakisha constitutional violation.” (2008). construe a 570, If a court must reasonably possible, 573 N.E.2d M., 227 Ill. 2d at constitutionality. Lakisha statute so as to affirm its constitutionality is de 263, of a statute’s “[R]eview 882 N.E.2d at 573. 573. M., Ill. 2d at 882 N.E.2d at novo.” Lakisha 101(3) (West 2004)) 101(3) of the Act Section ILCS 405/5— 5— right jury to a trial unless provides “[m]inors shall not have specifically provided by” the Act. 101(3) is unconstitutional

Respondent argues first section 5— (Ill. I, pursuant section of the Illinois Constitution Const. to article I, §8), provides art. which as follows: *** right “In shall have the prosecutions, criminal the accused by jury county speedy public impartial have a trial an which the offense is to have been committed.” alleged juveniles to a trial under the jury maintains are entitled offenses are juveniles charged Illinois Constitution because with sex subject to criminal prosecution, resulting upon a “conviction” finding guilt. He relies on in In re supreme court’s statements J.W., (2003), equating 204 Ill. 2d 787 N.E.2d 747 the term “adjudicated.” “convicted” Additionally, respondent with notes a shift in purpose policy of the Act from rehabilitation protecting public holding juvenile offenders accountable. supreme previously juveniles court has held that no have

right Fucini, jury to a trial under the Illinois Constitution. See In re 305, 310, (1970); 44 Ill. 2d 255 N.E.2d In re 47 Ill. 2d Presley, 50, 55, G.O., N.E.2d In re 191 Ill. 2d (2000), rejected that the arguments court denial of juvenile charged first-degree trial to a murder note, violated equal protection process. although respondent or due We heavily case, it Heiple’s dissenting opinion relies on Justice majority’s opinion precedential. G.O. which is by dissent, As asserted do not address these cases However, specific arguments. they by parties have been cited G.O., the dissent in relied note them here upon respondent, and we by way background. case, support position

To in this relies on In re A.G., 313, There, court supreme 195 Ill. 2d 746 N.E.2d 732 604(d) Court] Rule “compliance [Supreme held that with the 604(d))] [(210 required requirement [was] certificate Ill. R. 322, 737-38. juvenile A.G., 195 Ill. 2d at 746 N.E.2d at proceedings.” decision, about reaching In that the court made several observations in 1999 significantly the Act. It noted the Act had “been amended” section which purpose policy and thereafter contained “a represented] singular goal a fundamental shift from the of rehabilita overriding protecting public tion to include the concerns of A.G., holding juvenile for offenders accountable violations of law.” 317, however, Importantly, 195 Ill. 2d at 746 N.E.2d at 735. the court “still not acknowledged proceedings under the Act were criminal spirit [were] nature and to be administered in a of humane concern for, of, A.G., 317, promote and to the welfare the minor.” 195 Ill. 2d at at 735. N.E.2d J.W., upon next relies 204 Ill. 2d 787 N.E.2d argues explicit juveniles subject which he makes it “all but that are prosecutions system.” full criminal in an adversarial That case dealt constitutionality requiring juvenile register with the as a sex J.W., offender for his natural life. 204 Ill. 2d at 787 N.E.2d at 754. However, with the Sex Offender specifically only J.W. dealt Act), juvenile defined sex of Registration (Registration Act which fender as follows: “ ‘ any adjudicated person “Juvenile sex offender” means who juvenile attempt as the result of the commissionof or delinquent (C 5) (B), (C), this

to commit a violation set forth in item or of— substantially federal, or a violation of similar sister Section state, Section, country of this foreign purposes law. For ’ “adjudicated.” meaning “convicted” shall have the same (West2000).” 150/2(A 5) J.W., 204 Ill. 2d at 787 N.E.2d ILCS — at 755. holding application in J.W. is limited to of the supreme court’s stated, Act, purposes Registra- for of the

Registration expressly which Act, meaning. had the same As “adjudicated” tion “convicted” and out, the broader points proposition the State J.W. does not stand for subject offenses are to criminal juveniles charged that all with sex I, Illinois meaning of article section of the prosecutions within the always holds the same or that the term “convicted” Constitution “adjudicated.” meaning as 221 Ill. 2d 850 N.E.2d recently, People Taylor,

More (2006), juvenile adjudications supreme court determined purposes escape be considered a conviction should not decision, reasserted that bench tri reaching the court statute. juvenile delinquency constitutionally required that is als are “all not considered a criminal proceeding is proceedings” juvenile because a Additionally, at 140. 221 Ill. 2d at prosecution. Taylor, it stated as follows: their ac- juveniles accountable for

“The that seeks to hold policy negate concept public does not protect tions and to consideration in important more rehabilitation remains a 749 justice system juvenile justice system than in the criminal and that two, significant indicating there are still differences between the separate pursu that ‘the ideal of ing.’ treatment of children is still worth ” Taylor, 170, 141, quoting 221 Ill. 2d at 850 N.E.2d at Pennsylvania, n.6, 647, McKeiverv. 403 U.S. 546 29 L. Ed. 2d n.6, 91 S. Ct. 1986n.6 Although policy purpose the 1999 amendments altered the Act, juvenile behind the rehabilitation of offenders remains an consideration, important important proceed- more than in criminal ings. Additionally, the before holding specific J.W. was to the statute broadly it and does not proposition juvenile stand for the that a adjudication the Respondent same as a criminal conviction. has failed to establishing meet his burden of a of constitutional violation I, article section of the Illinois Constitution. 101(3)

Respondent argues Act, next applied section of the as 5— juveniles charged offenses, with sex due-process right violates his to a constitutions, trial under the state and federal which he maintains *** “grant persons right by jury the to a trial charged when with a Const., III, §2; serious criminal offense.” See U.S. art. Ill. Const. I, §13. art. specifically, More due-process he contends his rights entitle (1) him to a trial because purpose of the Act is protect now to (2) the public instead of to juvenile rehabilitate the juvenile a could be indefinitely and involuntarily sexually committed as a violent person nothing based on more proof original than of his bench adjudication delinquency. of

First, stated, although as purpose a shift in and policy of the Act did amendments, occur after the 1999 Taylor makes clear that rehabilitation important purpose remains an and policy behind the Act, more so than in the justice system. reject criminal We contention purpose that “the protect of the Act is now to the public instead of juvenile.” rehabilitate may That be one of purpose Act but it is not the Act’s sole purpose.

Second, respondent’s argument adjudication that an delinquency satisfies the requirements Sexually Violent Persons Commit- (Commitment Act) (725 (West ment Act 2004)), through ILCS 207/1 exposing juvenile commitment, involuntary indefinite and is also without merit. Three alleged criteria must be and established before a person may be committed as sexually person violent under the Com- (1) mitment Act: person delinquent must have been found for a (725 207/15(b)(l)(B) sexually (West (2) violent 2004)), offense ILCS (725 207/15(b)(4) person must suffer from a disorder mental ILCS (West (3) 2004)), the person dangerous must be to others because his or her mental disorder probability creates a substantial that he or 207/15(b)(5) (West violence ILCS engage will in acts of sexual

she 2004)). delinquency sexually for a argues adjudication an three elements under is sufficient to establish all

violent offense portions cites support position, Act. To Commitment Samuelson, opinion in In re Detention dissenting (“[T]he (2000) J., dissenting) State’s (Heiple, N.E.2d having diagnose [the] defendant in this case was able to expert *** having com defendant’s solely by [the] virtue of ‘mental disorder’ punishment” criminal conviction and the acts which led to his mitted omitted)). Samuelson dissenting opinion find the (emphasis We Also, precedential. it is not particular the facts of that case. specific to criteria requires separate Act three the It remains that Commitment to be established. he could allege showing failed to facts

Additionally, has person. delinquency violent His sexually as a subject be to commitment insufficient, alone, satisfy to offense is adjudication qualifying for a requirements. Act’s the Commitment sex charged with argues juveniles

Finally, appeal, respondent federal under the state and right, equal-protection offenses have an XIV; Const., Ill. Const. amend. constitutions, by jury. a trial See U.S. similarly situated I, “Equal protection guarantees §2. art. fashion, government the similar unless will be treated individuals differently.” them reason to treat appropriate an can demonstrate Whitfield, 228 Ill. 888 N.E.2d People v. so- issue, employ we rights are not at fundamental

“In cases where challenged whether the scrutiny and consider rational basis called legitimate governmental to a relationship rational bears a classification at 1172. Whitfield, 2d at purpose.” are with sex offenses charged argues juveniles subject are who juvenile to other offenders similarly situated to a (EJJ) right the and are accorded jurisdiction juvenile extended 810(3) (West of- 2004)), as adult as well jury trial ILCS 405/5 — ex- basis no rational He maintains charged with sex offenses. fenders differently. agree We groups similarly those situated treating ists similarly he is to show has failed find with the State and offenders or adult proceedings EJJ subject juveniles situated to sex offenses. charged argument with the contention supports his

Again, respondent offend- sex Act, juvenile as it relates of the policy purpose of than rehabilitation society rather ers, protection is the contention discussed, this reject we already offender. As juvenile after the changed Act of the purposes find, policies while society holding juvenile protection amendments to include crimes, remains an offenders accountable for their rehabilitation important Act. purpose policy of the

Next, respondent argues similarly juveniles he is situated to subject juvenile to EJJ and adult sex offenders sex offender because faces the possibility sexually person of future commitment as a violent pursuant subject to the Act. to EJJ face Commitment Juveniles and, offenders, sentencing juveniles as like adult an adult criminal “stayed criminal sentence that on the condition that the offender not provisions juvenile violate the sentence.” 705 ILCS 405/5— 810(4) (West 2004).

Here, respondent possibility does not face the of an adult criminal sentence similarly juveniles subject and is therefore not situated to proceedings Further, EJJ or adult offenders. he has failed to show that he is or subject could be to commitment as sexually person violent out, under the Commitment points Act. As the State “[c]ommitment under only [Commitment Act] can result after a successful separate State, action requiring proof of additional elements not offenders, common to all sex juvenile whether or adult.” 101(3) Respondent failed to meet his burden of proving section 5— the Act violated equal-protection rights. Here, the record presented shows the State sufficient evidence to prove respondent committed the offense of criminal sexual assault beyond a reasonable doubt and that his due-process rights were not violated when he was shackled his bench Additionally, trial. 101(3) respondent has failed to Act, establish section ap- 5— plied juveniles to charged offenses, with sex is unconstitutional. stated,

For the reasons we affirm the trial judgment. court’s Affirmed.

MYERSCOUGH, J., concurs. APPLETON,

PRESIDING JUSTICE dissenting: I respectfully majority’s dissent from the decision. I would reverse the trial judgment, trial, court’s and remand this case for a new First, two reasons. closely failing evidence was balanced and 101(3) hearing Second, hold a Boose was plain error. section of the 5— 101(3) (West Act 2004)), juveniles ILCS applied as 405/5 — offenses, charged with sex is unconstitutional because it denies juveniles right to a trial.

A. The Unnecessary Shackling supreme The requiring court has said that a defendant to wear during strong necessity shackling shackles trial without a for the jeopardizes protection presumption the value and of the of innocence. (1977). 33, 37, 72, only In re 67 Ill. 2d 364 N.E.2d If the Staley, alleged reason a defendant is in shackles is the offense for which he is trial, justifiably skeptical happened would feel if the court him innocent presumed proved guilty. mention to that he was until regard Any person position sensible would such statement pro hypocrisy. forma *** “Every person upon accused enters his trial clothed with the States, 178, presumption of innocence.” YeeHem v. United 268 U.S. (1925). 470, 184, 904, 906, But in the circuit 69 L. Ed. 45 S. Ct. Champaign County, seeming court of defendants wear chains as a App. matter of course. See 363 Ill. 3d at 844 N.E.2d at 83 Barney, County, require from in which (appeal Champaign we discussed Boose). Like the counsel in defense counsel Barney, ments of defense objected. Barney, App. in this case never held in 3d at We “plain automatically 844 N.E.2d at error does not occur when hearing.” shackles are used without a Boose It does not follow unnecessary shackling plain can never be error. er- prove plain court has held that a defendant can supreme ways:

ror in two alternative “First, closely where the evidence in a case is so balanced that the not the may the error jury’s guilty verdict have resulted from evidence, reviewing may court consider a forfeited error order preclude argument person wrongly an that an innocent Second, the error is so serious that the [Citation.] convicted. where trial, thus a fair right, defendant was denied a substantial may preserve consider a forfeited error in order to reviewing court judicial process. [Citations.] This so-called integrity disjunctive divergent interpretations two test does not offer error, ways to ensure the same instead two different plain but Herron, 178- People v. 215 Ill. 2d thing namely, a fair trial.” — 830 N.E.2d occurred, logical it plain error deciding Before whether Hudson, 228 Ill. People error at all occurred. consider whether (2008). (I argument, oral note that at did not disclose that the State asserted that the record counsel for proceedings was shackled trial court was aware table skirting not at the counsel testimony. prior to his Whether be directed that the shackles existed, the trial court given that stand testimony from the witness respondent during his removed from to observe position was in a that the trial court imply would seem to time.) majority The cites deci shackling prior shackled, the being objected to holding unless a defendant sions

753 shackling right violated no never constitutional because State compelled the defendant to be shackled. 77 Ill. 2d at 396 Hyche, 12; Strickland, N.E.2d at App. 3d at 843 N.E.2d at 903. It beyond just belief that object, because defense counsel fails to defendant is wearing by likely shackles his own free choice. The more explanation objection is that defense counsel assumed an would be event, futile because routine shackling operandi. is the modus In supreme court apparently longer no subscribes to the rather facile no-objection, no-compulsion Allen, Hyche. People rationale of 340, 353-54, (2006), Ill. 2d supreme court held that even though objected the defendant never wearing an trial, electric stun belt “the failure to conduct a hearing Boose *** error,” (Allen, [was] an a “due[-]process violation” 222 Ill. 2d at 356). Therefore, 856 N.E.2d at I infer object that the failure to shackles does not negate the error of failing hearing. to hold a Boose

The supreme Allen, court concluded in Ill. N.E.2d at that although the defendant had “prove[d] due[-] process violation which by amounted to error showing that he was required to wear an electronic stun belt at trial without the court hav ing first determined that it was necessary,” the defendant had failed “ to establish ‘that the error was so serious that it affected the fair ” ness [his] trial challenged the integrity judicial of the process’ (i.e., the second of the two ways error, alternative of establishing plain Herron). as Allen, described 222 Ill. 2d at 856 N.E.2d at 356. The supreme “Here, court added: cannot, [the] defendant and does not, (refer claim that the evidence presented closely balanced” ring error). to the way other of establishing Allen, plain 222 Ill. 2d at 353, 856 N.E.2d at 357.

Likewise, in appeal us, before the majority declares that “the evidence in [respondent’s] case closely was not balanced.” 386 App. Ill. 3d at 746. majority reasons as follows:

“Respondent charged with criminal sexual assault and at tempted robbery. Although testimony regarding the criminal sexual assault came credibility down to a determination between C.H., respondent and presented evidence as a wholewas not so close application as to warrant plain-error During doctrine. testimony, his admitted respondent essentially part the at tempted robbery, acknowledging agreed that he and G.W to take money from C.H. that he restrained while searched C.H. G.W. money. her for He made similar admissions his first statements Further, to police. discussed, respondent’s version of the events surrounding charge many the criminal-sexual-assault contained App. inconsistencies.” 386 Ill. 3d at 746.

Thus, even though “the criminal sexual assault came down to a cred- (386

ibility respondent App. Ill. 3d determination between and C.H.” 746), balanced, closely did find the evidence to be majority at not (1) (2) he to rob attempted because admitted C.H. and ’ Ill. happened many version what “contained inconsistencies’ 746). reason, attempting at As for App. respondent’s the first to prove sexually attempting rob C.H. did not he assaulted her. His to however, boys her she sex the two prove, rob could that had sold sheriff, they Good, A Andrew money deputy wanted their back. July 2006, he was on testified that sometime around 1:15 a.m. on ap screaming Campbell when he heard on Street. As patrol people striking standing two over a female. While her proached, he saw males her, hands, me screaming with their the males were at “Give testimony, money[!]” is the In his own bread[?]” and “Where G.W, precisely companion, corroborated that is what his money? is the Where is the bread?” Note the said C.H.: “Where respondent’s definite in repetition of the article both Good’s and C.H., testimony: money and the bread. their confrontation with specific boys referring money general the two were not to in but to a they namely, they paid the cash testified had C.H. for her sexual res— services, infer. reasonably or so a trier of fact could majority gives finding The reason the for the evidence not second closely just unconvincing majority is as the first. The to be balanced as testimony many says respondent’s that “contained inconsistencies.” true, majority’s 746. assessment App. 3d at That is but in evidence, testimony and state the inconsistencies C.H.’s that apparently go say do not count. I will not so far ments insufficient, law, as matter of to sustain the conviction evidence assault, credibility fairly ques could be criminal sexual but C.H.’s ir testimony her was repeatedly, tioned. She contradicted herself of the crime scene. To physical reconcilable with certain realities testimony ignore the respondent’s on the inconsistencies in fasten in the testimony does not constitute an imbalance problems C.H.’s review, determination that our standard of testimony, only but under credibility the trier of second-guess the determinations of we cannot closely balanced cannot decide whether evidence fact. We evidence on both sides. objectively weighing the without him on the testimony approached Given C.H. sex with midnight and offered to have July around street knowing where naturally one would be interested payment, him for not where had This is at that hour and she been. going C.H. midnight the streets at should be anyone strolling suggest respondent alleged approached that C.H. but suspected prostitution, television, anything” offered to “do offering to him a him and after sell therefore, the State to counter his money; might expected one have corroborating evidence that C.H. allegation with credible and definite Such evidence was, legitimate out on some errand. contrary, to the on this statements were inconsistent forthcoming, was not and C.H.’s her officer, that she was on question. police Apperson, told a Curt C.H. boys Antoine when the two way visiting home from a friend named dif- Later, hospital, Apperson she told sexually assaulted her. friend named Donnie. story: ferent that she had been to the house of a Davis, officer, gone had police She told another that she William house, Antoine’s she never mentioned Donnie to him. State called Donnie’s last name is Apparently, neither Antoine nor Donnie. name. Stewart. The record does not seem to reveal Antoine’s last nurse, Sexton, registered Mary hospital, A treated at the C.H. notes, according to Sexton’s told her the attackers had a small C.H. pistol. black-handled Because Sexton failed to note down some of the (as photographs abrasions C.H. had suffered shown in admitted evidence) and because Sexton came across to the trial court as a “glum” witness, or reluctant find her the court did not to be credible. witness, But if one considers Sexton to be an unreliable it seems one too, unreliable, would have to consider Good to be for he testified that approached fled, when he C.H. and the him assailants C.H. ran to said she raped “they gun.” had been and that had a never C.H. gun testimony mentioned a her at trial. That her assailants were pistol armed with a important would have been an fact under view, and testimony troubling the omission of that fact from her is inexplicable.

Typically, falsehood reveals itself in the incidental factual representations. A lie becomes more difficult to sustain as the details (I accumulate. am not asserting that C.H. lied. That is not for us to merely trying, fairly decide. I am possible, as take account of side.) evidence on the walking other C.H. testified that as she was sidewalk, house, down the way visiting on her home from a friend’s G.W., respondent, boy, whom she described as the taller whom she boy, go described as the shorter asked her if she would like to behind a respondent’s house and have a drink. the house was where Apparently, cousin, Destiny Nesbitt, According testimony, she lived. C.H.’s paused sidewalk, boy, a moment on the the taller respondent, idly button, pressing causing garage go up a door to and down. C.H. offer, whereupon grabbed testified she her and declined G.W.’s GW. pulled boys sexually her behind the assaulted her. house and the two According respondent’s testimony, voluntarily C.H. went behind him and to have pursuant agreement cousin’s house to her with G.W. out, sex with them for As it turned Nesbitt did indeed apiece. $20 garage adjoining duplex, have a her but the evidence was unrebutted garage garage-door that the had a manual door with no automatic opener or electric button. The trial court stated: “There would be no up, may [misjper- reason for C.H. to make that and it well have been a I ception. anyone paying don’t think careful attention to the garage when the events on the operates mechanism that door are I place.” discussion and what took do not think that all reasonable necessarily minds would be satisfied this rationalization. It is dif- misperceived respon- ficult to understand how could have what C.H. button, doing thought pressing dent was she saw him but actu- —she ally physically door and lifted the grasped garage the handle of aside the again? Setting question door and lowered it over and over that, why anyone physical would feel inclined to do actions are so unlikely. one a mistake A rational different from another as to make find, could find—that trier of fact could find—would not have but up garage-door opener up C.H. made the electric and made the black- and, gun up midnight trip handled and made to the friend’s house therefore, up made the sexual assault. assault, summary, charge of criminal sexual respect majority credibility,

this case turned on as the admits —C.H.’s testimony other— testimony on the one hand and on the plagued only was not the witness whose narrative was contradictions, improbabilities. ques- One could by discrepancies, Therefore, majority’s as- credibility, contrary tion too. to the C.H.’s sessment, closely the evidence was balanced. plain-error doctrine to this case majority apply refuses to count, (robbery), was not attempt

because the evidence on the other view, if a defendant closely Apparently, majority’s balanced. in the first-degree murder and one count charged were with one count closely were balanced on the misdemeanor theft and the evidence count, under the doctrine of former count but not on the latter review the it would not matter that because plain error would be unavailable: balanced, might have caused closely an error evidence of murder was offense—because the wrongly convicted of that the defendant be overwhelming. misdemeanor theft was evidence that he committed logically error cannot be sustained. approach plain That case, the side we choose to err on there is error in a close “When Herron, 215 Ill. fairness, person.” convict an innocent of so as not to hearing was er 193, Failing to hold a Boose 830 N.E.2d at 483. at years, 353, at 356. For 137 Allen, 222 Ill. 2d at ror. See as a shackles can function country recognized in have courts this In the first American against the accused. psychological weapon case, of California stated: shackling Supreme the Court

757 [cjourt custody in of the prisoner upon “A his trial is subject law[ ] and under the immediate control of and to the orders *** [cjourt. [cjourt [AJny which, of such order or action of the imposes burdens, necessity, physical pains without evident trial, restraints of his upon prisoner progress faculties, inevitably tends to confuseand embarrass his mental thereby materially his constitu- abridge prejudicially affect defense; rights especially physical tional would such bonds materially impair and restraints in like manner and prejudicially statutory privilege becoming competent affect his witness and Harrington, 165, testifying People his own behalf.” v. 42 168 Cal. (1871). Likewise, Supreme “[TJhe Court Missouri has stated: condition prisoner extent, may, deprive shackles to some him of the free 591, and calm use of all Kring, his faculties.” State v. 64 Mo. 593 (1877); (Alaska see State, 54, 1981); also Williams v. 629 P.2d 58 n.7 Roberts, 159, 164, State v. Super. 200, 86 N.J. 206 A.2d 203 It may that, physically, be painful restraints are not as they now as were (Deck years a hundred or more ago Missouri, 622, 630, 544 U.S. 161 L. Ed. 2d 2007, (2005); 125 S. Ct. 2012-13 Kennedy v. Card- (6th well, 101, 487 F.2d 1973)), 106 I Cir. but am unconvinced that the cases were merely concerned physical pain. They with were concerned with the diminution of the self-respect accused’s before the tribunal to which he must make his defense. Courts considered it an abhorrent “ ‘ [bjar practice to “[bring the defendant] a contumelious ’ ” “ ‘ [mjanner,” “[mjark bearing, feet, on his hands or ’ ” [ijgnominy [rjeproach.” Deck, 630, 544 U.S. at 161 L. Ed. 2d at 963, Roberts, 125 S. Ct. at quoting Super, N.J. at A.2d at quoting Hawkins, Crown, 28, §1, W. Pleas of the ch. (1716-1721) (section on arraignments). trial, Even in a bench a defendant should not be shackled unless the trial court good has cause to necessary believe that shackles are keep the courtroom prevent escape; safe or to unnecessary shackling dignity threatens the Staley, of the court. 67 Ill. 2d at 364 N.E.2d at 73. As dignity, credibility a court loses its it loses public (Deck, 544 U.S. at 161 L. Ed. 2d at 125 S. Ct. at 2013); and I further argue credibility would it loses with the possible detriment of his defense. To do his best at —to trial, the defendant must have making confidence that he is his case to a impartial genuinely rational and trier of who presumes fact innocent until proves guilty beyond the State him to be a reasonable confidence; doubt. Unnecessary unjustified shackling weakens that it “jeopardizes the presumption’s protection.” value and Staley, 2d at presumption N.E.2d at 73. The of innocence is a noble 758 the hope if hard iron reminds

ideal, inspire ideal will little but this trial, really are between defendant, things the how every moment of ‘with the for, “standing] he is not trial plainly, him the court— ” innocent man.’ of a free and dignity, self-respect appearance, 115 73, quoting Eaddy People, Ill. 2d at 364 N.E.2d at Staley, 67 defending In 719 addition 174 P.2d Colo. evidence, should not have to a defendant against himself the State’s disheartening suspicion that he is futility, struggle with a sense no diminution of can sit in chains with guilty. Anyone who presumed run of hide than the common has a thicker courage and confidence hearing plain to be to hold a Boose humanity. I would find the failure reverse the closely balanced. I would the evidence was error because for a new trial —to be and remand this case judgment trial court’s Boose hear shackles, trial court holds a without unless the conducted them. ing finds a clear need for Trial Jury

B. Denial of a Fucini, and G.O. Presley, The Inapplicability 1. trial denying jury him a argument that rejecting respondent’s by citing three cases— majority begins the process, violated due distinguishable because Fucini, of which are Presley, and G.O.—all making arguments respondent specific not address the they do Fucini, 44 Ill. 2d at true, majority says, that It is as the appeal. this 179 264 N.E.2d at 47 Ill. 2d at Presley, 255 N.E.2d at (which “held that Fucini), supreme the court referenced simply under the Illinois Constitution.” right jury no to a trial juveniles have Fucini and court decided supreme But the App. Ill. 3d at 747. years. intervening 38 changed in the and much has Presley the Juvenile exists. now have longer Act no We The Juvenile Court to effect “a 1987, which, amended so as Act of Court to include of rehabilitation singular goal from the fundamental shift of holding juvenile public overriding protecting concerns of 2d at (Taylor, of the law” for violations fenders accountable 139). Fucini Also, court decided supreme when the 167, 850 N.E.2d at (730 ILCS Act Registration Offender there was no Sex Presley, (West 2006)). through 150/1 supreme court true, says, that the G.O., majority it is As for to a jury of a trial that the denial “rejected arguments in that case or protection equal violated first-degree murder charged with juvenile But, this discussion again, App. Ill. 3d at 747. process.” due in mind the must bear misleading. One as to be general G.O. is so argued He making in that case. argument mandatory process due because violated him a trial denying 33(1.5) minimum of the Act required by section sentence 5— 33(1.5) (West Depart 1996)) i.e., “committment] ILCS 405/5 — — birthday, Division, his ‘21st Corrections, Juvenile until ment of ]emergency furlough, non[ parole, possibility without ” 40-41, (G.O., 191 Ill. 2d at period years’ for a of 5 authorized absence 1005) [he was] to which process “render[ed] 727 N.E.2d at — G.O., Ill. 2d at subject punitive much more than rehabilitative.” due- rejected respondent’s court 44, supreme 727 N.E.2d at 1007. The theory rested on a in for the sole reason that the process theory G.O. such a statute as section premise, namely, false there was 33(1.5). Act void ab initio because Actually, that section of the 5— (Pub. 15, 680, eff. Janu part it was of Public Act 88—680 Act §5— 88— Cervantes, 2750)), which, 189 1, People Laws in ary 1995 Ill. 265, (1999), court held to supreme Ill. 2d 274 the Assembly had violated the be unconstitutional because the General (Ill. §8(d)). G.O., 191 Ill. 2d single-subject clause Const. art. IV 43-44, gave supreme at 727 at The in G.O. the N.E.2d 1007. [its] court “no other reason to reexamine earlier decisions” such as G.O., Fucini. 191 Ill. 2d at 727 N.E.2d at 1007.

Significantly, majority “Contrary in stated: to Justice G.O. Heiple’s dissent], due[-]process [in assertions his we do not hold that a argument by Instead, that, is foreclosed in the Fucini. we hold absence of mandatory sentencing provision, [the] does not ask this court to argument reconsider Fucini. The considered Justice Heiple court[,] is not express opinion before this and we no its [on] G.O., n.3, ap merits.” 191 Ill. 2d at 44 727 N.E.2d at 1007 In this n.3. peal, respondent heavily Heiple’s relies on Justice dissent in G.O. and repeats arguments. Heiple’s It is true that Justice dissent is not precedential, but the majority goes in this case further and concludes Fucini, Presley, dispose Heiple’s arguments G.O. of Justice (which when, fact, respondent’s arguments) majority also are in emphasized other, G.O. it expressing opinion, way no one or the on the merits of Heiple’s arguments Justice and disavowed implication challenge that Fucini due-process along foreclosed a lines of his dissent.

Thus, the three cases on majority chiefly dispos- which the relies G.O.) (Fucini, ing respondent’s due-process theory of re- Presley, ally pose theory. no obstacle at all to that Fucini were Presley exists, rejected decided under a statute that a due- longer no and G.O. process has no relevance to this challenge a narrow reason that case. Approach”

2. Due Process Versus the “Wooden majority challenge The respondent’s due-process concludes that Act, to the despite proceed must fail because the 1999 amendments (A.G., ings under the Act still are not criminal 195 Ill. 2d at 140) 735; Taylor, N.E.2d at Ill. 2d at 850 N.E.2d at juvenile important “rehabilitation remains a more consideration justice system justice system” (Taylor, than the criminal Ill. 2d 141). long juvenile justice system 850 N.E.2d at As as there is a justice severe in the with less maximum sentences than criminal system, delinquency proceed one never will be able to characterize “criminal”; ings absolutely unreservedly rehabilitation — —as always greater juvenile will be a somewhat consideration in delin proceedings. than in criminal Labels should not quency proceedings disposition respondent’s appeal. Supreme determine our Court “Little, indeed, gained by any attempt simplistically to be has said: juvenile proceeding court either ‘civil’ or ‘criminal.’ The to call McKeiver, carefully approach.” Court has avoided this wooden Delinquency proceed U.S. at 29 L. Ed. 2d at 91 S. Ct. at 1984. ings they partake are on a continuum between civil and criminal— asking aspects delinquency proceed each—and instead whether other, whether, in ings asking are one or the we should be case, enough, objectives, close in their to the proceedings were (and enough away far from the State’s criminal end of the continuum role) paternalistic process, traditional as to make it a violation of due unfair, fundamentally deny by jury. him a trial McKeiver, I fairness from a derive the standard of fundamental by Supreme majority A of the Court plurality decision Court. by jury juvenile adjudicative in a court’s agreed in that case that trial 545, McKeiver, constitutionally required. 403 U.S. at stage was not 661, opinion Blackmun wrote an L. Ed. 2d at 91 S. Ct. at 1986. Justice McKeiver, 545-51, 403 U.S. at 29 L. listing holding. 13 reasons for that of 661-64, Only 1986-89. three other members Ed. 2d at 91 S. Ct. at Stewart, Justice Burger, Justice Justice White— Court —Chief in the opinion. in Blackmun’s Justice Harlan concurred joined Justice that, view, jury “criminal trials for the sole reason in his judgments [s]tates, as a matter constitutionally required of the either [were] not McKeiver, at or due 403 U.S. process.” of law [s]ixth[-][a]mendment (Harlan, J., concurring). No at 1992 29 L. Ed. S. Ct. view. Justice Brennan of the court shared that other members in Pennsylvania cases but dissented judgment in the in the concurred (two cases, from groups group one the North Carolina cases Carolina, were before the other from North Pennsylvania and Court). Black- say agreed with Justice In his he did not opinion, Justice reasons, explicitly agree he did point but on one mun’s “ ‘fundamental fair- process required that due Blackmun’s rationale: ” *** McKeiver, 403 U.S. at 29 L. Ed. 2d at factfinding.’ [in] ness (Brennan, J., concurring part dissenting 91 S. Ct. at 1990 part). opinion opinion In both Justice Blackmun’s and Justice Brennan’s (and, Court), therefore, majority Supreme in the view of a denying jury juvenile delinquency fundamental fairness of trial in proceedings depended largely paternalistic on the and beneficent proceedings. character of such Justice Blackmun was concerned requiring jury juvenile proceeding trial would “remake the into a fully adversary an effective end to what has process put [would] intimate, prospect protective proceed been the idealistic of an informal McKeiver, 1986; ing.” 403 U.S. at 29 L. Ed. 2d at 91 S. atCt. Fucini, see also 44 Ill. 2d at 255 N.E.2d at 382. Justice Brennan reasoned as follows: availability by jury

“The protect trial allows an accused to against by himself possible oppression appeal what is in essence an community conscience, as embodied in the that hears extent, however, his case. To some protection may a similar be may community obtained when an accused in essence appeal to the at large, focusing public trial, upon attention the facts of his exposing judicial improper view, behavior to public obtaining, necessary, if through executive redress public the medium of indignation. course, Constitution, Of in the context of adult trials, rejected criminal has the notion that public trial is an adequate by jury substitution for trial serious cases. But in the juvenile context delinquency say I proceedings, cannot that it is beyond the competence juveniles of a to conclude [s]tate who fear that delinquency proceedings judicial oppression will mask may obtain adequate protection by community focusing attention upon the For, juvenile trial of their cases. system however much the may practice, very have failed in ostensibly its existence as an beneficent and process guidance noncriminal for the care and young persons community’s demonstrates the existence of the sympathy young. and concern for the bring Juveniles able to community’s may attention to upon bear their trials therefore upon draw public reservoir of concern unavailable to the adult McKeiver, 554-55, criminal defendant.” 666, 403 U.S. at 29 L. Ed. 2d at (Brennan, J., 91 S. at 1991 concurring part Ct. and dissent- ing part). in

Justice Brennan dissented in the North North Carolina cases because Carolina permitted required general law either the exclusion of the 556, public juvenile McKeiver, from trials. at 2d at U.S. 29 L. Ed. 667, (Brennan, J., concurring 91 S. Ct. at 1991 in part dissenting and in part). 5(6) except for provides: general public the Act “The Section of 1— *** shall be excluded from media and the crime victim

the news [s]ection[,] only and, in this except persons specified for the hearing associations, in agencies of and who including representatives persons, or in the direct interest in the case opinion of the court have a hearing.” 705 ILCS of the court shall be admitted to work 405/1— 5(6) (West 2006). hearings from public is excluded general Because the discretion, court, trial in its the Act and we have held that a under (In 480, Minor, 3d App. re a 205 Ill. may exclude the news media also 1069, (1990)), scrutiny of the trial court’s public 563 N.E.2d for cannot substitute juvenile delinquency in a case decision public a reservoir of upon was not able to “draw trial. 91 S. McKeiver, 29 L. Ed. 2d at Ct. See 403 U.S. at concern.” (Brennan, J., dissenting part). concurring part and at 1991 necessity Further, to the Act and the with the 1999 amendments a result of the register as a sex offender as respondent’s having of “concern,” “sympathy,” delinquency, of it is unclear adjudication proceed values in the uppermost “paternal attention” were 1989. McKeiver, 91 S. Ct. at 403 U.S. at 29 L. Ed. at ing. “ostensibly beneficent.” was not respondent, process applied As (Bren at 1991 McKeiver, 555, 29 Ed. 2d at 91 S. Ct. 403 U.S. at L. part). Taylor, nan, J., concurring part dissenting 138-39, gave court an 165-66, supreme 2d at amendments to the Act: overview of the 1999 *** Assembly radically altered ***. The General “The Act was January 1, Public Act effective amended the Act with 90— 1999). (Smith-Hurd seq. et Ann. 1999. ILCS 405/5—101 largely rewrote amendatory renumbered the sections changes criminal accountability for the provide more article V of the Act to juvenile make the and, all juveniles appearances, from acts in nature. more criminal adjudicatory process look delinquency 1996) (West seq. with 705 ILCS et Compare 705 ILCS 405/ 405/5—1 (West 2000). starters, amendments the 1999 seq. For 5—105 et section, in relevant which states policy purpose a new provided part as follows:

‘(1) Assembly promote the General It is the intent of problem with the system capable dealing juvenile justice community, system protect that will juvenile delinquency, juvenile law[,] equip accountability for violations impose productively. responsibly to live competencies offenders Assembly the fol- intent, declares the General To effectuate this [ajrticle: of this important purposes to be lowing (a) crime. juvenile from To citizens protect (b) directly accountable juvenile offender hold each To acts. his or her

(c) alleged of each an individualized assessment provide To to rehabilitate adjudicated juvenile, order delinquent through the delinquent behavior prevent and to further As used juvenile in the offender. development competency of [sjection, development of “competency” means the this social, emotional[,] life skills educational, vocational, and basic member of productive to mature into a which enable a minor society. (d) by the provide process, required To due as Constitution Illinois, through which and the State of of United States are as- juvenile parties offender and all other interested each rights recognized are hearings legal sured fair at which enforced. (2) justice accomplish goals, juvenile policies To these developed pursuant designed to this shall be to: [a]rticle

Ob) present Provide secure confinement for minors who danger community to the and make those minors understand crimes, felonies, particularly that sanctions for serious violent should be commensurate with the seriousness of the offense merit strong punishment;

(c) community Protect from crimes committed minors;

(j) Hold minors accountable for their unlawful behavior ^{[*] [*] [*]} and not allow delinquent minors to think that their acts have consequence no for themselves and others.’ 705 ILCS 405/5— (West 2000). Although proceedings under the Act are still not criminal nature even in the aftermath of the 1999 amendments and are to spirit be administered in a of humane concern for the minor and to promote welfare, general policy statement in section 5—101 represents singular goal a fundamental shift from the of rehabilita- overriding public tion to include the concerns of protecting juvenile holding offenders accountable for violations of the law. end, changed with the 1999 amendments [Citation.] Consistent this terminology provides some of the The Act now for a Act. number of features common to a criminal Pertinent to our trial. analysis has now following provisions. legislature are ‘ replace indicated an intent the term “trial” the term “adjudicatory synonymous that definition as hearing” and be (West 1998). 101(17) it in the [Act].’ was used 705 ILCS 405/5 — Furthermore, in a ‘plea guilty’ the Act now allows for a of (West 1998)), and if delinquency proceeding ILCS 405/5—605 conclusion, conducted, its required, a trial is the court is finding proceeding ‘make and note in the minutes of the added.) guilty.’ (Emphasis .whether or not the minor is 705 ILCS 1998). (West ‘guilty,’ If the court finds the minor 405/5—620 proceeds ‘sentencing hearing,’ cause then to a where it is deter- interests of the minor or the mined whether or not it is public the best court, possibility that he be made a ward of the with the court, adjudicated be that if defendant is a ward of the could Corrections, Juvenile Division. Department committed to the (West1998). sum, Act 5—710 ILCS 405/5— 5— sentencing provides pleas guilty,findings guilty[,] now that, Act since the only Not “tried” under an and, amendments, emphasis punishment put an increased said, nature,” court more criminal but supreme “look[ed] Department the Juvenile Division of the of Correc- commitment to (an five-year twenty-first birthday approximate tions until his sentence) longer recognizes to an even sentence when one translates for time served and good-time that adult offenders earn credits Moreover, finding “guilty” of of the offense programs completed. (West 2004)) (720 13(a)(1) of criminal sexual assault ILCS 5/12 — meaning within the designation predator” resulted in a of “sexual 2(E)(1) (730 150/2(E)(1) (West 2004)), requiring section ILCS as a sex offender when he turned begin registering (West 2004)) (730 150/3(a) registering to continue for the ILCS (West 2004)). acting The State was not rest of his life ILCS 150/7 sympathetic “parent” imposed when it compassionate as a deep abhorrence. Society on him. holds sex offenders requirement Earl-Hubbard, Registration Laws: See M. The Child Sex Offender Punishment, Associated and Unintended Results Liberty Deprivation, 1990s, Nw. U. L. Rev. Letter Laws With the Scarlet (“Authorities (1996) numerous instances of have documented years in the few registered and attacks on offenders vigilantism effect”); Tewksbury, R. Conversation: have been registration laws Home: The Unin- Exile at Residency Restrictions on Sex Offenders: Restrictions, Residency Sex Consequences tended Collateral Offender (2007) (loss employ- or denial of 42 Harv. L. Rev. 534-35 C.R.-C.L. interaction, finding housing). ment, difficulty decrease in social Cain, having is like the mark registered as a sex offender Being grave. He will be respondent will bear to his it is a mark that crime, kept forever within of his kept “forever under the shadow change being not able to magistrate, criminal voice and view of the ‘authority immediately in giving notice to the his domicilewithout seek, may even other ***. He not charge of his surveillance’ rectitude. retrieve his fall from among people, other scenes and him, subject tormenting hope Even that is taken from and he is walls, that, op regulations tangible if not so as iron bars stone States, press continuity as much their ***.” Weems United 793, 798, 217 U.S. 54 L. Ed. 30 S. Ct. Considering juvenile delinquency proceed- what was at stake in this ing, to a required right fundamental fairness have a trial, and I judgment would reverse the trial court’s and remand this case right. with directions to afford him that ILLINOIS, THE PEOPLE Plaintiff-Appellee, OF THE STATE OF v. DIYEZ OWENS, Defendant-Appellant. RAMON Fourth District No. 4—07—0838 Opinion filed December 2008.

Case Details

Case Name: People v. Jonathan C.B.

Court Name: Appellate Court of Illinois

Date Published: Nov 18, 2008

Citation: 898 N.E.2d 252

Docket Number: 4-06-1077 Rel

Court Abbreviation: Ill. App. Ct.