## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Suprem e Court

In re Danielle J. , 2013 IL 110810

Caption in S upreme Court: In re DANI EL L E J
., a Minor (The People of the State of I llin o i s , Appellant and Cross-Appellee
, v. Danielle J
., Appellee an d C ross

Appellant).

Docke t No. 110810

Filed Dec ember 19, 2013

Held ( Note : Thi s sy ll abus

con st it ute s n o par t of the opi nio n of the cour t but has bee n pre

par ed by t h e Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) Under the J uvenile Court Act, a continuance under supervision may only be g rante d prior to a fi n d i ng of g uilt, and, wher e this did not occur , the constitutionalit y

of the Act’s further provision that supervision must be
approve d by the State was no longe r rele vant—f i n d i n g of statutory unconstitutionalit y

vacated.

Dec ision Under Review Appea l from the Circuit Court of Cook County
, the Hon. Ter renc e V. Sharkey , J udg e, pre siding.

J udg ment Circuit court judg ment vacated in part a nd reve rsed in par

t. Cause re manded.Counsel on

Appea l L isa Madig an, Attor ney Gene ral, of Springf ield, and Anita Alvare z, S tate’s Attorney
, of Chicag o (Alan J

. Spellberg
, Annette Colli ns an d Ver onica Calderon Malavia, Assistant State’s Attorney s, of counsel), for the People.

Abishi C. Cunningham, J r., Cook County Public Def ender
, of Chicag o (James S. J acobs, A ssistant P ublic Def ender , of counse l), for a

ppellee.

J ustices J USTI CE BURKE de livered the judgme nt of the cour t, with opinion.
Chief J ustice Gar

man and J ustices Fr eema

n, Thomas, Kilbr ide, and Theis

concur red in the judg ment and opinion.
J ustice Ka

rmeier concur red in pa rt and dissented in pa

rt, with opinion.

OP INION

¶ 1 I n the course of Danielle J .’s delinquency proce eding s, the circ uit court of Cook County decla red section 5-615(1) of the J uvenile Court Act of 1987 (the Act) (705 I L CS 405/5- 615(1) (West 2010)) u n co n s tituti onal on its fac e and as applied to her. Section 5-615(1) provides that a juvenile who is not c harg ed with c ommitt ing first deg ree murder, a Class X fe l ony or a forc ible felony may obtain a continuance under supervision “(a ) upon an admission or stipulation by the appropr iate responde nt or minor responde n t o f the fac ts supporting the petition and befor e proce eding to adjudication, or afte r hear ing the evidenc e at the trial, a

nd (b) in the absence of objection made in open court by the minor, his or her
pare nt, g uardia

n, or leg al custodian, the minor’s attorney or the State’s Attorney .” (Emphase s added.) The circ uit court held that the statutory authority g iven to the State’s Attorney under section 5-615(1) (b) to objec t to the g rant of a continuance under supervision violates
separ ation of powers, equal protection and due proce ss g uara ntees. The court then entere d

an order
, over the State’s objection, g ranting responde nt a continuance under supervision for
one y ear

. ¶ 2 For rea sons that follow, we find that the t ri al co u rt er re d i n rea ching the issue of the statute’s constitutionalit y

. We vaca te t hat finding and rema nd for further proce eding s consistent with our opinion.

¶ 3 BA CKGROUND ¶ 4 On J anuar

y 27, 2010, the State filed a delinquency petition ag ainst responde nt, 15-y ear

old D anielle J
., char g ing her w ith having c ommitt ed a misdeme anor battery in violation of section 12-3(a )(1) of the Criminal Code of 1961(720 I L CS 5/12-3(a )(1) (West 2010) ). The

-2-petition alleg ed that Danielle J

. was a delinquent minor beca use, on J anuar

y 15, 2010, while
at school, she knowing ly cause d bodily harm to her classmate, J ada M., by striking her in the fac e and c hest. ¶ 5 On Marc h 8, 2010, prior to the commence ment of trial, the State offe red to rec ommend

a nine-month continuance under supervision in exchang e for responde nt’s g u i l t y plea. Respondent reje cted the plea offe r and the matter proce eded to trial. At t ri al
, t h e State
prese nted two witnesses—Jada M., the alleg ed victim, and I van Nava rro, a secur ity g uard at Ace Tec hnical Charte r Hig h School, where responde nt and J ada attended cla sses. ¶ 6 J ada testified th at o n J an u ar y 1 5
, 2 0 1 0
, at about 10:30 a.m., she was in school and walking to a class when she was confr onted by Alesha W., another student. Alesha was

acc ompanied by three friends, one of whom was responde nt. J ada testified that Alesha beg an to arg ue with her and then took a swing at her. When that happene d, Na v ar ro , one of the

s c hool’s secur ity g uards, immediately intervene d by stepping betwee n her and Alesha. Whil e Nava rro was holding Alesha awa y from J ada, responde nt came around the secur ity g uard and punched J ada in the fac e three to four times. At that point a second secur ity g uard arr ived and took control of re spondent. ¶ 7 Nava

rro testified similarly

to J ada. H e said that he saw Jada and Ale sha beg in to arg ue and immediately intervene d by stepping betwee n the two g irls in an attempt to preve nt them from hitting e ach othe r. Na varr o also testified that while he was try ing to keep Alesha a nd J ada apar t, he looked to his left an d s aw t h at responde nt was punching J ada in the fac e. Nava rro testified that he saw responde nt hit J ada three or four times with a closed fist befor e any one was able to stop her. Navar ro also testified t hat he did not see Jada hi t responde nt. After prese nting this testimony , the State re sted. ¶ 8 De fense counsel moved for a direc ted finding and the trial court denied t h e m o t i o n

. Counsel then called responde nt to the s tand. I n an effort to establish that she acted i n selfdefe nse, responde nt testified as follows. On the morning of J anuar y 15, 2010, while a

tt e n d ing Ace Tec hnical Charter Hig h School, responde nt met with her fr i en ds, Alesha, Sierra, and Chastity
, and walked wit h them to h er n ex t class. As they walked, Alesha tol d responde nt that she wanted to “conf

ront” J ada about something. Moments later, they saw J ada exit a classroom and start to walk in their direc tion. Acc ording to responde nt, when J ada was about
two to three fee t awa

y , Alesha started arguing with J ada. Respondent further testified that a

secur ity g uard came up to J ada and Alesha as they wer e arguing in the corr idor and stepped betwee n them just as they both started throwing punches at eac h other. Ac co rd i n g to responde nt, J ada was still throwing punches as the secur ity g uard h el d Alesha ag ainst the wall. Respondent claimed that one of J ada’ s pu n ch es passed by responde nt’s fac e, bare ly missing her. Respondent admit ted t hat s he was not sure whether J ada was swingi ng at her

or Alesha. Nonethele ss, she reta liated by punching J ada in the fac e. Respondent also testified that both she and J ada continued to fig ht with eac h other until another secur ity g uard stopped them. ¶ 9 After hear ing closing arguments, the trial court reje cted responde nt’s self-de fense theory and found he r guilty

of misdemeanor battery

. The court then continued the matter to April 8, 2010, “for

social [hist ory ] and sentencing .”

-3-¶ 10 On April 8, 2010, the probation office r submitt ed his social history repor t to the court a

nd

rec ommended that responde nt be sentenc ed to one y ear of probation. The State ag ree d with that rec ommendation, but su gges t ed that responde nt also be order ed to attend ang er managem ent classes. Def ense counsel ag ree d that ang er manag ement classes would be
appropr iate, but asked if the court would co nsider “some sort of supervision” instead of probation. The c ourt responde d:

1
“THE COURT: Mr. Tountas [defense counsel], a g ood point, except juvenile law doesn’t allow me to c onsider.
And one of the problems I ’m having with this case , and I ’m taking i t under consideration, is to [ sic ] whether to decla re it unconstitutional as to J uvenile Court, whether or not afte r a trial I have to—basically what I have to do is g et the State’s permission to enter an order for supervision. That is not the case in the adult sy stem. MR. TOUNTAS: That’s c orre ct.
THE COURT: In the adult sy stem, even afte r a trial a judge can enter an order of supervision. The only way around that, I think, would be to find it unconstitutional as applied
to the minor. Due proce ss, I believe, might be one argument for that. But simply g o ahea d and—y ou’re askingme to consider tha t? ” ¶ 11 The trial court, finding that it was preve nted from g ranting Danielle a continuance under supervision by the S tate’s Attorney ’s obj ection pursuant to section 5-615(1)(b), continued the dis p o s i t i onal hear ing and asked both defe nse counsel and the State to prepa re leg al memoranda

reg ardingthe constitutionality of t he S tate’s Attorney “appr oval provisi on” in section 5-615. A ne w cour t date wa s set for June 17, 2010. ¶ 12 At the J une 17, 2010, hear ing, defe nse counsel submitt ed a written motion asking the trial
court to g rant Danielle a continuance under supervision over the State’s objection. Counsel

asser ted that the trial court had the authority to ente r such an order due to the fac t that the State’s Att o rn ey “approval provision” in section 5-615 of the Act is unconstitutional. Counsel also submitt ed a me morandum of law , as re quested by the court, in support of his claim that the State’s Attorney “appr oval provision” in section 5-615(1) (b ) is

u n const itutional. Respondent was not prese nt at t his hear ing and t he trial court ente re d n o ruling beca

use the State did n o t have an opportunity to prepa re a written response to responde nt’s motion or the memorandum of law reg arding the constitutionalit y of th e statute,

as the court had reque sted. The court acc epted defe nse counsel’s tender of the documents and order ed the State to subm i t its response and memorandum of law by J une 25, 2010. The
matter wa s rese t for disposition on J uly 1, 2010. ¶ 13 Be fore ending the hear ing, the court asked the assistant State’s Att o rn ey s wh o wer e

I t is cl ear fr om the re cor d tha t def ens e cou nse l’ s re que st for “so m e sor t of sup er visio n” was 1 unde rs too d as a r equ est fo r a con ti nua nce und er sup er visio n pu rs uan t t o se ct ion 5- 615.

-4-prese nt abo u t the training they rec eived and the g uidelines they followed when deciding 2 whether to offe r or object to supervision. I t was explain ed t h at as sistant State’s Attorney s

rec eive no formal training and are g iven no written g uidelines on this specific topic. I t was noted, however, t h at newer assistant State’s Att orney s, or “third chair s,” gene rally rec eive trai n i n g on plea offe rs from the “first chair ” in the courtroom and this includes some instruction on when to offe r super vision and when to oppose it. ¶ 14 The court as k ed t h e as s i s t an t State’s Attorney s if they wer e awa re of the statutory
g uidelines used by courts for deciding when to g rant supervision in adult court. In the course 3 of that discussion, Assistant State’s Attorney Pill sbury pointed out that in responde nt’s case

a rec ommendation of nine months’ supe rvision ha d been offe red to the responde nt pr ior to trial, but was re

jected. A ssistant S tate’s Attorne y Pill sbury then commented:
“And it’s my understanding that in supervision, the idea o f supervision is that the minor is put on supervision and then no finding will be enter ed if the supervision is term—is completed satisfac torily

. *** In this case , there ’s alre ady a finding enter ed,

so the—I guess the point of supervision is moot. Since there ’s alre ady been a finding
, y ou can’ t go ba ck and e rase it.” The c ourt responde d, “Well, that’s one theory
, except in adult court, there can be a finding of g uilty and the supervisions [ sic ] could sti ll be enter ed. You’ re a war e of that; that is correc t? ” ¶ 15 The assistant State’s Attorney admitted she h ad n o ex p er i en ce i n ad ult court a nd, there fore , was unsure of the proc edure . The matter was then he ld over to Jul y 1, 2010. ¶ 16 At t h e J u l y 1
, 2010, hear ing, defe nse counsel urg ed the court to decla re the State’s Attorney “appr oval provision” within section 5-615(1) of the J uveni l e Court Act

T he ass is ta nt Sta te ’s Att orn eys in cou r t on thi s dat e wer e Assi st ant Sta te ’s Att orn ey 2 Pil ls bur y and Assi st ant Sta te ’s Att orn ey Rubne r, who wer e st and ing in for Assi st ant Sta te ’s Att orn ey Om ar , who had bee n assi gned this cas e, but was on v aca ti on. Late r, a super visor , Assis ta nt Sta te ’s Att orn ey Ke ll ey, came to the cou rt roo m and j oin ed i n t he d is cus si on.

T he cou rt was m aking re fe re nce to sec ti on 5- 6- 1(c ) of the Unif ie d Code of Corr ect ion s (73 0 3
I LCS 5/ 5- 6- 1(c ) ( We st 201 0)) , whi ch p rovid es:

“( c) T h e c o u rt m ay, upon a ple a of guilt y or a st ipu la ti on by the def end ant of the f a ct s sup por ti ng the cha rge or a fi ndi ng of guilt
, def er fur the r pro cee din gs and the imposi ti on of a sen te nce , and ent er an o r d e r for sup er visio n of the def end ant , if the def end ant is not cha rged wit h [vari ous m is deme a n o r s o r a fe lon y]. I f the def end ant is not bar re d fr om re cei ving an ord er for sup er visio n as pro vided in thi s sub sec ti on, the cou rt m ay ent er an ord e r f

o r s u per visio n af

te r con si der ing the ci rc um st anc es of the off ens e, and the his tor y, char act erand con dit ion of th e of fe nde r, i f t he c our t i s of

th e op ini on t hat : (1) th e of fe nde r i s no t l ikely to comm it fu rt her cr imes; (2) the def

end ant and the publ ic woul d be best ser ved if the def end ant wer e not to

re cei ve a cr iminal re cor d; and (3) in the bes t i nte re st s of j ust ic e a n or der of supe rvisi on is m ore app rop ri at e than

a s ent enc e ot her wis e pe rmitt ed u nde r t his Code .”

-5-unconstitut i onal, contending that this provision violates separ ation of power s and equal

protec tion, and is fundame ntally unfair and inconsistent wit h t h e m an ifest g oals of the J uvenile C ourt Act. C ounsel then asked the court to g rant respondent a co n tinuance under supervision notwithstanding the State’ s Attorney ’s objection. ¶ 17 The State, on the other hand, argued that the “appr oval provision” in section 5-615(1) is constitutional. The S tate contended that the pro v i s i o n h ad previously been upheld in In re T.W

. , 101 I ll. 2d 438 (1984), and in People ex rel. Dev ine v. Stralka
, 226 I ll. 2d 445 (2007), and urge d the court to find the statute constitutional for that re ason. The State asked that a sentenc e of pr obation be imposed. ¶ 18 After

hear ing a rgument, the trial cour

t entere d the following ruling : “In the matter befor e this Court now in In Re Danielle J.
, 10J D336, afte r a trial, the minor was found g uilty o f a battery and no adjudication or sentenc e has y et to be
enter ed. So supervision, under the curr ent statute, 705 I L CS 405/5-615(1), is not barr ed assuming no veto by the State’s Attorne y . Howeve r, in this case, the State’s Attorney has objec ted to the continuanc e under supervision.” ¶ 19 The c ourt then explained that it found the ca ses cited by the State to be distinguishable

or unpersua sive. Fur

ther, the court held that, even if the statute wer e fac ially valid, i.e.
, if it

wer e constitutional, in g ener al, for a State’s Attorney to have the au t h o ri t y t o object to an order of supervision, it found the State’s Attorney ’s exercise of that rig h t i n t h i s case unconstitutional. The court rea soned that the State had offe red to rec ommend an order of supervision befor e trial, but later objected t o s u p er v i sion only beca use Danielle had opted to g o to tr ial. The court found that this amounted to a “trial tax” a nd held that responde nt’s elec tion to g o to tr ial was not an a ppropriate fac tor for the State to c onsider when deciding whether to object to a g rant of supervision. I n addition, the court noted that the State claimed
to be objecting to the order of supervision beca use Danielle’ s crime was one of violence, i.e.
, battery

. Howeve r, the court pointed out that the State was awa re of the nature of the char g ed crime when it agree d to reco mmend supervision before trial

. Thus, the court found this purported r eason f

or the State’s posttrial objec tion to be disingenuous. ¶ 20 Finally
, the court noted that the State’s memorandum confirme d that assi s t an t S t ate’s Attorney s rec eive no formal training on when to a g ree or object to a n order of supervision; that there is no w ritten policy on when a

n assistant State’s Attorney should ag ree or objec t to supervision; and there are no statutory g uidelines in t he J uvenile Court Act for deter mining when supervision might be an appropr iate sentenc e, althoug h there are statutory g uidelines for g ranting supervision to adults (see 730 I L CS 5/5-6-1 (West 2010)). I n light of these fac ts, the court held that the State’s Attorney ’s exercise of her authority to object to an order of supervision was arbitra ry and, as such, a violation of due proce ss. The court decla red section 5-615 of the J uveni l e C o u rt Act unconstitutional on its fac e and as applied to responde nt, stating:
“In considering there i s n o ra t i onal basis for the *** leg islature to treat simil arly situated adults and juveniles differ ently with reg ard to a judge ’s authority to impose supervision, that constra ining a judge ’s ability

to gr ant a se ntence of super vision is
counter -intuitive to the J uvenile C ourt Act’s specific goa l of rehabilitat i o n an d the

-6-Act’s g rant of disc retion to the judg e’s de termining the best interest of the juvenile and g iven the State’s Attorney ’s veto power o v er the authority of supervision, I ’m finding it to be a violation of separ ation of power s and of equal protec tion and of due
proce ss.” ¶ 21 Ha v i n g d ec l ar ed t h e S t at e’ s At t o rn ey “ap p ro v al provision” in sect i o n 5 -6 1 5 unconstitutional, the trial court enter ed an orde r g ranting responde nt a continuance under supervision over the State’s Attorney ’s objection. Pursuant to the order
, Danielle was subject
to court supervision for one y ear , during which time she was require d to continue attending school, complete 20 hours of community s er v ice, and ref rain from any g ang , g un, or drug
contac t. Danielle also was ref err ed to the Clini cal I nterve ntions Unit for ang er manag ement and individual counseling

. ¶ 22 On J uly 13, 2010, the court amende d the above ruling and, in confor mance with Supre me Court Rule 18, issued an order finding section 5-615(1) of th e J u v en i l e Court Act unconstitutional beca

use i t d o es not permit a continuance under supervision if the State’s Attorney objects in ope n court. The g rounds listed wer e: violation of separ ation of power s; violation of equal prote ction; and “violation of due proce ss arbitrar ily enfor ced.” ¶ 23 The State appea led direc tly to this court pursuant to Supreme Court Rule 603 (ef f. Oc t. 1, 2010).

¶ 24 ANALYSI S ¶ 25 Although the State comes befor e this court on direc t appea l from the circ uit court’s r uling
t h at s ec tion 5-615(1) of the J uvenile Court Act (705 I L CS 405/5-615(1) (West 2010)) is unconstitutional, th e S t at e prese nts no argument reg arding the constitutionalit y of this statutory provision. I nstead, relying on our decision in In re Veronica C.
, 239 I l l

. 2 d 134 (2010), the State contends that the trial court err ed in rea ching the issue of the statute’s constitutionalit y

and, ther efor e, the r

uling should be r ever sed. ¶ 26 We ag ree that our deci s i o n i n V er o nica C. controls the resolution of this appea l. I n Veronica C.
, the responde nt-minor, like Danielle here
, was char g ed with misdemeanor battery ag ainst a schoolmate, was tried and found g uilty as char g ed. See In re Veronica C.
, 239 I ll. 2d at 138. A continuance under supervision was not reque sted prior t o t h e court enter ing a finding of g uilt. After the matter proce eded p as t t h e first-phase proce eding s to 4 adjudication and sentenc i n g, defe nse counsel argued that Ver onica should be adjudicate d delinquent and her case closed with no sentenc e imposed. Id. at 141. The court reje cted that proposal and imposed a

sentenc e of 12 months’ probation. ¶ 27 Ver onica appea led to the appellate cour t , wh er e, for the first time, she challeng ed the constitutionalit y of the State’s Attorney “appr oval provision” in section 5-615(1)

. Ver onica
argued that the statute violates equal protec tion and separ ation of power s beca use it permits the State’s Attorney to bar the circ uit court from g ranting a minor a continuance under

I n Ver oni ca C. we exp la ine d tha t j uvenil e pro cee din gs con si st of thr ee sep ar at e and dis ti nct 4 pha ses : t he f

ind ings p has e, t he a dj udi cat ion pha se, and th e di spo si ti ona l p has e.

-7-supervision. The appellate court upheld the constitutionalit y of the statute and aff irmed the circ uit court’s judg ment and sente nce. ¶ 28 We g ra n t ed Ver onica’ s petition for leave to appea l and aff irmed the appellate court’s judgme nt, but did not rea ch the issue of the statute’s constitutionalit y . Rather, we held that Ver onica lacke d standing to challeng e the constitutionalit y of the State’s Attorney “appr oval provision” in section 5-615(1) beca use she had not been adver sely aff ecte d by the operation of that provision. Id. at 147 (“A party may not raise a constitutional challeng e to a provision of a statute that does not aff ect him or her.” ) (citing People v. Malchow
, 193 I ll. 2d 413, 425 (2000))

. I n rea ching that d e termination, we interpre ted section 5-615(1) of the J uvenile Court Act as requir i n g “t h at the possibili ty of supervision be broac hed and considere d, if at all, before ‘proc eed i n g t o fi ndings and adjudication.’ ” (Emphasis in orig inal.) Id. at 146. “Adjudication” in this context, we said, meant an “adjudication of delinquency
, the formal culmination of t he first p h as e p roceeding s.” Id. at 146 n.1. I n light of our i nterpre tation of the statute, we held that it was the failure to broac h the subject of supervision prior to a finding of guilt being e ntere d, and not the State’s objection, which had preve nted her from

rec eiving a continuance under supervision. We conclude d, there fore
, that even if we wer e to hold the “appr oval provision” of the statute unconstitutional, Ver onica would not be entitled
to the relief she soug ht—a continuance under supervision— b ec au se the failure to reque st supervision prior to a finding of guilt being enter ed made the State’s Attorney ’s objections irrele vant. Acc ording ly
, we held that Ver onica was unaff ecte d by the statute’s operation and, thus, lacke d standing to challeng e the statute’s constitutionalit y

. For that rea son, we did not need to a ddress that issue in her appea l. ¶ 29 I n the case at bar, Danielle, like Ver onica in Veronica C.
, was statutorily prec luded from obtain i n g a continuance under supervision once the trial court enter ed its finding that Danielle was g uilty of misdemeanor battery

. Thus, when Danielle’ s attorney reque sted supervision at the adjudication and sentenc ing hear ing, that reque st came too late. See In re Veronica C.
, 239 I ll. 2d at 146 (the plain lang uag e of the statute require s that the possibili ty of supervision be broac hed and considere d, i f at al l
, befor e proce eding to finding s and adjudication). Fur

thermore
, once the finding of guilt was enter ed, not onl y wa s defe nse counsel statutorily

prec luded from seekinga continuanc e under supervision, the trial cour t also was statutorily prec luded from g ranting a continuance under supervision, reg ardle ss of whether the State’s Attorney objected. For this rea son, by the time Danielle’ s counsel soug ht

a continuance under supervision at the adjudication and sen t en ci n g phases of the
proce eding s , t h e statutory veto power exercised by the State’s Attorney was no longe r rele vant. There fore
, it was improper for the trial court to consider the constitutionalit y of the “appr oval provision” within section 5-615(1)

. We find that the trial court err ed by doing so and, thus, vaca

te the finding of unconstitutionalit y

. I n addition, beca use the trial court lacke d statutory authority to g rant a continuance under supervision once it found Danielle g uilty
, its subsequent orde r g rantingDanielle supe rvision is void and must be rever sed. ¶ 30 The State contends that upon reve rsing the order g ranting Danielle a continuance under supervision, we must rema nd the matter t o t h e circuit court with instructions that the trial

-8-court enter a dispositi on of probation. Danielle, howeve r, argues in a cross-a ppeal that she 5

rec eived ineffe ctive assistance of counsel, or that plain err or occur red which denied her due
proce ss, beca

use neither her attorney nor the trial court applied or understood the plain meaning of the ju v en i l e s upervision statute and, as a result, failed to broac h the matter of supervision at the appropr iate time. She asks that we fashion an equitable reme dy to addre ss t h e p re j u d i ce she suffe rs as a result of her counsel’s defic ient perf ormanc e and the fundame ntal unfairne ss of the proce eding s. She sug g ests two possible reme dies: (1) that we revie w the trial court’s finding that section 5-615 is unconstitutional, or (2) that we rema nd
t h e m at ter for a new first-phase proce eding

. Thus, befor e we can decide the prop er dispositi on of this case , we must consider whether
, as Danielle argues, she rec eived ineffe ctive assistance of counsel or whether the proce eding s wer e fundame ntally unfair, constituting plain er

ror. ¶ 31 There is no question that a minor char g ed with committing an offe nse, like Danielle he re, is entitled to the eff

ective assistance of counsel in juven i le delinquency proce eding s. See People v. Austin M.
, 2012 I L 111194, ¶ 76 (minors in delinquency proce eding s have a nonwaivable statutory rig ht to counsel, as well as a constitutional rig ht to eff ective assistance of counsel). The standard utiliz ed to g aug e the eff ectivene ss o f counsel in juvenile
proce eding s is the Strickland standard, used in criminal case s. See Strickland v. W ashington
, 466 U.S. 668 (1984). Under this standard, ineffe ctive assistance of counsel is established if the minor can demonstrate: ( 1) counse l’s perf ormanc e fa iled to me et an objective standard of competence and (2) counsel’s deficient perfor mance resulted i n p re

j u d ice to the m inor. See People v. Denze l W

. , 237 I ll. 2d 285 (2010); People v. Evans
, 186 I ll. 2d 83, 93 (1999). ¶ 32 Fur

ther, under I llinois Sup re m e C o u rt Ru l e 615 and I llinois ’ plain-er ror doctrine, a revie wing court may consider defe cts in proce eding s aff ecting substantial rig hts if a clea r and obvious err or occur

red and that err or aff

ecte d the fairne ss of the proce eding s and challeng ed the integ rity of the judicial proce ss. People v. Piatkowski
, 225 I ll. 2d 551, 565 (2007). “Plain

err or” may proper ly be invoked where a court misapprehe nds or misapplies the law. See People v. W

ilkins
, 343 I ll. App. 3d 147, 149-50 (2003) (a t ri al co urt’s m isapprehe nsion of

a minimum sentenc e nece ssitates a new sentenc ing hear ing when it appea rs t h at t he trial court’s misunderstanding influence d the s entenc ing decision); People v. Miranda
, 3 2 9 I ll. App. 3d 837, 845 (2002) (reve rsal required where tri al co urt denied defenda nt a forfeiture hear ing ba sed on its misapprehension of the law). ¶ 33 Section 5-615 permits an order of supervision “upon an admission or stipulation by the
appropr iate re spondent or mi nor respondent of the f acts supportingthe petition and bef ore proce eding to adjudication, or a fter he aringthe evidence at the t rial.” We said in Veronica C. that the plain meaning of this lang uag e meant that, in juvenile delinquency proce eding s,

a continuance under supervision must be considere d, if at all, prior to a finding of g uilt being
enter ed and the culmination of the first-phase proce eding

. Danielle asser ts that her attorney was de ficient be cause he either did not know these require ments or misappre hended the m.

On August 28, 2012
, we ent er ed an ord er des ignat ing the sec ond ar gum ent in re spo nde nt’ s 5 bri ef as a c ros s- app eal

.
-9-Danielle also claims she wa s prejudice d as a r esult of her attorney ’s def

iciency beca

use he failed to inform her t h at s h e ri sked losing the opportunity to obtain a continuance under
super v i s ion by reje cting the State’s Attorney ’s plea offe r. I n addition, beca use of her attorney ’s misapprehe nsion of the law, he failed to request super vision after pr ocee ding to trial, but befor e a finding of g uilt was enter ed. As a result, she lost the opportunity to obtain

a continuance under supervision. Danielle asser ts that, had h er attorney known that a continuance under supervision was statutoril y prec luded once a findingof guilt is enter ed, and had he communicated that to her, she would have acc epted the State’s plea offe r and not go n e to trial. Or, if she proce eded to trial, she would have reque sted supervision b ef o re a finding was e ntere d. ¶ 34 Danielle also contends that her juvenile proce eding s wer e fundame ntally unfair beca use the trial court also misapprehe nded the plain meaning of the statute, i.e.
, that a continuance under supervision is statutorily prec luded once a finding of g uilt is enter ed. Danielle

conce des that, g ener ally
, a trial court has no obligation to broac h the subject of a continuance under supervision afte r trial and befor e finding a responde nt guilty

. Howeve r, in this case the trial court’s subsequent actions demonstrated that it believed that supervision was the proper dispositi on for Danielle. There fore
, the failure to broac h the subject of a continuance under supervision at t h e p ro p er t i me was a result of the court’s misunderstanding of the plain lang uag e of the statute, which rende red the proce eding s fundame ntally unfair. Danielle was prejudice d beca

use, absent the trial court’s misunderstanding of the law, Danielle’ s opportunity

to obtain a continuanc e under supervision would not have be en lost. ¶ 35 We ag ree with Danielle. I n Veronica C

. we h el d t h at the plain lang uag e of the statute require d t h at t h e subject of supervision be broac hed, if at all, prior to the court enter ing a finding of guilt. I n the case at bar, however, b o t h counsel and the court demonstrated a misapprehe nsion of t he law when they failed to broac h the s ubject of a con t i n u an ce under supervision prior to the entry of a finding of g uilt. I n fac t, the re cord aff irmatively demonstrates that both counsel and the court believed a continuance under supervision could be g rante d at the dispositi onal hear ing, even though a finding of g uilt had al ready been
enter ed. Moreove r, the trial judge repe atedly held that supervision was available to Danielle but for the State’s objection and then g rante d Danielle a continuance under supervision over the State’s Attorney ’s objection, fi n d i n g the State’s Attorney “appr oval provision” unconstitutional. The rec ord clea rly demonstrates that both counsel and the trial court wer e

unawa re that a continuance under supervision was s t a t u t orily preclude d once a finding of
g uilt was enter ed. We find, there fore
, under the circ umstances of this case , the failure of both counsel and the trial court to raise the option o f s u p er v ision at an ear lier stag e in the
proce eding s, befor e a finding o f g uilt was enter ed, was err or which aff ecte d Danielle’ s substantial rig hts. We also find that Danielle rec eived ineffe ctive assistance of counsel, was prejudice d by her attorney ’s deficient perf ormanc e, and t h at t he trial court’s error aff ecte d the fairne ss of the proce eding s below and challeng ed the integ rity of the judicial proce ss. Danielle was prejudice d by these err ors beca use they denied her the opportunity to obtain a continuance under supe rvision. ¶ 36 I n Veronica C.
, Ver onica never argued ineffe ctive assistance of counse l, plain e rror , or that “the trial cou rt ’s fa i l u re to raise the option of supervision at an ear lier stag e in the

-10-proce eding s aff ecte d the fairness of proce eding s below and challen ged t h e integ rity of t he judicial proce ss.” See In re Veronica C.
, 239 I ll. 2d at 147. As a result, we did not have the opportunity to consider what reme dy should be af forde d to someone who had established such claims. Her e, Danielle sug g ests that a proper equitable reme dy for her counsel’s and the trial court’s err ors would be that this court revie w the trial court’s fi n ding that the State’s At torney “appr oval provision” in section 5-615 is unconstitutional. I n the alterna tive, she asks that we r emand this matter to the tria l court for a new first-phase hear ing. ¶ 37 We decline the inv i t at i o n t o co n s i d er t h e constitutionalit y of the section 5-615( 1). Danielle, like Ver onica in Veronica C.
, is prec luded by statute from obtaining a continuance under supervision beca

use the subject of supervision was not raised prior to a finding of g uilt being ente red, not beca

use of the State’s Attorney “appr oval provision” within section 5-615. Thus, the constitutionalit y of the State’s Attorney approva l prov i sion in the statute is not proper ly befor e this court. ¶ 38 We agr ee , h o we v er , that it would be appropriate to rema nd this matter for a new firstphase hear ing. By doing so, Danielle could be proper ly advised b y co u n s el that if she
proce eds to trial and is unsucce ssful, the g rant of a continuance under supervision would be subject to the State’s Attorney ’s approva l and might be lost. I n this way , Danielle would be able to make an informed and knowing d ec i s i o n ab out whether to acc ept the State’s plea offe r, should that offe r be r einstated. ¶ 39 I n the event that, upon rema nd, the State does not extend an offe r of supervision and the
matter should proce ed to trial, Danielle would have the opportunity to reque st a continuance under supervision from the court prior to a finding being enter ed. This would not be a futile exercise beca

use, as the State made clea r at oral argument, there is no evidenc e that the State would have objected to a supervision order beingenter ed at that juncture beca use Danielle

never reque sted supervision prior t o t h e court entering a finding of g uilt. Of course, in the
event that the State objects to the court g ranting Danielle supervision, Danielle could, at that time, properly

raise a challeng e to the constitutionality of the statute. ¶ 40 For

the re asons stated a

bove, we vacate the cir cuit court’s f inding that se ction 5-615 is unconstit u t i o n al. We reve rse the order of supervision and rema nd to the circ uit court for further proce eding s consistent with this opi nion.

¶ 41 Circuit court judg ment vacated in part a nd reve rsed in par

t. ¶ 42 Cause re manded.

¶ 43 J USTI CE KARMEI ER, concur ring in part and dissentingin part: ¶ 44 As the majority acknow ledg es , t h e trial court lacke d the statutory authority to g rant a continuance under supervision onc e it f o u n d D a n ie lle g uilty

. Consequently
, its order g ranting Danielle supervision is void and must be reve rsed. Fur t h er , as the majority finds, it was improper for t h e trial court to consider the constitutionalit y of the “appr oval provision” within section 5-615(1)

. Thus, the circ uit court’s finding of unconstitutionalit y must also be

vacated. Howeve r, for the rea sons here afte r set forth, I disag ree with t he discussion that

-11-underpins the major ity ’s re mand of this case for “ a new first-phase hear ing.” ¶ 45 Danielle’ s claims of ineffe ctive assistance of counsel and p l ai n er ro r ar e m er i t l ess, Neither the fac ts, nor the law, no r co n s i d erations of equity justify the rema nd that is the culmination of the majority ’s err ant analy sis. As the State sug g ests, this court should rema nd the matter to the circ uit court with direc ti o n s t h at t h e circ uit court enter a dispositi on of probation. ¶ 46 The majority ag ree s with the arg uments advanc ed by Danielle in her cross-appe al. S ee supra ¶¶ 33-34. Even a cu rs o ry examination of Danielle’ s brief exposes inhere nt inconsistencies in Danielle’ s position

. Danielle’ s issue statement rea ds in part: “Da nielle

rec eived ineffe ctive assistance of counsel and/or she was denied due proce ss wher e neither her attorney nor the trial court applied or understood the plain wording of the juvenile supervision statute such that eac h failed to broac h the matter of supervision at the appropr iate time.” (Emphasis added.) A g ood part of the rest of the brief is de voted to showing us how “cla irvoy an[ce]” would have been require d to anticipate “the previously unarticulated interpre tation of the supervision statute that this Court’s decision in Veronica C. repr esents” and that neither trial counsel nor the circ uit court could have seen it coming

. So which is it? Were both so defic ient in their un d er s tanding or remiss in their edification that they could not g rasp the “plain wording ” of the statute? Or wer e they both the innocent, but othe rwise competent, victims of what Danielle would char acte rize as this court’s blindsidi ng decision in Veronica C. ? ¶ 47 I f the latter, then Danielle ca n n o t es t ab l i s h t h e fi rst prong of Strickland
, i.e. , that counsel’s perf

o rm an ce was defic ient. As we noted in People v. English
, 2013 I L 112890, ¶ 34, counsel is not defic ient for failing to anticipate leg al developments that could not have been f orese en. ¶ 48 Moreove r, it is not clea r that the trial court was confuse d. The court’s statements during the proce eding s leading up to its ruling on the statute’s constitutionalit y demonstrate that it
appre ciated the differ ence betwee n “super vision” and “probation.” There fore
, its consistent ref ere nces, immediate ly afte r t rial, t o “proba tion” as t he most lenient dispositi on available in Danielle’ s case sug g est that the court, at t hat poi nt, underst o od the t ime for supervision had passed. After the t rial j udg e advised Danielle he did not believe her version of events, and pronounce d her g uilty of misdemeanor battery
, the court sta t ed : “[Y]ou’ve been convicted of a misdemeanor battery today

. I t rang es from a penalty of probation to 364 day s in jail.” (Emphasis added.) Shortly there afte r, in the course of answe ring questions posed by Danielle’ s g randmother
, the court ag ain s t at ed: “And, probation—I ’ll be honest with y ou, g randma
, probation’s our fir st option .” (Empha sis added.) ¶ 49 W h en the case was ag ain before the court, on April 8, 2010, the court first asce rtaine d that “Mr. Blake,” appar ently the author of the social history repor t, believed a dispositi on of “one y ear of probation” was appropr iate. Then, t h e court inquired of the assistant State’s Attorney prese nt, an d was advised that the State “agree [d] with the Probation Offic er’ s

rec ommendation of one y ear probation.” I t was not until defe nse counsel mentioned “some

-12-sort of supervision” that the court itself first used that term, and it then beca me immediately 6
appar ent that the court had previously considere d the constitutional implications of the provision requiring State consent, and that the court anticipated it might “make an interesting ruling ”—thoug h no one had raised th e co nstitut ionality of the statute to that point—and rende r a judgme nt that might take this case “s t ra i gh t up to the S upreme Court.” However,

even a fter the court e x presse d interest in beingthe vehicle for a ruling that would send the

case on its way to this court, the circ uit court still appea red to rec og nize that the time for supervision, in a juvenile court context, had passed, as evince d by the following statement: “In the adult sy stem, eve n after trial a judge can enter an orde r of supe rvision.” (Emphasis added.) The clea

r implication is the court’s rec og nition that, in the juvenile court sy stem, the trial and subsequent finding of g uilt serve d as a proce dural line of demar cation, bey ond which super

vision was no longe r an option. ¶ 50 Howeve r, even assuming, arguendo
, that both defe n s e co u n s el an d t h e co u rt wer e oblivious to the applicable proce dural sequenc e for consideration of supervision, neither this

rec ord nor case law supports a fi n d i n g t h at Danielle suffe red prejudice or that the
proce eding s were rende red f undamentally

unfair. ¶ 51 Wit h respe ct to the circ uit court’s role in the matter, the majority opinion eng ag es in no meaning ful analy sis, and discusses no pertinent authority
, befor e concluding that the circ uit judge ’s supposed ignor ance of the proce dural sequenc e for considering supervision qualifies

as the rar e instance of second- prong plain err or. It just is. The majority does not even acknowledge
, much less addre ss, our observation in Veronica C. that we we re awa re of no structura l mandate—be it a “statutory provision or rule” —that “re quires the court to raise the
prospec t of supervision sua sponte .” See Veronica C.
, 239 I ll. 2d at 146. I n a brief, we would
not hav e fo u n d it nece ssary to even consider unsupported contentions such as those that comprise the majority ’s analy sis; they would have failed to comply with Rule 341. Her e, they constitute the opinion of the cour t. ¶ 52 The linchpin of this court’s ineffe ctive assis t an ce an d p l ai n -e rr or “ana ly ses” is the transpar ent fiction that the State might not have objected to supervision had the matter been timely broac hed by either defe nse counsel or the court. No experience d criminal prac titioner, confr onted with the fa cts of rec ord, would consider, as rea listi c, this c ourt’s insistence that the State might, af

t er Danielle’ s ref

usal to acc ept responsibility for her actions, and her reje ction of a favor able plea o ff er , there afte r have countena nced the same favor able dispositi on. Be yond that, taking into account the afore mentioned procedura l history of t he

case , who could b el i ev e, in light of the State’s persistent posttrial protestations that supervision would be inappropriate—base d on cited fac tors which wer e all known prior to trial —that the State would have taken a differ ent position immediately afte r the prese ntation of evidenc e at trial and befor e a finding of delinquency ? Yet, th i s is—and must be—the
cente rpiec e of this court’s analy sis if it is to find established either the prejudice prong of

Unli ke the m aj ori ty, I see no eviden ce o f r e c o r d to ind ic at e tha t cou nse l’ s ambiguous 6

re fe re nce to “so m e sor t of sup er visio n” was, at tha t ti m e, a spe ci fi c re fe re nce to a con ti nua nce unde r sup er visio n pu rs uan t t o se ct ion 5- 615.

-13-Strickland or second- prongplain err or. ¶ 53 Given this statute’s unco m m o n d i s p o s i t i o n al framework, the State had the statutory authority to take super

vision off the t able and, though defe nse counsel and the court could b ro ach the m atter, they could do nothing in that reg ard without the S tate’s consent
, wh i ch

wou l d o b v i ously have been withheld here

. The points identified by the State in oral and written argument as the bases for its decision wer e, as mentioned, all pretrial fac tors, as the following excerpt fr om the State’s posttrial pleadingmakes c lear :

“Althoug h the People need not detail t h ei r rationale for objecting to the imposit ion of a term of supervision, it should be noted that there are sever al fac tors that support the People’s ultimate position. First, as alluded to above, this is a ca se wher e the minor ref

used to acc ept responsibility for her actions. I t is well established that individuals who admit they are guilty and acc ept responsibility for their actions

are g ener ally entitled to a benef it at se ntencing

. The minor, in c hoosing to ref use to

acc ept responsibility for her actions, was not entitled to the benef it of a t er m o f supervision.
Fur thermore
, the People also considere d that the minor could very well have been char g ed with a felony for her actions of beatin g t h e victim on school g rounds. By char g ing the minor with the misdemeanor offe nse of battery
, the People had alre ady
g iven the minor a substantial be nefit.
Fi n al ly
, the P eople considered the fac ts, circ umstances and nature of t he cr i m e when they

objected to a

term of supe rvision. This was not a property or possession crime. This is a crime wher e the minor phy sically beat another teena g e g irl in broad daylight on school g rounds i n front of a number of ot her students. Consider ing the level of violence that is esca lating in our school sy stem, a term of supervision for an individual who ref

uses to acc ept responsibility for her actions i s unwar rante d and irresponsible.” ¶ 54 On the basis of the rec ord bef o re u s , we cannot rea listi cally say that the State, at the critica l time, might have ag ree d to supervision. This court, in People v. Rivera
, 227 I ll. 2d 1, 26-27 (2007), was able to examine the record on appea l and ascertain that a mul tifactor Apprendi violation was harmless beyond a rea sonable doubt. We wer e able t o s ay with

cer tainty what 12 rational jurors would have f ound. Simi larly , looking at this record, there is no doubt what the State’s position would have been, with respe ct to supervision, at any point after D anielle r ejec ted the State’s f avora ble plea of

fer

. ¶ 55 Wit h respe ct to he r re jection of that plea offe r, Danielle claims she was prejudice d as a result of he r attorne y ’s supposed def iciency beca use he failed to inform her that she risked losing the opportunity to obtain a continuance under supervision by reje cting the S t ate’s Attorney ’s plea offe r. I n addition, she opines, beca use of her attorney ’s misapprehe nsion of the law, he failed to reque st supervision afte r proce eding to trial, but befor e a finding of g uilt

was enter ed. As a result, Danielle conclude s, she lost the opportunity to obtain a continuance under supervision. Danielle asser ts that, had her attorney known that a continuance under supervision was statutorily prec luded once a finding of g uilt is enter ed, an d h ad he communicated that to her, she would have acc epted the State’s p l ea o ff er and not g one to

-14-trial. Or, if she proce eded to trial, she would have reque sted supervision befor e a finding was

enter ed. ¶ 56 As previously indicated, it would not ha ve mattere d had counsel reque sted supervision
at the critica l time. As for Danielle’ s claim that counsel fai l ed t o inform her of the risk inhere nt in reje cting the State’s plea offe r, and her asser tion that, had he communicated the risk to her, she would have acc epted the offe r, I would note there is not one shred of evidenc e in this rec ord to support either allegat i o n

. Ye t , this court takes that bare claim as an established fact (see supra ¶¶ 33, 38), and uses i t as part of t he ju stification for its rema nd “for a new first-phase hear ing” ( supra ¶ 38). This court’s assumptions are unwar rante d. There is no rea son that Danielle should be aff orded the opportunity to start from scratch, or that her adjudicator

y hear ing, which was appar ently devoid of err or, should be s imply nullified. ¶ 57 At that hear ing, the victim testified that she was alone when she and a g irl in Danielle’ s g roup “ha d wo rds.” That g irl hit the victim in the fac e. The victim stated that a near by

secur ity g uard stepped in to separ ate t h e gi rl s

— a fac t corr oborate d by I van Nava rro, the

secur ity g uard. Whil e the g uard was in betwee n the two g irls, Danielle interjec ted herse lf into the situat i o n

. T h e victim testified that Danielle punched her three or four times befor e Da n i el le was pulled awa y by another secur ity g uard. Even then, acc ording to the v i ct i m , Danielle “ g ot loose and then the othe r sec urity g uard ha d to tackle he r.” ¶ 58 I van Nava

rro testified that the g irl in D anielle’ s g roup swung at the victim f irst, a nd he stepped in to separ ate them. He then saw D anielle throw punches at the victim. He did not see the victim hit Danielle or provoke her. ¶ 59 Danielle te stified in her own be half, c laiming se lf-def ense. ¶ 60 The trial court rejecte d that claim, not ing that Danielle came “from being th re e people back” to the fore front of the alterc ation, at which time she punched the victim. The court considere d the secur ity g uard a “cr ucial witness,” and observe d that he corr oborate d critica l
aspec ts of the victim’s testimony

. The court conclude d: “I do not buy into the aff irmative defe nse in this case of self-de fense .” The trial judge stated he did not bel i eve Danielle’ s story —the judg e thoug ht she lied. ¶ 61 I see nothing in this scena rio, or this rec ord, that wo u l d war rant the subversion of our jurisprudenc e in order to acc ommodate Danielle; howeve r, t h e m ajority has g one to g reat leng ths to do so. ¶ 62 What the majority is r eally doing—w ith no meaning ful analy sis or citation to pe rtinent authority —is saying that Danielle was prejudice d solely by loss of standing to raise an issue

conce rning the s tatute’s constit utionality
, beca use i t is otherwise clear the State would not have consente d to a continuance under supervision even if Dan i el l e’s counsel had timely broac hed that subject. The court is saying that counsel’s supposed incompetenc e resulted in forf eiture of an opportunity to argue a constitutional issue befor e this court —counsel has alre ady done so succe ssfully in the circ uit court—that may or may not have merit. That is the prejudice . That is the holding tha t parties may

cite henc efor

th. ¶ 63 Icannot subscr ibe to that portion of the majority opinion.

-15-