2014 IL App (1st) 130241

No. 1-13-0241

Fifth Division

May 30, 2014

______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

______________________________________________________________________________

In re HENRY P., a Minor )

)

(The People of the State of Illinois, )

Plaintiff-Appellee )

)

v. )

)

Henry P., a Minor )

Defendant-Appellant). )

)

Appeal from the Circuit Court

of Cook County.

No. 12 JD 00015

The Honorable

Lori M. Wolfson,

Judge, presiding.

______________________________________________________________________________

 PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion.

 Justices McBride and Taylor concurred in the judgment and opinion.

OPINION

¶ 1 Defendant, Henry P., is a 17-year-old transgender male who now identifies herself as a 

female named “Carey.”1 Following a bench trial in juvenile court, defendant was adjudicated 

delinquent for robbery, armed robbery, aggravated robbery, theft from person, battery, and 

aggravated battery, and the trial court sentenced defendant to the mandatory minimum term 

of five years’ probation, which required defendant to reside at Lawrence Hall Youth Services 

(Lawrence Hall), a residential facility where defendant had been placed by the Department of 

 1 In this appeal, we will refer to defendant by her identified gender.
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Children and Family Services (DCFS). Defendant later pled guilty to violating her probation 

by becoming absent without leave (AWOL) when she left Lawrence Hall without permission 

on four occasions in July 2012, and the trial court sentenced her to eight days in jail, for 

which she received credit. Defendant subsequently pled guilty to violating her probation a 

second time in November 2012 when she went AWOL twice and failed to charge her 

electronic monitoring bracelet on six different occasions. Prior to sentencing, the State 

alleged that defendant violated her probation a third time by going AWOL on several 

additional occasions. The trial court never arraigned defendant for her third probation 

violation, and it instead revoked defendant’s probation and committed her to the Department 

of Juvenile Justice (DJJ) for her second probation violation.

¶ 2 On this appeal, defendant first raises a constitutional claim, arguing that the minimum 

mandatory sentence of five years’ probation violates the equal protection clause of the United 

States and Illinois Constitutions, and as a result, we should vacate defendant’s order of 

commitment to the DJJ, as well as her original five-year probation sentence, and remand this 

case for resentencing. Defendant next directly appeals her commitment to the DJJ, arguing 

that the trial court erred as a matter of law, or alternatively abused its discretion, when it 

revoked her probation and committed her to the DJJ without considering a less-restrictive 

alternative to a secure confinement sentence as required by the Juvenile Court Act of 1987 

(Juvenile Court Act) (705 ILCS 405/5-750(1)(b) (West 2012)). Finally, defendant argues that 

her convictions of aggravated robbery, robbery, theft from person, and battery should be 

vacated since those surplus convictions violate the one-act, one-crime doctrine. For the 

following reasons, we remand for resentencing.

¶ 3 BACKGROUND

¶ 4 There are two different incidents that resulted in criminal charges against defendant: the 

first incident allegedly took place on October 8, 2011, and the second incident allegedly took 

place the following day, on October 9, 2011. Defendant was charged with attempted robbery 

resulting from the October 9, 2011, incident and later pled guilty. While defendant awaited 

sentencing in that case, she was charged in the instant case with robbery, armed robbery, 

aggravated robbery, theft from person, battery, and aggravated battery resulting from the 

October 8, 2011, incident. At her arraignment in the instant case, the trial court made 
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findings of probable cause and urgent and immediate necessity and ordered defendant held in 

custody until trial.

¶ 5 I. Defendant’s Prior Conviction

¶ 6 Prior to sentencing for defendant’s October 9, 2011, attempted robbery conviction, 

defendant’s probation officer, Andrea Korte, executed a presentence investigation report 

(PSI) on December 30, 2011. Korte stated in the PSI that defendant was born as “Henry” on 

June 5, 1996. DCFS had its first contact with defendant after she was treated at Providence 

Hospital for burns on her thighs at the age of three, and defendant’s mother was later 

convicted of assault in relation to that incident. Defendant was temporarily placed in the 

custody of a relative and later returned to her mother. At the age of four, defendant was 

sexually assaulted in her mother’s house by an older male cousin, who was subsequently 

convicted and sentenced to prison for that offense.

¶ 7 Korte stated that, on June 21, 2001, when defendant was five years old, a public aid 

worker notified DCFS that defendant’s mother brought defendant to a public aid office in a 

neglected state. During the visit, defendant’s mother admitted to tying defendant’s hands 

with a belt, and defendant stated that her mother tied her hands with a rope and hit her legs 

with a belt. The PSI indicates that defendant’s mother was “indicated” for environment 

neglect, tying, and closing confinement, and DCFS intended to place defendant in the 

custody of the same relative that cared for her previously but was unable to do so when a 

background check revealed that the relative was married to a sex offender. On June 28, 2001, 

DCFS took protective custody of defendant and became her legal guardian the following 

year. From June 2001, until December 30, 2011, defendant was placed in different living 

environments 22 times, including 12 hospitalizations, many for psychiatric care. Defendant 

was last hospitalized for self-harm in May 2011.

¶ 8 The PSI noted that defendant first began to identify as a female in early 2011 at the age of 

15, and she began to wear a wig and makeup and augment her chest with breast inserts. 

Defendant told Korte that she has taken hormone pills in the past and that she intends to have 

gender reassignment surgery in the future. Defendant currently identifies herself by the name 

“Carey.” Although defendant’s mother is supportive of defendant’s male-to-female 

transition, her father is not, which has hurt defendant’s feelings and further strained their 

relationship. The male cousin who previously assaulted defendant is due to be paroled, and 
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his imminent release distresses defendant and gives her frequent nightmares. Defendant told 

her parole officer that she “became Carey” in order to protect herself from her cousin. 

Defendant also stated that she suffers from depression episodes, during which she frequently 

goes “AWOL” so that she can return to her unit and “start over.” Defendant has been 

diagnosed with major depressive disorder and posttraumatic stress disorder, in addition to a 

stuttering problem and significant allergies. Defendant regularly met with her social worker, 

maintained a good relationship with her teachers, and received speech therapy for her 

stuttering problem, and she takes medication for her depression.

¶ 9 The PSI indicated that DCFS placed defendant in Lawrence Hall in August 2010, and she 

was transferred from the Graves Unit at Lawrence Hall to the Ewen Unit in November 2010 

“to more adequately support/address [her] gender identification issues,” but she transferred 

back to the Graves Unit because she had difficulties with staff members. Defendant’s 

adjustment to Lawrence Hall was “mixed,” but in early 2011, she demonstrated 

“considerable progress” in addressing her issues and managing her behavior. Defendant 

struggled to follow staff directives and went AWOL five times in December 2011. Defendant 

has several friends at Lawrence Hall, many of whom are transgender or gay. Defendant 

developed a “strong support network with various staff” at Lawrence Hall. Defendant 

recently began a relationship with a boyfriend who has aggression issues and is possibly 

involved in street gangs. Defendant denies that she is involved in street gangs or uses drugs 

or alcohol, and there is no evidence to suggest the contrary.

¶ 10 Korte stated that defendant also enrolled at Lawrence Hall Therapeutic Day School, 

which is located on the same premises as Lawrence Hall, and although she is supposed to be 

in tenth grade, she has not earned enough credits to advance past ninth grade. Defendant is 

failing all of her classes, partially because she is consistently an hour late to school due to the 

fact that it takes her two hours to dress as a female in the morning. Currently, defendant’s 

biggest issues are going AWOL and attending school on time. Korte noted that, “[f]or some 

time, [DCFS’s] plan [had] been to transition [defendant] to a less restrictive environment,” 

specifically, a group home followed by transitional living. Defendant was scheduled to

“stepdown to a group home setting at the end of December of 2011,” but that was delayed 

until January 31, 2012.
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¶ 11 Korte noted that the parties reached an agreement of one year of probation for the 

October 9, 2011, offense, in which defendant allegedly threw a pumpkin at a pedestrian and 

attempted to steal his cellular telephone. Defendant told Korte that she was present during the 

attempted robbery, but she denied participating in the offense. Defendant indicated that she 

understands right from wrong and the consequences of her actions, but Korte noted that she 

still struggles with impulsive behavior, such as going AWOL, which was not an issue when 

she was placed on home confinement. Korte agreed with the parties’ arrangement and further 

recommended that defendant be placed on electronic monitoring for 30 days to emphasize 

the need for her to refrain from going AWOL.

¶ 12 On January 26, 2012, the trial court made best interest and wardship findings and 

accepted the parties’ agreement that defendant be placed on probation for one year for the 

October 9, 2011, armed robbery. The trial court also ordered defendant to: (1) complete 30 

hours of community service; (2) attend a community impact panel; (3) arrive at school on 

time everyday; and (4) not involve herself with gangs, guns, or drugs. The trial court then 

released defendant to Lawrence Hall on an electronic monitoring bracelet pending her trial 

on the charges in the instant case. After sentencing, the trial court advised defendant that, if 

she left Lawrence Hall without permission or did not charge her bracelet, then she would be 

returned to custody until her trial. Defendant later received a positive report of compliance 

and the trial court granted defendant’s motion to vacate the electronic monitoring order. The 

trial court again advised defendant that, if she were to disobey Lawrence Hall’s rules and 

curfew, then she would be returned to custody until her trial.

¶ 13 II. Suppression Hearing

¶ 14 Prior to her trial in the instant case, defendant filed a motion to suppress the victim’s 

identification. At the suppression hearing on March 21, 2012, Detective Jennifer Fowler, the 

defense’s only witness, testified that she was assigned to investigate the October 8, 2011, 

assault and robbery of Stephen Heasley. Fowler learned that Heasley previously described 

two of the assailants as black “trans” males, and that defendant and Shaundell H. (also 

known as “Ashley”) were suspects. Fowler composed a six-person photographic lineup that 

included defendant, Ashley, and four other male nonsuspects and invited Heasley to the 

police station on October 21, 2011, to review the photo array and identify his attackers. 

Fowler acknowledged that, although defendant and Ashley appeared to be wearing women’s 
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blouses in their photographs, they were not necessarily the only two suspects in the photo 

array that appeared to be transgender. Heasley studied the photo array for 20 minutes and 

used napkins to cover each person’s hair and clothing, one at a time. Heasley ultimately 

identified defendant and Ashley as the assailants.

¶ 15 The photo array was entered into evidence at the suppression hearing, and a photocopy 

appears in the appellate record. Each of the suspects in the photo array has long hair, but four 

of the suspects have dreadlocks, while defendant and Ashley appear to be wearing wigs. 

Also, defendant and Ashley are the only two suspects in the photo array that appear to be 

wearing women’s blouses.

¶ 16 The trial court denied defendant's motion to suppress, and the case proceeded to trial that 

same day.

¶ 17 III. Trial

¶ 18 At trial, the parties stipulated that, if called as a witness, Detective Fowler would testify 

consistent with her testimony at the suppression hearing.

¶ 19 Stephen Heasley testified that, at 4 a.m. on October 8, 2011, he was walking west on 

Belmont Avenue toward the L station when he was approached by a group of four males. 

Heasley described two of the males as “dressed in female clothing,” one of whom was 

defendant, and Heasley identified defendant in court. Defendant and the other male in female 

clothing blocked Heasley’s path and demanded his cellular telephone. Heasley did not react 

at first, so defendant sprayed Heasley in the face with pepper spray and hit Heasley on his 

neck, head, and side of his body. Although the pepper spray hurt Heasley’s eyes, it did not 

affect his eyesight. Defendant again demanded Heasley’s cellular telephone, using profanity, 

but Heasley crouched down and held onto his phone. The others in the group joined 

defendant in beating Heasley and they ultimately recovered two cellular telephones from 

Heasley before fleeing. The attack left Heasley “in shock and traumatized,” and he cried “a 

lot” when the police arrived shortly thereafter.

¶ 20 Heasley went to the police station on October 21, 2011, and viewed two six-person photo 

arrays. Only one of the photo arrays contained photographs of defendant and Ashley. 

Heasley reviewed the photo arrays for 20 to 30 minutes, during which time he placed four 

napkins over the individual photographs to cover each suspect’s hair and clothing so that he 

could focus on their faces. Heasley ultimately identified defendant and Ashley as his 
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attackers. Heasley denied that defendant and Ashley appeared to be the only transgender 

suspects in the photo array.

¶ 21 Officer Nyvea Rosado testified that she responded to the robbery on October 8, 2011. She 

interviewed Heasley at the crime scene, and Heasley told her that he was attacked by a group 

of “black men and women,” some of whom appeared to be “trans.” Heasley told Rosado that 

his assailants first sprayed him with mace, which left his eyes swollen and teary, and then 

beat Heasley before taking his two cellular telephones.

¶ 22 The State rested after Rosado’s testimony, and the trial court denied the defense’s motion 

for a directed finding. Defendant exercised her right not to testify or present evidence, and 

the trial court entered a finding of guilty, stating that “[a]ll counts will merge for the purpose 

of sentencing.” Defendant was held in custody until sentencing. In the trial order, the trial 

court indicated that defendant was found guilty of “all” counts in the petition.

¶ 23 IV. Sentencing

¶ 24 On March 23, 2012, probation officer Korte prepared a supplemental PSI, which states 

that “[defendant] is scheduled to transition to a lesser-restrictive program within the next 

month or so” and “has been matched with three possible placements,” which are: (1) 

Rosenberg Home in West Rogers Park; (2) Larkin Home in Elgin; and (3) Jarvis Home, the 

location of which was not specified. The supplemental PSI notes that there have been no 

recent issues or incident reports involving defendant, and that defendant has been compliant 

with her treatment, counseling, and taking prescribed medications. Korte noted that, since 

defendant was placed on probation, she was making a concerted effort to arrive at school on 

time.

¶ 25 Korte also notes that, although defendant did not testify at trial, she claims that she does 

not recognize Heasley and that she does not recall ever using pepper spray. Although 

defendant has a lengthy history of going AWOL, she has not done so since she was taken off 

electronic monitoring prior to trial. Defendant told the probation officer that she has a better 

understanding of what it means to be a victim and that she does not intend to harm anyone in 

the future. Defendant also indicated that she intends to obey the conditions of her probation 

and that she does not want to spend any more time in custody.

¶ 26 Korte concludes the supplemental PSI with a recommendation that defendant be placed 

on the mandatory term of five years of probation, which is the mandatory minimum term for 
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a forcible felony committed by a juvenile. Korte also recommends defendant be ordered to 

complete 50 hours of community service and attend a victim impact panel and community 

impact panel program.

¶ 27 At the sentencing hearing on March 27, 2012, defendant exercised her right not to present 

any witnesses, and she did not make a statement in allocution. After considering factors in 

aggravation and mitigation, the trial court made findings of best interest and wardship and 

sentenced defendant to 5 years of probation with conditions of 40 hours community service, 

mandatory school, attend a violence prevention program and community impact panel, obey 

DCFS and Lawrence Hall rules, and complete any required counseling. The probation order 

required defendant to reside in the home where she was placed by DCFS and to obey “all 

reasonable rules and regulations of such residence,” and that defendant shall not “leave such 

residence overnight for any purpose” without “express permission.” The trial court advised 

defendant that she would be placed in custody, “probably *** for years,” if she violates her 

probation. The trial court then terminated probation on defendant’s October 9, 2011, robbery 

conviction, and defendant was returned to Lawrence Hall. The case was set for a June 19, 

2012, progress report.

¶ 28 On June 19, 2012, Korte informed that trial court that defendant was hospitalized at a 

psychiatric hospital for a week because she attempted to overdose on her medications. Korte 

also noted that there was some “drama” in defendant’s family, but that she has been doing 

well since then, including attending summer school and cooperating with her therapist. Korte 

also stated that defendant was set to go to Rosenburg Home for girls as their first transgender 

client and that they were waiting for a room to become available. The trial court continued 

the case for an August 14, 2012, progress report.

¶ 29 V. First Petition for Supplemental Relief

¶ 30 The State filed a petition for supplemental relief on July 10, 2012, which alleged in count 

I that defendant left Lawrence Hall without permission on July 3, 5, 6, and 8; and alleged in 

count II that defendant: (1) refused to take her medication on July 7 and 8; (2) destroyed 

property on July 5 and 6; and (3) became aggressive with staff on July 3. At the July 17, 

2012, hearing on the State’s petition, the trial court asked defendant what happened, and she 

explained that she was going through issues with her family. Defendant’s probation officer 

advised the court that defendant is on a waiting list to be placed in the Rosenberg Home, 
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which is an all-girls facility. The probation officer explained that defendant already toured 

the home and had a transition meeting with a counselor there, and that defendant liked the 

girls that she met at the home. The trial court stated that it would “take this as a bad week” 

and not place defendant in custody since she had been doing well before the first week of 

July 2012. Although the trial court declined to arraign defendant on the charges at that time, 

it placed the State’s petition in the court file and expressed hope that defendant would 

recommit herself to probation so that petition would later be withdrawn. The case was then 

continued for a September 11, 2012, progress report.

¶ 31 The State did not withdraw the petition and defendant was arraigned on September 11, 

2012. The trial court stated that it “hop[ed] that things would get better. It seems like they’re 

not.” Probation officer Korte advised the trial court that they did not have a definite date for 

defendant’s placement change, but that they would have a better idea by September 27, 2012. 

Korte explained that, while most girls at Rosenberg Home live with a roommate, defendant 

requires a private room for herself, which means that she is waiting for two girls to leave the 

home for a room to become available. Defendant was then returned to Lawrence Hall on 

electronic monitoring pending the hearing for defendant’s violation of probation. The trial 

court advised defendant that it would place her in custody for 30 days if she violated the 

electronic monitoring order, and it set the case for status on October 9, 2012.

¶ 32 Defendant subsequently removed the electronic monitoring bracelet on September 17, 

2012, and left Lawrence Hall without permission, and the trial court issued a warrant for her 

arrest. The warrant was executed the next day, and defendant was brought before the trial 

court. During the proceeding, the trial court asked parole officer Korte about the timeframe 

for defendant’s placement in Rosenberg Home, and Korte stated, “She may be blowing that. I 

mean, they already had concerns about the AWOL and, of course, there’s the pending thing. I 

mean, [defendant’s] on five years’ probation, hasn’t even made it through a year yet.” The 

trial court asked defendant if she had been taking all of her medications and defendant 

answered yes. The case was continued until September 25, 2012, and the trial court ordered 

that defendant be held in custody until then.

¶ 33 On September 25, 2012, defendant pled guilty to count I of the supplemental petition for 

violating her probation when she left Lawrence Hall on numerous occasions in July 2012. At 

the hearing, defendant’s probation officer told the trial court that, at that time, Rosenberg 
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Home was most likely “off the table *** not because of [defendant] per se,” but because the 

Rosenberg Home resident “whose room [defendant] was going to be taking” was no longer 

planning to leave, which meant that there was no vacancy for defendant to fill for the 

foreseeable future. However, Korte noted that “there are two other homes through 

Rosenberg” that might provide a placement for defendant, and if not, then other placement 

options will be considered. The trial court sentenced defendant to time served, which was 

eight days, and defendant was released back to Lawrence Hall on electronic monitoring. The 

case was then continued for an October 23, 2012, progress report.

¶ 34 VI. Second and Third Petitions for Supplemental Relief

¶ 35 The State filed a second petition for supplemental relief on October 23, 2012, alleging 

that defendant failed to charge her electronic monitoring bracelet on six occasions between 

October 12, 2012, and October 17, 2012, and that she also removed her bracelet and went 

AWOL twice during that time. Korte informed the trial court that defendant stated that she 

left Lawrence Hall without permission on one occasion because her father had been 

hospitalized, and she left on another occasion because one of her close friends went missing 

and she “needed to address that issue.” Korte also stated that, at that time, there were no 

pending placements for defendant and that she had no pending interviews. Defendant was 

held in custody until she was arraigned on the second supplemental petition the next day, and 

defendant remained in custody until she pled guilty to her second probation violation on 

November 6, 2012. The trial court then released defendant back to Lawrence Hall and 

continued her case for sentencing on December 11, 2012. The trial court decided not to place 

any additional restrictions on defendant because it wanted to observe how she did without 

them, but the trial court warned defendant that it would consider a jail sentence if she were to 

go AWOL again.

¶ 36 Prior to sentencing, Korte prepared another supplemental PSI, which was filed on 

November 6, 2012. The PSI stated that defendant has resided in the Randell Unit at 

Lawrence Hall since August 2012, pending her transition to Aggregate Foster Care, which is 

a group home setting with supervision of staff acting as foster parents rather than having a 

different staff around the clock. The original plan was to transition defendant to Rosenberg 

Home for girls, but that plan “fell through at the end of September [2012] when it was 

determined that there would not be an opening in the near future.” Defendant was then 
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matched for an Aggregate Foster Care placement, and the intake coordinator was in the 

process of arranging a meeting with defendant to discuss their program, although no 

admission date had been set yet. Korte noted that defendant was ready to move on to a new 

facility, and that defendant’s therapist, whom she had a very strong attachment to, left in 

October 2012. Also defendant’s boyfriend recently convinced others to physically harm 

defendant on two occasions, one of which took place at Lawrence Hall.

¶ 37 Korte also stated that, since defendant was placed on probation in March 2012, she has 

only been brought to court for “technical violations.” Korte noted that there were no recent 

issues with defendant other than arriving at school on time, and defendant was regularly 

meeting with her new social worker. The probation officer stated that Lawrence Hall was 

“was no longer an appropriate placement” for defendant, and she hoped that defendant would 

receive a new DCFS placement quickly because defendant would “do much better in a new 

placement.” Korte stated that a commitment to DJJ was not warranted at that time and 

recommended defendant be sentenced to time served and “given another chance at 

probation.”

¶ 38 On November 20, 2012, the State filed a third petition for supplemental relief, claiming 

that defendant left Lawrence Hall without permission on eight separate occasions from 

November 8 through November 19, 2012. The trial court issued a warrant for defendant’s 

arrest on November 29, 2012. Defendant was arrested and brought before the trial court the 

next day, and the trial court advised her that it would not hold a hearing on the third petition 

for supplemental relief since she had not been sentenced yet on the second petition, which 

was set for December 11, 2012. The trial court ordered defendant held in custody until her 

sentencing hearing on the second petition for supplemental relief.

¶ 39 Prior to sentencing on the State’s second petition, another PSI was filed on November 30, 

2012. The PSI stated that defendant went AWOL 11 times in November 2012, and that she 

also skipped school on 5 occasions. Korte stated that, although defendant’s behavior is not 

criminal in nature, she is “concerned” about whether defendant engages in dangerous 

behavior when she goes AWOL. Korte noted that she warned defendant several times that 

she would be sentenced to jail if she violated her probation, but defendant did not seem to 

care about the potential consequences and was not making herself available to receive 
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services, such as medication. Korte concluded that she “cannot offer any other 

recommendation at this time other than a commitment to DJJ.”

¶ 40 The sentencing hearing for the State’s second petition for supplemental relief was held on 

December 11, 2012. At the hearing, defense counsel argued that defendant’s problems were 

the product of improper placement more than anything else, and that defendant was rejected 

by the last organization that interviewed her. Defense counsel argued that, given defendant’s 

special needs and concerns, the DCFS “failed [defendant] miserably in finding her an 

appropriate placement,” and that it would be unjust for defendant to go to prison for leaving 

Lawrence Hall since “everybody” acknowledges that Lawrence Hall is not the most 

appropriate place for her. Defense counsel also requested that, if the trial court committed 

defendant to the DJJ, then defendant should be brought back to the trial court for a 90-day 

progress report. The State did not object to defense counsel’s argument and offered no 

argument at the sentencing hearing. Prior to imposing a sentence, the trial court stated the 

following:

“The one thing that I do want to say about, and I’m -- as 

you know, not a fan of the -- what’s happening in terms of the 

Lawrence Hall population. At [sic] difficult that population is to 

put that population in an urban environment makes it even more 

difficult for anybody to succeed.

[Defendant] did have an opportunity to go to a great 

placement where they would address her transgender issues. They 

would be supportive of her. It was in a girl’s residential home, and 

you perhaps were not here at that time, [defense counsel], when 

that opportunity was given to her.

All right. It was very advance [sic] for DCFS to recognize 

[defendant’s] identity, and to put her in the place where she could 

assert herself as a female. It was because of her activities that she 

short-circuited that placement. So as much as I’m not a fan of 

certain aspects of her past placements, I do know she was given the 

opportunity if she could conform her being here to move to a safe, 
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appropriate, and nurturing environment, and it’s with great sadness 

that I’ve reached this point with you, great sadness.

This is violation number three [sic]. The problem is not just 

leaving Lawrence Hall. The problem is high risk behavior on the 

street, choosing to be a street-oriented person rather than a mature 

adult on your way to independence.

We’re going to continue to try to help you. DCFS will 

continue to try to work with you to find the right place, but there 

has to be a consequence. I have given you chance, after chance 

and, ultimately, chances do run out.

So with a sense of sadness, as I’ve said, [defendant], there 

will be a finding of best interest on the violation. The minor shall 

be sentenced to the Department of Corrections for her protection 

and the protection of the public.”

The trial court then revoked defendant’s probation and committed her to the DJJ. The trial 

court determined that the average guidelines determined that a term of imprisonment for 

armed robbery is 18 to 20 months, of which defendant received 66 days' credit.

¶ 41 In the commitment order, the trial court indicated that committing offense was a Class X 

armed robbery. The trial court checked the box indicating that defendant’s legal guardian or 

custodian is “unfit or unable, for some reason other than financial circumstances alone, to 

care for, protect, train or discipline” defendant “and the best interests of [defendant] and the 

public will not be served by placement.” The trial court checked another box on the 

commitment order that states that commitment to the DJJ is “necessary to ensure the 

protection of the public from the consequences of the criminal activity of [defendant],” based 

on the individualized factors of: (1) defendant’s criminal background; (2) review and results 

of any assessments; and (3) the physical, mental, and emotion health of defendant. However, 

the trial court did not check the box that states, “reasonable efforts were made to locate less 

restrictive alternatives to secure confinement and were unsuccessful.”

¶ 42 This appeal follows.
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¶ 43 ANALYSIS

¶ 44 On this appeal, defendant first raises a constitutional claim, arguing that the minimum 

mandatory sentence of five years’ probation violates the equal protection clause of the United 

States and Illinois Constitutions, and as a result, we should vacate defendant’s order of 

commitment to the DJJ, as well as her original five-year probation sentence, and remand this 

case for resentencing. Defendant next directly appeals her commitment to the DJJ, arguing 

that the trial court erred as a matter of law, or alternatively abused its discretion, when it 

revoked her probation and committed her to the DJJ without considering a less-restrictive 

alternative to a secure confinement sentence as required by the Juvenile Court Act. 705 ILCS 

405/5-750(1)(b) (West 2012). Finally, defendant argues that her convictions of aggravated 

robbery, robbery, theft from person, and battery should be vacated since those surplus 

convictions violate the one-act, one-crime doctrine. 

¶ 45 In response, the State argues that we do not have jurisdiction to consider defendant’s 

claim since she did not appeal her sentence of probation within 30 days. The State also 

claims that the trial court did not err because it was not required to make a written finding, 

and that the appellate record shows that the trial court considered less-restrictive alternatives 

prior to committing defendant. The State further argues that defendant forfeited her claim 

concerning convictions because she did not object at trial. 

¶ 46 For the following reasons, we remand for resentencing.

¶ 47 I. Equal Protection Claim

¶ 48 Defendant first raises a constitutional claim, arguing that the Juvenile Court Act’s

minimum mandatory sentence of five years’ probation violates the equal protection clause of 

the United States and Illinois Constitutions, and as a result, we should vacate defendant’s 

order of commitment to the DJJ, as well as her original five-year probation sentence, and 

remand this case for resentencing.

¶ 49 However, we do not have jurisdiction to consider defendant’s constitutional claim since 

defendant did not appeal the probation order within 30 days pursuant to Illinois Supreme 

Court Rule 606(b) (eff. Jan. 1, 2013) (“[T]he notice of appeal must be filed with the clerk of 

the circuit court within 30 days after the entry of the final judgment appealed from or if a 

motion directed against the judgment is timely filed, within 30 days after the entry of the 

order disposing of the motion.”). The timely filing of a notice of appeal is both jurisdictional 
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and mandatory. In re J.T., 221 Ill. 2d 338, 346 (2006); People v. Smith, 228 Ill. 2d 95, 104 

(2008). In this case, the probation order was entered on March 27, 2012, and defendant filed 

a notice of appeal on January 10, 2013, more than nine months later. As a result, we lack

jurisdiction to consider defendant’s challenge to the Juvenile Court Act. See People v. 

Fitzgerald, 25 Ill. App. 3d 973, 975 (1975) (“[W]here there has been no appeal from a 

judgment of conviction and order of probation, such cannot be reviewed on appeal from an 

order revoking probation ***.”). 

¶ 50 Defendant argues that we have jurisdiction to review her constitutional claim because the 

probation order was void, which is an issue that may be raised at any time. People v. Bryant, 

128 Ill. 2d 448, 453-54 (1989); People v. Thompson, 209 Ill. 2d 19, 28 (2004) (“[A] void 

order may be attacked at any time or in any court, either directly or collaterally.”). However, 

“a judgment is void if and only if the court that entered it lacked jurisdiction.” People v. 

Hubbard, 2012 IL App (2d) 101158, ¶ 16. See People v. Davis, 156 Ill. 2d 149, 155 (1993) 

(“Where jurisdiction is lacking, any resulting judgment rendered is void and may be attacked 

either directly or indirectly at any time.”). Even if defendant is correct that the Juvenile Court 

Act violates the equal protection clause of the United States and Illinois Constitutions, the 

probation order would be merely voidable, not void, since the order was entered by a court of 

competent jurisdiction. Davis, 156 Ill. 2d at 155-56 (“[A] voidable judgment is one entered 

erroneously by a court having jurisdiction and is not subject to collateral attack.”). As a 

result, we do not consider defendant's constitutional claim since we do not have jurisdiction 

to review the probation order.

¶ 51 II. Lack of a Least-Restrictive-Alternative Finding

¶ 52 Defendant next directly appeals the commitment order, arguing that the trial court erred 

as a matter of law, or alternatively abused its discretion, when it revoked her probation and 

committed her to the DJJ without considering a less-restrictive alternative to a secure 

confinement sentence as required by the Juvenile Court Act. 705 ILCS 405/5-750(1)(b) 

(West 2012). The State argues that the trial court did not err because it was not required to 

make a written finding, and that the appellate record shows that the trial court considered 

less-restrictive alternatives.

¶ 53 Whether the Juvenile Court Act requires the trial court to make a finding is a matter of 

statutory construction that we review de novo. Fisher v. Waldrop, 221 Ill. 2d 102, 112 
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(2006). As stated, de novo consideration means we perform the same analysis that a trial 

judge would perform. Khan v. BDO Seidman, LLP, 408 Ill. App. 3d 564, 578 (2011).

¶ 54 “The fundamental rule of statutory construction is to ascertain and give effect to the 

legislature’s intent.” People ex rel. Birkett v. City of Chicago, 202 Ill. 2d 36, 45 (2002). The 

best indication of legislative intent is the plain and ordinary meaning of the statutory 

language. Birkett, 202 Ill. 2d at 45. When statutory language is clear, it must be given effect 

without resort to other tools of interpretation. Fisher, 221 Ill. 2d at 112. Generally, statutory 

language is considered ambiguous when it is capable of being understood by reasonably 

well-informed persons in two or more different senses. MD Electrical Contractors, Inc. v. 

Abrams, 228 Ill. 2d 281, 288 (2008). Since all provisions of a statutory enactment are viewed 

as a whole, words and phrases should not be construed in isolation, but should be interpreted 

in light of other relevant provisions of the statute. In re Detention of Lieberman, 201 Ill. 2d 

300, 308 (2002). “Each word, clause and sentence of the statute, if possible, must be given 

reasonable meaning and not rendered superfluous.” Lieberman, 201 Ill. 2d at 308. However, 

“[i]t is a cardinal rule of statutory construction that we cannot rewrite a statute, and depart 

from its plain language, by reading into it exceptions, limitations or conditions not expressed 

by the legislature.” People ex rel. Birkett v. Dockery, 235 Ill. 2d 73, 81 (2009). Furthermore, 

we always presume that the legislature did not intend to create absurd, inconvenient, or 

unjust results, and we have a duty to construe a statute in a manner that upholds its validity 

and constitutionality. Fisher, 221 Ill. 2d at 112.

¶ 55 Prior to 2012, the Juvenile Court Act permitted the trial court to commit a juvenile to the 

Department or Corrections provided that it made a finding either that commitment was in the 

best interests of the minor and public, or that commitment was necessary to protect the 

public. 705 ILCS 405/5-750(1) (West 2000). The original statute stated:

“Except as provided in subsection (2) of this Section, when any 

delinquent has been adjudged a ward of the court under this Act, 

the court may commit him or her to the Department of Corrections, 

Juvenile Division, if it finds that (a) his or her parents, guardian or 

legal custodian are unfit or unable, for some reason other than 

financial circumstances alone, to care for, protect, train or 

discipline the minor, or are unwilling to do so, and the best 
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interests of the minor and the public will not be served by 

placement under Section 5-740 or; (b) it is necessary to ensure the 

protection of the public from the consequences of criminal activity 

of the delinquent.” 705 ILCS 405/5-750(1) (West 2000).

Although there was no law prior to 2012 requiring the use of less-restrictive alternatives, 

reviewing courts held that commitment to the DOC should only be used when less-severe 

alternatives would not be in the best interests of the minor and the public. In re S.M., 229 Ill. 

App. 3d 764, 769 (1992) (citing In re G.S., 194 Ill. App. 3d 740, 743 (1990), and In re B.S., 

192 Ill. App. 3d 886, 891 (1989)). See In re Darren M., 368 Ill. App. 3d 24, 39 (2006) 

(“[C]ommitment is to be used only when less severe placement alternatives would not be in 

the best interests of the minor and the public.” (Internal quotation marks omitted.)).

¶ 56 On January 1, 2012, an amended section 5-750(1) became effective, which kept the 

original language of subsection (1)(b) but combined it with subsection (1)(a). 705 ILCS 

405/5-750(1)(a) (West 2012). The amendment then added a new subsection (1)(b) that 

required an additional mandatory finding that commitment to the DJJ be the least-restrictive 

alternative. 705 ILCS 405/5-750(1)(b) (West 2012). The current statute provides:

“Except as provided in subsection (2) of this Section, when any 

delinquent has been adjudged a ward of the court under this Act, 

the court may commit him or her to the Department of Juvenile 

Justice, if it finds that (a) his or her parents, guardian or legal 

custodian are unfit or unable, for some reason other than financial 

circumstances alone, to care for, protect, train or discipline the 

minor, or are unwilling to do so, and the best interests of the minor 

and the public will not be served by placement under Section 5-

740 or it is necessary to ensure the protection of the public from 

the consequences of criminal activity of the delinquent; and (b) 

commitment to the Department of Juvenile Justice is the least 

restrictive alternative based on evidence that efforts were made to 

locate less restrictive alternatives to secure confinement and the 

reasons why efforts were unsuccessful in locating a less restrictive 
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alternative to secure confinement.” 705 ILCS 405/5-750(1) (West 

2012).

¶ 57 The plain language of the statute states that the trial court may commit defendant to the 

DJJ only if it finds that commitment to the DJJ is the least-restrictive alternative. In re 

Raheem M., 2013 IL App (4th) 130585, ¶ 45 (citing 705 ILCS 405/5-750(1)(b) (West 2012)). 

In other words, the trial court has discretion to commit defendant to the DJJ, but it may only 

do so if it first makes a finding that there are no less-restrictive alternatives to secure 

confinement available to defendant. In re Raheem M., 2013 IL App (4th) 130585, ¶ 50 

(“Prior to committing a juvenile to the DOJJ, a trial court must have before it evidence of 

efforts made to locate less restrictive alternatives to secure confinement and the court must 

state the reasons why said efforts were unsuccessful.”).

¶ 58 In the case at bar, defendant was committed to the DJJ on December 11, 2012, so she was 

subject to the amended statute, which requires that the trial court finds that there are no lessrestrictive alternatives to secure confinement. However, the trial court never made a finding 

that defendant’s commitment to the DJJ was the least-restrictive alternative, and it never 

expressly stated during court proceedings that commitment was the least-restrictive 

alternative or that it had made that finding. Moreover, the trial court did not check the box on 

the commitment order indicating that commitment was the least-restrictive alternative. As a 

result, the trial court never made the finding required under to the recently amended section 

5-750(1). 705 ILCS 405/5-750(1)(b) (West 2012).

¶ 59 The State claims the statute does not require the trial court to make a written finding or to 

check a box on a form order indicating that it made a finding. In support, the State cites In re 

J.C., 163 Ill. App. 3d at 888, which held that “[a] judge need not enumerate all possible 

alternatives when making a disposition [citation], and the remarks of the trial judge can 

illustrate consideration of alternatives.” The State claims that, although the trial court never 

expressly stated as such, the appellate record shows that the trial court considered lessrestrictive alternatives prior to committing defendant. The trial court continually requested 

updates concerning defendant’s placement in a different home. Defendant was set to be the 

first transgender resident at Rosenberg Home for girls, and she toured the home and met 

many of the staff and residents there. Defendant’s probation officer then told the trial court 

that defendant “may be blowing” the placement due to her behavior, but later explained that 
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an outgoing resident did not leave after all, which left no vacancies for defendant to fill. The 

State claims that since the trial court was presented with this evidence and it considered 

alternatives to secure confinement, we can infer from the appellate record that the trial court 

found that commitment was the least-restrictive alternative.

¶ 60 However, although the appellate record may support a determination that there were no 

less-restrictive alternatives available to defendant, the plain language of section 5-750(1)(b)

states that the trial must find that commitment is the least-restrictive alternative. 705 ILCS 

405/5-750(1)(b) (West 2012). In re J.C. is distinguishable because it was decided before the 

statute was amended in 2012. In re J.C., 163 Ill. App. 3d 877. In that case, the appellate court 

found that the trial court need not enumerate every possible alternative to secure confinement 

to show that is considered alternatives. While the In re J.C. court was concerned with the 

issue of the trial court’s consideration of lesser alternatives, the issue on appeal in the instant 

case is whether the trial court made a finding as required under the recently amended statute. 

705 ILCS 405/5-750(1)(b) (West 2012). Here, the trial court never expressly stated during 

the proceedings that it made this finding, and it also did not check the box on the 

commitment order indicating that it made the finding. Although the trial court may have

considered the issue of less-restrictive alternatives prior to committing defendant to the DJJ, 

it did not make a finding required under section 5-750(1)(b). 705 ILCS 405/5-750(1)(b) 

(West 2012).

¶ 61 The State also points to People v. Davis, 93 Ill. 2d 155, 162-63 (1982), where our 

supreme court held that certain sections of the Unified Code of Corrections (Ill. Rev. Stat. 

1979, ch. 38, ¶¶ 1005-4-1, 1005-8-1) may not require the trial court to state on the record 

reasons for imposing a particular sentence. However, Davis is distinguishable because in that 

case, the issue was whether the trial court was required to state every reason for its 

pronouncement of a sentence. Here, the trial court is only required to make a finding, and 

section 5-750(1)(b) does not require that it state every reason that it made the finding. 705 

ILCS 405/5-750(1)(b) (West 2012). 

¶ 62 We are concerned with the precedential value of this opinion if we were to determine that 

the trial court made the statutorily required finding based solely on its statement that it 

considered the issue. Such a holding would call into question whether express findings are 

even necessary, which would be in direct conflict with purpose of adding the new 
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requirement to the statute. Since the trial court did not find that commitment to the DJJ was 

the least-restrictive alternative, we remand the case to the trial court for resentencing in 

accordance with the provisions of section 5-750(1)(b). 705 ILCS 405/5-750(1)(b) (West 

2012).

¶ 63 III. One-Act, One-Crime Doctrine

¶ 64 Finally, defendant argues that the trial court violated the one-act, one-crime doctrine 

when it indicated in the trial order that it found defendant guilty of “all” counts on the 

petition: armed robbery, aggravated robbery, robbery, theft from person, aggravated battery,

and battery. As a result, defendant requests that we vacate her surplus convictions and 

modify the trial order to reflect only two convictions: armed robbery and aggravated battery.

The State responds that defendant forfeited this issue because she did not object at trial.

¶ 65 However, we do not have jurisdiction to consider defendant's claim since she did not 

appeal her conviction within the statutory 30-day time period. As stated, a notice of appeal 

must be filed with the clerk of the circuit court within 30 days after the entry of the final 

judgment appealed from or if a motion directed against the judgment is timely filed, within 

30 days after the entry of the order disposing of the motion. Ill. S. Ct. R. 606(b) (eff. Jan. 1, 

2013). Here, defendant was convicted on March 21, 2012, and sentenced March 27, 2012. 

Defendant did not file a notice of appeal until over nine months later, on January 10, 2013, 

after she pled guilty to a second violation of her probation. As a result, we lack jurisdiction to 

consider defendant’s challenge to the Juvenile Court Act.

¶ 66 We note that, even if we were to consider this issue, the trial court did not err because it 

entered a single adjudication of delinquency and merged all the counts into one crime. See In 

re Samantha V., 234 Ill. 2d 359, 378 (2009) (finding that the trial court violated the one-act, 

one-crime doctrine when it found defendant guilty of both counts and failed to merge the 

counts or otherwise indicate on the record that defendant’s adjudication of delinquency was 

based on only one count of aggravated battery). At the conclusion of defendant’s trial, the 

trial court stated, “[T]here will be a finding of guilty. All counts will merge for purposes of 

sentencing.” The trial court then entered a sentence of five years of probation, and it later 

indicated in the commitment order that the committing charge was the sole offense of armed 

robbery. As a result, there was no error because the trial court made only one finding of 

guilty and merged all counts into a single adjudication of delinquency.
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¶ 67 CONCLUSION

¶ 68 For the foregoing reasons, we remand the case for resentencing. We do not have 

jurisdiction to review defendant’s original conviction and probation sentence since defendant

did not appeal the probation order within 30 days and the order was not void. However, the 

trial court did not make a finding that committing defendant to the DJJ was the leastrestrictive alternative as required by the Act, and as a result, we remand this case for 

resentencing on the State’s second petition for supplemental relief. 

¶ 69 Remanded with instructions.