ILLINOIS OFFICIAL REPORTS

Appellate Court

In re Gennell C., 2012 IL App (4th) 110021

Appellate Court

Caption

In re: GENNELL C., a Minor, THE PEOPLE OF THE STATE OF

ILLINOIS,Petitioner-Appellee, v.GENNELLC.,Respondent-Appellant.

 District & No. Fourth District

Docket No. 4-11-0021

Filed May 3, 2012

Held

(Note: This syllabus

constitutes no part of

the opinion of the court

but has been prepared

by the Reporter of

Decisions for the

convenience of the

reader.)

Where the trial court accepted respondent’s admission to theft over $300

and dismissed other charges before adjudicating her a delinquent minor

and sentencing her to an indeterminate term in the Department of

Juvenile Justice that would terminate in five years or on her twenty-first

birthday, whichever came first, the trial court’s denial of her motion to

reconsider her sentence and impose a community-based sentence was

affirmed, since respondent never asked for a review of her commitment

based on new evidence and a request for a change in custody under

section 5-745(3) of the Juvenile Court Act is not implicit in a request to

reconsider a sentence.

Decision Under 

Review

Appeal from the Circuit Court of Champaign County, No. 10-JD-196; the

Hon. Harry E. Clem, Judge, presiding.

Judgment Affirmed.
Counsel on

Appeal

Michael J. Pelletier, Karen Munoz, and Catherine K. Hart, all of State

Appellate Defender’s Office, of Springfield, for appellant.

Julia Rietz, State’s Attorney, of Urbana (Patrick Delfino, Robert J.

Biderman, and Aimee Sipes Johnson, all of State’s Attorneys Appellate

Prosecutor’s Office, of counsel), for the People.

Panel PRESIDING JUSTICE TURNER delivered the judgment of the court,

with opinion.

Justices Pope and Knecht concurred in the judgment and opinion.

OPINION

¶ 1 In September 2010, the State filed a petition for adjudication of wardship, alleging

respondent, Gennell C. (born in March 1996), was a delinquent minor because she

committed residential burglary (720 ILCS 5/19-3(a) (West 2008)). That same month, the

State filed a supplemental petition, asserting respondent committed theft over $300 (720

ILCS 5/16-1(a)(1)(A), (b)(4) (West Supp. 2009)). In September 2010, pursuant to a plea

agreement, respondent admitted committing theft over $300, and the court dismissed the

residential-burglary count and petitions against respondent in other cases. The trial court

accepted respondent’s admission and adjudicated respondent a delinquent minor. After an

October 2010 dispositional hearing, the court made respondent a ward of the court and

sentenced her to an indeterminate term in the Department of Juvenile Justice (DOJJ) that

would automatically terminate in five years or upon respondent’s twenty-first birthday,

whichever came first. Respondent filed a motion to reconsider her sentence, which the court

denied.

¶ 2 Respondent appeals, claiming the trial court erred by denying her motion to reconsider

her sentence. We affirm.

¶ 3 I. BACKGROUND

¶ 4 The State’s September 2010 adjudication petition and supplemental petition in this case

were based on respondent’s actions on August 23, 2010. At the time of the adjudication

petition’s filing, respondent had another petition for adjudication of wardship pending. In re

Gennell C., No. 10-JD-187 (Cir. Ct. Champaign Co.). The State later filed two petitions for

indirect criminal contempt of court against respondent based on her failure to abide by the

conditions of her release from custody (Nos. 10-MR-659, 10-MR-727).

¶ 5 On September 24, 2010, pursuant to a plea agreement, respondent admitted committing

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theft over $300, and the State moved to dismiss the other wardship petition, the indirectcriminal-contempt petition in case No. 10-MR-659 and agreed not to file charges based on

Rantoul police report No. 10-6134. The trial court accepted respondent’s admission and

adjudicated her a delinquent minor.

¶ 6 At the October 27, 2010, dispositional hearing, the trial court made respondent a ward

of the court, committed her to DOJJ for an indeterminate term not to exceed five years or her

twenty-first birthday, and appointed DOJJ’s Director as respondent’s legal custodian. The

court set the review of the commitment order for March 23, 2011, and required DOJJ to file

a written report of its examination of respondent by March 10, 2011. At the State’s request,

the court also dismissed the last pending contempt petition in case No. 10-MR-727.

¶ 7 On November 18, 2010, respondent filed a motion to reconsider her sentence, asserting

(1) her sentence was excessive; (2) the trial court erred by considering she had been charged

with a more serious offense; (3) the court erred by considering her prior police contacts; (4)

her sentence did not keep with her criminal history, family situation, and economic status for

many enumerated reasons; and (5) her sentence did not keep with the alternatives available

to the court to assist respondent with her rehabilitation. The prayer for relief requested the

court “reconsider the Respondent Minor’s sentence and enter a community-based sentence.”

The motion only addressed matters before the court at sentencing and did not present any

new evidence.

¶ 8 On December 21, 2010, the trial court held a hearing on respondent’s motion to

reconsider her sentence. Respondent’s counsel began her argument by stating the following:

“And in support of our motion we’re asking that the Court reconsider its sentence and

sentence [respondent] to a community-based sentence.” Counsel noted respondent had no

prior adjudications, her offense was nonviolent, respondent showed a desire to work with the

Champaign County Mental Health Center, and respondent’s mental-health and substanceabuse issues could be best addressed in the community. Counsel again asked the court to

reconsider respondent’s sentence and sentence her to a community-based sentence.

Respondent’s counsel then stated the following: “Additionally, your Honor, [respondent] did

bring documents from the [DOJJ] which show that she has gotten off to a good start, and she

did want the Court to see them ***.” The State responded the documents submitted that day

were positive but should be considered at the March hearing when respondent’s commitment

would be reviewed. The court denied the motion to reconsider and remanded respondent to

DOJJ to continue serving the sentence previously imposed.

¶ 9 On January 5, 2011, respondent filed a timely notice of appeal from the trial court’s

dispositional order and denial of respondent’s motion to reconsider in compliance with

Illinois Supreme Court Rule 606 (eff. Mar. 20, 2009). See Ill. S. Ct. R. 660(a) (eff. Oct. 1,

2001) (providing the rules applicable to criminal cases govern appeals from final judgments

in delinquent-minor proceedings, unless specifically provided otherwise). Since the

dispositional order in a juvenile delinquency proceeding is a final order (In re Justin L.V.,

377 Ill. App. 3d 1073, 1079, 882 N.E.2d 621, 626 (2007)), we have jurisdiction over this

appeal under Illinois Supreme Court Rule 660(a) (eff. Oct. 1, 2001).

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¶ 10 II. ANALYSIS

¶ 11 While respondent labels her argument as one challenging the trial court’s denial of her

motion to reconsider her sentence, she actually asserts the court erred by denying her request

for a change in her sentence under section 5-745(3) of the Juvenile Court Act of 1987

(Juvenile Act) (705 ILCS 405/5-745(3) (West 2010)). The parties assert the properstandard

of review is the abuse-of-discretion standard since respondent is appealing the denial of her

motion to reconsider. See In re Jermaine J., 336 Ill. App. 3d 900, 902, 784 N.E.2d 428, 429

(2003). The abuse-of-discretion standard also applies to a trial court’s selection of a

disposition. See In re Seth S., 396 Ill. App. 3d 260, 275, 917 N.E.2d 1182, 1194 (2009).

Thus, if the court actually considered a request for a change in custody, the abuse-ofdiscretion standard would apply to its decision on the request. “A trial court abuses its

discretion onlywhere its ruling is arbitrary, fanciful, or unreasonable, or where no reasonable

person would take the view adopted by the trial court.” In re A.W., 397 Ill. App. 3d 868, 873,

921 N.E.2d 1275, 1279 (2010). To the extent respondent’s argument on appeal raises a

question of law, our review is de novo. See In re Samantha V., 234 Ill. 2d 359, 369, 917

N.E.2d 487, 494 (2009).

¶ 12 Section 5-745(3) of the Juvenile Act (705 ILCS 405/5-745(3) (West 2010)) provides, in

pertinent part, as follows:

“The minor or any person interested in the minor may apply to the court for a change in

custody of the minor and the appointment of a new custodian or guardian of the person

or for the restoration of the minor to the custody of his or her parents or former guardian

or custodian. *** No legal custodian or guardian of the person may be removed without

his or her consent until given notice and an opportunity to be heard by the court.”

(Emphasis added.)

¶ 13 As respondent notes, this court has addressed section 5-745(3) of the Juvenile Act in the

context of a review hearing. See Justin L.V., 377 Ill. App. 3d at 1081, 882 N.E.2d at 628. In

that case, we noted the following:

“[S]ection 5-745(3) contains no requirement as to the form or substance of the

application for a change in custody, nor does the section indicate what standard the trial

court should apply in deciding whether to grant such an application. When a court

appoints [DOJJ] the guardian of the minor following delinquency proceedings, as the

trial court did here, section 5-745(3), therefore, contemplates that the minor or any

interested person may move the court to return guardianship to his parents and,

necessarily, vacate [DOJJ’s] guardianship of the minor.” (Emphasis added.) Justin L.V.,

377 Ill. App. 3d at 1081, 882 N.E.2d at 628.

¶ 14 Here, the record contains no evidence respondent expressly moved or applied for a

change in custody in the trial court under section 5-745(3) of the Juvenile Act. In her

November 2010 postsentencing motion, respondent asked the trial court to reconsider her

sentence and give her a community-based sentence. In her motion, respondent only alleged

errors the court made in sentencing her to DOJJ and did not present any new evidence. At

the December 2010 hearing on the postsentencing motion, respondent’s counsel again

indicated respondent was asking the court to reconsider its sentence and sentence her to a

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community-based sentence. Counsel also again raised errors in sentencing respondent to

DOJJ. After asking for reconsideration, counsel simply noted respondent wanted to make the

court aware of the DOJJ documents, which showed she had gotten off to a good start. The

prosecutor noted the documents were more appropriate for the March 2011 review hearing.

The court denied the motion to reconsider, noting, inter alia, DOJJ had sent a “preliminary

report” indicating respondent was receiving the services she needed and cooperating with the

efforts of those trying to help her. The court noted it expected to see further positive

information in March 2011 and looked forward to returning her to the community at that

time. Accordingly, the record shows respondent was arguing the court (1) erred bysentencing

her to DOJJ and (2) should have originally sentenced her to a community-based sentence,

not the court should conduct a review of its DOJJ commitment based on new evidence as

respondent now suggests.

¶ 15 Respondent also appears to argue the request for a change in custody is inherent in a

motion to reconsider the sentence under the Juvenile Act. Even in a delinquency case, “[t]he

purpose of a motion to reconsider the sentence is not to conduct a new sentencing hearing

but, rather, to review the appropriateness of the sentence imposed and correct any errors.”

Jermaine J., 336 Ill. App. 3d at 902-03, 784 N.E.2d at 430. Moreover, the language of

section 5-745(3) of the Juvenile Act (705 ILCS 405/5-745(3) (West 2010)) makes it clear (1)

the person seeking the change in custody must actively seek it by using the term “apply” and

(2) the party that has custody of the minor must have the opportunity to be heard. See also

Justin L.V., 377 Ill. App. 3d at 1081, 882 N.E.2d at 628 (where the reviewing court

highlighted the fact the respondent’s counsel made an oral motion to vacate the

guardianship). In Jermaine J., 336 Ill. App. 3d at 903, 784 N.E.2d at 430, the Third District

rejected a juvenile respondent’s argument the trial court erred byfailing to order and consider

an updated social investigation report prior to ruling on his motion to withdraw and

reconsider because of the underlying philosophy in juvenile proceedings. The court found

a motion to reconsider was not a new commitment hearing that required a new social

investigation report. Jermaine J., 336 Ill. App. 3d at 903, 784 N.E.2d at 430. In support of

his argument, the respondent had noted section 5-745 provided for periodic evaluations after

the minor’s commitment. Jermaine J., 336 Ill. App. 3d at 902, 784 N.E.2d at 430. Thus, we

disagree with respondent a motion to reconsider a sentence in a delinquency proceedings

includes a request for a change in custody under section 5-745(3) of the Juvenile Act.

¶ 16 Since respondent did not request a change in custody under section 5-745(3) and a

request for a change in custody is not implicit in a request to reconsider the sentence, the trial

court did not err by refusing to reevaluate respondent’s DOJJ commitment.

¶ 17 III. CONCLUSION

¶ 18 For the reasons stated, we affirm the Champaign County circuit court’s judgment.

¶ 19 Affirmed.

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