2013 IL 110810



### IN TH E
SUPREME COURT
OF
THE STATE OF IL LI NOI S

(Doc ket No. 110810)
In re DANI EL L E J
., a Minor (The People of the State of I llinois
, Appellant and Cross-Appellee
, v. Danielle J
., Appellee and CrossAppellant).

Opinion filed Dece mber 19, 2013.

J USTI CE BU RKE delivere d the j u d gment of the court, with opinion.
Chief J ustice Gar

man and J ustices Fr eem an , Thomas, Kilbride, and The is concurr ed in the judg ment and opinion.
J ustice Kar

meier concur

red in p art and dissented in part, 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)) unconstitutional o n i ts fac e and as applied to her. Section 5-615(1)
p ro v i d es that a juvenile who is not char g ed with committing first deg ree murder, a Class X felony or a forc ible felony m ay obtain a continuance under supervision “(a ) upon an admission or stipulation by the ap p ropriate responde nt or minor responde nt of the fac ts supporting the petition and befor e proce eding to adjudication, or afte r hear ing the evidenc e at the t rial, and (b) in the abs ence of objec t ion 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 St a t e’ s Attorney .” (Emphasis added.) The circ uit court held that the statutory authority g iven to theState’s Attorney under section 5-615(1) (b) to object to the g rant of a continuance under supervision vio lates separ ation of power s, equal protec tion and due p ro ce ss g uara ntees. The court then enter ed an order
, over the State’s objection, g rantingresponde nt a continuanc e under supe rvision for one year

. ¶ 2 Fo r re as o n s that follow, we find that the trial cou rt er re d i n

rea ch i ng the issue of the statute’s constitutionalit y

. We vacate that finding and reman d fo r further proce eding s consistent with our opinion.

¶ 3 BA CKGROUND ¶ 4 On J anuar

y 27, 2010, th e State filed a delinquency petition ag ainst responde nt, 15-y ear -old Danielle J
., char g ing her wi t h having committed a misdemea

nor battery in violation of section 12-3(a )(1) of t he C riminal Code of 1961(720 I L CS 5/12-3(a) (1) (West 2010)). The 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 chest. ¶ 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 uil ty p le a

. Re spondent reje cted the plea offe r and t h e matter proce eded to trial. At trial, the State prese nted
two witnesses—Jada M

. , the alleg ed victim, and Ivan Nava rro, a

secur ity g uard at Ace Tec hni ca l Charter Hig h School, wher e responde nt and J ada a

ttended cla sses. ¶ 6 J ada testified that on J anuar y 15, 2 0 1 0
, at about 10:30 a.m., she

wa s i n s chool and walking to a class when she was confr onted by Alesha W., another student. Al es ha was acc ompanied by three friends, one of whom was responde nt. J ada testif i ed t h at Alesha beg an to argue wit h h er an d then took a swing at her. When that happene d, Nava

rro, one of the school’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 f our times. A t that point

a sec ond secur ity

g uard a rrived a nd took control of re spondent. ¶ 7 Nava

rro testified similarly

to J ada. H e said that he saw J ada and Alesha b egi n to argue and immediately intervene d by stepping betwee n the two g irls in an attempt to preve nt them from hitting eac h other. Nava

rro also testified that while he was trying to keep Alesha

-2-and J ada ap ar t , h e looked to his left and saw that 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 w ith a closed fist be fore anyone wa s able to stop her. Nava

rro also testified that he did not see J ada hit responde nt. After prese nting this testimony , the State re sted. ¶ 8 Def

ense counsel moved f

or a dire cted f

inding a nd the trial court denied the motion. Counsel then called responde nt to the stand. I n an eff ort to e stablish that she acte d in se lf-def ense, responde nt testified

as follows. On the morning of J anuar y 15, 2010, while attending Ace Tec hnical Charter Hi gh S chool, responde nt met with her friends, Alesha, Sierra, and Chastity
, and walked with them to her next class. As they walked, Alesha told 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 tio n

. Acc ording to responde nt, when J ada wa s about two to three fee t awa y , Alesha started arg

uing with J ada. Respondent further testified that a secur ity guard came up to J ada and Alesha as they wer e ar gu i n g i n the corr idor and stepped betwee n them just as t h ey both started throwing punches at eac h other. Acc ording t o responde nt, J ada was still throwing punches as the secur ity g uard held Alesha ag ainst the wall. Respondent claimed
t h at one of J ada’ s punches passed by responde nt’s fac e, bare ly missing her. Respondent admitted that she was not sure whether J ada

wa s swing ing 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 i t y g uard stopped them. ¶ 9 Af

t er h ea ri ng closing ar gu m en t s , t h e t ri al co u rt re j ec t ed responde nt’s self-de fense the o r y a n d f o u n d h e r g u ilty of misdemeanor battery

. The court t h en co n tinued the matter to April 8, 2010, “for social [hist ory ] and sentencing .” ¶ 10 On April 8, 20 1 0
, t h e p ro b at i o n o ff i ce r submitt ed his social history repor

t to the court and rec ommended t h at responde nt be
sentenc ed to one y ear of probation. T h e S t at e ag ree d with that

rec ommendation, but sug g ested that re spondent also be order ed to attend ang er manag ement classes. Def ense counsel ag ree d that ang er manag ement classes would be appropr iate, but ask ed i f the court

-3-would consider “some sort of supervision” instead of probation. The 1
court re sponded:

“THE COURT: Mr. Tountas [defense counsel], a g ood point, ex cept juvenile la

w doesn’t a llow me to consider.
And one of the problems I ’m having wit h this case , and I ’m taking it under consideration, is t o [ s i c ] whether to decla r e it unconstitutional as to J uvenile Court, whether or not afte r a trial I have to—basical l y wh at I have to do is g et the State’s permiss i o n 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: I n t h e adult sy stem, even afte r a trial a judge can e nter a

n order of super vision. The only way around that, I think, wo u l d b e 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—you’re asking me to consider that? ” ¶ 11 The trial court, fi n d i n g t h at i t wa s p re v ented from g ranting

Danielle a continuance under supervision by the State’s Attorney ’s objection pursuant to section 5-615(1) (b), continued the dispositi onal hear ing and asked both defe nse counsel and the State to prepa re leg al memoranda reg arding the const i t u t ionality of the State’s Attorney “appr oval provision” in sec tion 5-615. A new c ourt date w as set for J une 17, 2010. ¶ 12 At t h e J u n e 1 7
, 2010, hear ing, defe nse counsel submi t t ed a

written motion asking the trial court to grant Danielle a continuance under supervisi o n o v e r th e St ate’ s objection. Counsel asser ted that the trial court had the authority to enter such an order due to the fac t that the State’s Attorney “appr oval provision” in section 5-615 of the Act is unconstitutional. Counsel also submitt ed a memorandum of law, as reque sted by the court, in supp o rt o f his claim that the State’s At t o rn ey “a p p ro v al p ro v i s i o n ” i n s ec t ion 5-615(1) (b) i s unconstitutional. Respondent was not prese nt at this hear ing and the trial court enter ed no ruling beca use the State did not have an opportunity

to prepa re a written response t o responde nt’s motion or

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 1 of sup er visio n” was unde rs too d as a re que st for a con t i n u anc e unde r sup er visio n pu rs uan t t o se ct ion 5- 615.

-4-the memorandum of law reg arding the constitutionalit y of the statute,

as the court had reque sted. T h e co u rt acc epted defe nse counsel’s tender of the documents and order ed the State to submit its response and memorandum of law by J une 25, 2010. The matter was rese t for dispositi on on J uly

1, 2010. ¶ 13 Be fore ending the hear ing, the court as k ed t h e assi stant State’s

Attorney s who wer e prese nt about the training they rec eived and the 2
g uidelines they followed when deciding whether to offe r or object to supervision. It was explained that assistant 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, how ever , that newe r assistant State’s Attorne y s,

or “third chair s,” g ener ally rec eive traini n g o n p lea offe rs from the “fi rs t chair ” in the courtroom and this includes some instruction on when to off

er supe rvision and when to oppose it. ¶ 14 The court asked the assistant State’s Attorney s if they wer e aw are

of the statutory g uidelines used by courts for deciding when to g rant supervision in adult court. I n the course of that discussion, Assistant 3 State’s Attorney Pill sbury pointed out that in responde n t’s case a

rec ommendation of nine months’ supervision had been offe red to the

T he ass is ta nt Sta te ’s Att orn eys in cou rt on thi s dat e w e r e A s si st ant 2 S tate ’s Att orn ey Pil ls bur y and Assi st ant Sta te ’s Att orn ey Rubne r, who w er e

s t a n din g in for Assi st ant Sta te ’s Att orn ey Om ar , who had bee n ass ign e d thi s cas e, but was on vacat ion

. Lat e r , a s u per visor
, Assi st ant 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 f e r enc e to sec ti on 5- 6- 1(c ) of the Unif ie d 3 Code of Corr ect ion s (730 I LCS 5/ 5- 6- 1(c ) ( We st 201 0)) , whi ch p rovid es:

“ (c ) T he cou rt m ay, upon a ple a of guilt y or a st ipu la ti o n b y t h e def end ant of the fa 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 ord er for sup er visio n of the def end ant , if the def

end ant is not cha r ge d w it h [vari ous m is demeanor s or a fe lon y]. I f the def end ant is not bar re d fr om

r e c e iving an ord er for sup er visio n as pro vided in thi s sub sec ti on, t h e

cou rt m ay ent er an ord er for sup er visio n a f t e r con si der ing the ci rc um st anc es of the off

ens e, and the his tor y, cha ra ct er and con dit ion of the 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 bes t ser ved if the def end ant wer e no t t o r ece ive a c ri m ina l r eco rd; and (3) in the bes t int er est s o f j u st ic e an ord er of sup er visio n is m ore app rop ri at e t han a s ent enc e ot her wis e pe rmitt ed u nde r t his Code .”

-5-responde nt prior to trial, but was reje cted. Assistant State’s Attorney Pill sbury then commented: “And it’s my understanding that in supervision, the idea of supervision is that the minor is put on supervision and then no finding will be enter ed if the supervisi o n is term—is

com p l eted satisfac torily

. *** I n this case , there ’s alre ady a finding enter ed, so the—I g uess the p o int of supervision is
moot. Since there ’s alre ady been a finding
, y ou can’ t g o back and er ase 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 still be
enter ed. You’ re a

war e of that; that is correc t? ” ¶ 15 The assistant State’s Attorney admitted she had no experience in

adult court and, there fo re, was unsure of the proce dure. The matter was then he ld over to Jul y 1, 2010. ¶ 16 At the J uly 1, 2010, hear ing, defe nse counsel urg ed the court to

d ec l are the State’s Attorney “appr oval provision” within section 5

- 615(1) of the J uvenile Court Act unconstitut i o n al, contending that this provision violates separ ation of power s and equal protec tion, and is fundame ntally unfair and inconsistent with the manifest g oals of the J uvenile Court Act. Counsel then asked the court to g rant responde nt a continuance 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 const itutional. The State contende d that the provision had p re v iously been upheld in In re T.W

. , 101 I ll. 2d 438 (1984), and in People ex rel. Dev ine v. S t ralka
, 226 I ll. 2d 445 (2007), a nd urg ed the c ourt to find the s tatute constitutional for that

rea son. The State aske d that a sente nce of probation be imposed. ¶ 18 After hear ing arg u m en t , t h e t ri al co u rt entered the following ruling : “In t h e m atter befor e this Court now in In Re Danielle J.
, 10J D336, afte r a trial, the minor was found g uilty of a battery and no adjud i ca t i o n or sentenc e has y et to be enter ed. So
sup e r v is io n , u n d e r th e c u

r r e nt statute, 705 I L CS 405/5-615(1), is not barr ed assuming no veto b y the State’s Attorney

. Howeve r, in this case , the State’s Attorney has objected to the continuance under supe rvision.”

-6-¶ 19 The court then explained that it found the case s cited by the State
to be distinguishable or unpersua sive. Fur t h er, 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 t h e au t h o ri ty to object to an order of super vision, it found the State’s Attorney ’s ex erc ise of t hat rig ht in this case unconstitutional

. The court rea soned t hat t he S tate had offe red to rec ommend an o rd er of supervision befor e trial, but later objected to supervision only beca use Danielle had opted to g o to trial. The court found that this amounted to a “trial tax” and held that responde nt’s elec tion to go to trial wa s not an appropr iate factor for the State to consider when deciding whether to object to a gra nt of supervision. I n addition, the court noted that the State claimed to be objecting t o t h e 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 ag ree d to

rec omme nd supervision before trial

. Thus, the court found this purported reas o n for the State’s posttrial objection to be disinge nuous. ¶ 20 Finally
, the court noted that the State’s memorandum c onfirmed

that assistant State’s Attorney s rec eive no formal training on when to agr ee or object to an order of supervision; that there is no wr i t t en policy on when an assistant State’s Attorn ey should agree or object
to supervision; and there are n o s t atut ory g uidelines in the J uvenile Court Act for deter

mining when supervision might be an appropr iate
sentenc e, althoug h there are statutory gu idelines for g ranting supervision to adults (see 730 I L CS 5/5-6-1 (West 2010)). I n light of these fa cts, the court held t hat the State’s Attorne y ’s exercise of her autho ri t y 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 uvenile Court Act unc onstitut ional on its fa ce and as applied to responde nt, stating:
“In consider ing there is no rational basis for the *** leg islature to treat simil arly situated adults and juveniles differ ently with reg ard to a jud ge’s authority to impose

s upervision, that constraining a judge ’s ability to g rant a sentenc e of supervision is counter -intuitive to the J uvenile Court Act’s specific g oal of reha bilitation and the Act’s g rant of discretion to the judge ’s deter mining the best interest of the juvenile and g iven the State’s Attorney ’s veto power over the authority of supervision, I ’m finding it to be a violation of

-7-separ ation of power s and of equal protec tion and o f due proce ss.” ¶ 21 Having decla red th e S t at e’ s At t o rney “appr oval provision” in section 5-615 unconstitutional, t h e trial court enter ed an order
g ranting responde nt a continuance under supervision over the State’s Attorney ’s obj ection. P ursuant to the order, Danielle was su b j ec t to court supervision for one y ear , during which time she was require d to continue attending school, complete 20 hours of community service
, 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 ul y 1 3
, 2 0 1 0
, t h e court amende d the above ruling and, in

confor mance with Su p reme Court Rule 18, issued an order finding section 5-615( 1) of the J uvenile Court A ct unconstitutional beca use it does not permit a continuance under supervision if the State’s Attorney objects in open court. The g rounds listed wer e: violation of
separ ation of power s; violation of equal protec tion; and “violation of due proc ess ar

bitrarily enfor ced.” ¶ 23 T h e S t at e appea led direc tly to this court pursuant to Supr em e

Court Rule 603 (eff

. Oct. 1, 2010).

¶ 24 ANALYSI S ¶ 25 Although the State comes befor e this court on direc t appea l f rom the circuit court’s ruling that section 5-615(1) of the J uvenile C ourt Act (7 0 5 I L CS 405/5-615(1) (West 2010)) is unconstitutional, the State prese nts no arg

ument reg arding t h e const itutionalit y of this statutory provision. I nstead, rely ing on our decision in In re Veronica C.
, 239 I ll. 2d 134 (2010), the State contends that the trial court err ed in rea chingthe issue of the statute’s constitutionalit y and, ther efor e, the ruling should be reve rsed. ¶ 26 We ag ree that our decision in Veronica C. controls the resolution

of this appea l. In Vero n i ca C

. , the responde nt-minor, like Danielle here
, was ch ar ged 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 unde r super vision was not reque sted prior
t o t h e co urt enter ing a finding of g uilt. After the matter proce eded

-8-past the fi rs t p hase proce eding s to adjudication and sentenc ing, 4 defe nse counsel argued that Ver onica shou l d 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 o f 1 2 months’ probation. ¶ 27 Ver onica appea led to the appellate court, wher 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 s t at u te violates equal protec tion and separ ation of power s beca use it permits the S tate’s A t t orney to bar the circ uit court from g ranting a mi nor a continuance under supervision. The appellate cour t u p held the constitutionalit y of the statut e an d aff irmed the circ uit court’s judgme nt and sentenc e. ¶ 28 We gr anted Ver onica’ s petition f or leave to a

ppeal a nd aff irmed the appellate court’s judgme nt , b u t 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 s h e had not been adver sely aff

ecte d by the operation of t hat provisi on. Id. at 14 7 (“A party may not raise a const i t u t i o n al 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))

. In rea ching that deter mination, we interpre ted section 5-615(1) of the J uvenile Cour t Ac t as requiring “that the possibili ty of supervision be broac hed and considere d, if at all, before ‘proc eeding to finding s and adjudication.’ ” (Emphasis in orig inal.) Id. at 146. “Adjudication” in this context, we said, meant an “adjudication of delinquency
, the formal culmination of the first phase proce eding s.” Id. at 146 n.1. I n light of our interpre tation of the statute, we held that it was the failure to bro ac h the subject of supervision prior t o a fi nding of guilt being enter ed, and not the State’s objection, which had preve nted her from rec eivi n g a continuance under supervision. We conclude d, there fore
, that even if

we wer e to hold the “appr oval provision” of the statu t e unconstitutional, Ver onica wo u l d n o t be entitled to the relief she
soug ht—a continuance under supervisio n

— b ecause the failure to reque st supervision prior to a finding of g uilt being enter ed made the

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 4
sep ar at e and dis ti nct pha ses : the fi ndi ngs pha se, the adj udi cat ion pha se, and the di spo si ti ona l p has e.

-9-State’s Attorney ’s o b j ections 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 constitutionality . For that rea son, we did not nee d to addre ss that issue in her appe al. ¶ 29 I n the case at bar, Da n i el l e, l i k e Ver onica in Veronica C. , was

statutorily prec luded from obtaining a continuance under supervision

once the trial court enter ed its finding t h at Da nielle was g uilty of misdemeanor battery

. Thus, when Danielle’ s attorney reque sted supervi s i on at the adjudication and sentenc ing hear ing, that reque st

came too late. See In re Veronica C

. , 2 3 9 I l l. 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, if at all, befor e proce eding to finding s and adjudication). Fur

thermore
, once the finding of g uilt was enter ed, not only was defe nse counsel statutorily p re cl uded from seeking a continuance under s u pervision, the trial court 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 s o u gh t a continuance under supervision at the adjudication and sentenc ing phases of the proce eding s, the statutory veto power exercised by the State’s Attorney was no longe r rele vant. T h erefore
, 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 cour t erred by doing so and, thus, vaca te the finding o f u n const itutionalit y

. I n addition, beca use the trial court lacke d statutory authority to g rant a continuance under super v i s i o n

once it found Danielle g uilty
, its subseque nt or der g ranting Danielle supervision is void and must be reve rsed. ¶ 30 The State contends that u p o n re v er s i n g t h e o rd er gra n t i ng

Danielle a continuance under supervision, we must rema nd the matter to t h e ci rc uit court with instructions that the trial court enter a dispositi on of probation. Danielle, howeve r, argues in a cross-a ppeal 5 that she 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 o r understood the plain meaning of the juvenile supervision statute and, as a result, failed to b ro ac h the
matter of supervision at the appropr iate time. She asks that we fashion an equitable reme dy to addre ss the prejudice she suffe rs as a

O n A u gu s t 28, 2012
, we ent er ed an ord er des ignat ing the sec ond 5

ar gum ent in re spo nde nt’ s br ie f a s a cr oss

- app eal

.
-10-result of h er counsel’s defic ient perf ormanc e and the fundame ntal unfairne ss of the proce eding s. Sh e sug g ests two possible reme dies: (1) that we revie w t h e trial court’s finding that section 5-615 is

uncons t i t u tional, or (2) that we rema nd the matter for a new first phase proce eding

. Thus, befor e we can decide the proper dispositi on of this case , we must consid er whether
, as Danielle argues, she

rec eived ineffe ctive assistance of counsel or whether the proce eding s

wer e funda

mentally unfair, c onstitut ing pla in error

. ¶ 31 T h er e is no question that a minor char g ed with committi n g an

offe nse, like Danielle here
, is entitled to the eff ective assistance of

c o u n sel in juvenile delinquency proce eding s. See People v. Aus ti n M

. , 2012 I L 111194, ¶ 76 (minors in delinquency proce edings have a nonwaivable statutory rig ht to counsel, as well as a co nstitut ional rig ht to eff

ective assistance of counsel). The standard utiliz ed to g aug e the eff

ectivene ss of counsel in juvenile proce eding s i s t he Strickland standard, used in crimi nal case s. See Strickland v. W ashington
, 466 U.S. 668 (1984). Unde r t h i s standard, ineffe ctive assistance of counsel is established if the minor can demonstrate: (1) counsel’s perf

ormanc e failed to meet an objective standard of compete n ce and (2) counsel’s defic ient perf ormanc e resulted in
p rejudice to the minor. See People v. Denze l W

. , 237 I l l

. 2 d 2 8 5 (2010); People v . Evans , 186 I ll. 2d 83, 93 (1999). ¶ 32 Fur

ther, under I llinois S u p re m e C o u rt Ru l e 6 1 5 and I llinois ’ plain-er ror doctrine, a revie wing court may consider defe cts in
proce eding s af

fe ct i ng 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 p ro p erly be invoked wh er e a court misapprehe nds or misapplies the law. See People v. W i lki ns , 343 I ll. App. 3d 147, 149-50 (2003) (a trial cour t ’s misapprehe nsion of a minimum sentenc e nece ssitates a n ew sentenc ing hear ing when it appea rs that the trial court’s misunderstanding influence d the sentenc ing decisi o n ); People v. Miranda , 329 I ll. App. 3d 837, 845 (2002) ( reve rsal re quired whe re tr i al court denied defe ndant a forf eiture hear ing based on its misapprehe nsion of the law)

. ¶ 33 Section 5-615 permits an order of sup e r v is io n “ upon an admission
or st ipulation by the appropriate re s p ondent or minor responde nt of the fac ts s upporting the petition and befor e proce eding to adjudication, o r af

t er hear ing the evidenc e at the trial.” We said in

-11-Veronica C. that the plain meaning of this langua g e meant that, in j u v enile delinquency proce eding s, a continuance under supervisi o n must be considere d, if at all, prior to a finding of guilt being enter ed and the culmination of the first-phase p roce eding

. Danielle asser ts that her attorney

was de ficient be cause he either did not know these require ments or misapprehe nded them. Danielle also claims she was prejudice d as a result of her attorney ’s defic iency beca use he failed to inform her that she risked losing the opportunity to obtain a continuance under supervision by reje ct in g th e St a te ’ s A tt o r ney ’s plea offe r. I n addition, beca

use of her attorney ’s misapprehe nsion of the law, he failed t o re q uest supervision afte r proce eding to trial, but b efore a finding of g uilt was enter ed. As a result, she l o s t t h e opportunity to obtain a continuance under supervision. Danielle

asser ts that, h ad her attorney known that a continuance under supervision was statutorily p rec luded once a finding of guilt is entered, and had he communicated that to her, she would have

acc epted the S t at e’s plea offe r and not g one to trial. Or, if she
proce eded to trial, she would have reque sted supervision befor e a finding was e ntere d. ¶ 34 Da n i el l e al s o co n t en d s that her juvenile p ro ce ed i n gs we re

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 fi n d ing of g uilt is enter ed. Danielle

conce des that, g ener ally
, a trial court has no obliga tion to broac h the subje ct of a continuance under supervision afte r trial and befor e finding a responde nt g uilty

. Howeve r, in this case the trial court’s subsequent actions demonstrated that it believed that supervision was t h e p roper dispositi on for Danielle. There fore
, the failure to broac h the subject of a continuance under supervision at the proper time was

a re sult of the court’s misunderstanding of the plain languag e of the statute, which rende red the p ro ceeding s fundame ntally unfair. Danielle was prejudice d beca use, absent the tri al court’s misunderstanding of the l aw, Danielle’ s opportunity to obtain a continuance under supe rvision would not have bee n lost. ¶ 35 W e agr ee wi t h Danielle. I n Veronica C

. we held that the plain

lang uag e of the statute require d that the subject of supervision be broac hed, if at all, prior to the court enter ing a finding of g uilt. I n the

case at bar, howeve r, both counsel and the court demonstrated a misapprehe nsion of the law when they failed to broac h the subject of

a continuan ce u n der supervision prior to the entry of a finding of

-12-g uilt. In fac t, the rec ord 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 alre ady been enter ed. Moreove r, th e trial judge repe atedly held that supervision was available to Danielle but for the State’s o b

je ction and then g rante d Danielle a continuance und er supervision over the State’s Att orney ’s obj ection, finding the State’s Attorney “appr oval
p r o v is io n ” u

n c o n s ti tu ti onal. The rec ord clea

rly demonstrates th a

t b o th counsel and the trial court wer e unawa re that a continuance under supervision was statutori ly precl u ded o nce a finding of g uilt was enter ed. We find, there fore
, under the circ umstances of this case , the failure of both counsel an d t h e t ri al court to raise the option of supervision at an ear lier stag e in the proce eding s, befor e a finding of
gu i lt was enter ed, was err or which aff ecte d Danielle’ s substant i al rig hts. We also find that Dan ielle rec eived ineffe ctive assistance of counsel, was prejudice d by her attorney ’s defic ient perf ormanc e, and that the trial court’s err or aff ecte d the fairne ss of the p ro ce ed ings below and challeng ed the i n t egrity of the judicial proce ss. Danielle

was prejudice d by t h es e err ors beca use they denied her the opportunity

to obtain a continuanc e under supervision. ¶ 36 I n Veronica C.
, Ver onica never argued ineffe ctive assi s t an ce of

counsel, plain err or, or that “the trial court’s failure to raise the option of supervision at an ear li er s t age in the proce eding s aff ecte d the fairne ss of proceed ings below and challeng ed the integ rity of the j u d i cial proce ss.” See In re Veronica C.
, 239 I ll. 2d at 147. As a result, we did no t have the opportunity to consider what reme dy should be aff

orded to some o n e wh o had established such claims. Her e, Danielle sug g es t s t h at a proper equitable reme dy for her counsel’s a

nd the trial cour

t’s err ors would be that this c ourt revie w the trial court’s finding that the State’s Attorney “appr oval provision” in section 5-615 is unconstitutional. I n the alternative, she as k s that

we rema nd this matter to the trial court for a new first phase hear ing. ¶ 37 We decline the invitation t o consider the constitutionalit y of the section 5-615(1)

. Danielle, like Ver onica in Veronica C.
, is prec luded by statute from obta in in g a c o nti n u a nce under supervision beca use the subject of supervision was not raised prior to a finding of g uilt being
enter ed, not bec au s e of the State’s Attorney “appr oval provision” within section 5-615. Thus, the const i t u t i onality of the State’s Attorney approva l provision in the statute is not proper ly befor e this
court.

-13-¶ 38 We agr ee , h o wever, that it would be appropr iate to rema nd this
matter for a new first-phase hear ing. By doing so, D anielle c ould be
proper ly advised by co unsel 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 At t o rney ’s approva l and might be lost. I n this
way , Dan i el l e would be able to make an informed and knowing decision about wheth er t o 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 cour t prior to a findingbeingenter ed. This would not be a f utile exercise beca

use, as the State made clea r at oral argument, there is no evidenc e that the St at e would have objected to a supervision order being enter ed at that juncture beca use Dani el l e never reque sted supervision prior to the court enter ing a finding of g uilt. Of course , in the event that the State o b j ects to the court g ranting Danielle supervision, Danielle could, at that time, proper ly raise a challeng e to the constitutionality

of the statute. ¶ 40 For the rea sons stated above, we vacate the circ uit court’s finding

that section 5-615 i s u nconstitutional. We reve rse the order of

s up er vision and rema

nd to the circ uit court for further proce edings 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 dissenting in part: ¶ 44 As the majority acknow ledg es, the trial court lacke d the statutory

authority to g rant a continuance under supervision once it found Danielle g uilty

. Conseq

u e ntly
, its order g ranting Danielle supervision is void and must be reve rsed. Fu rt her, as the majority finds, it was i m p roper for the trial court to consider the constitutionalit y o f t h e “appr oval provision” within section 5-615(1)

. Thus, the ci rc 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 the discussion that underpins the majority ’s rema nd o f this case for “a new first phase hear ing.”

-14-¶ 45 Danielle’s cl ai m s o f ineffe ctive assistance of counsel and plain

err or are meritless, Neither the fac ts, nor the law, nor considerations 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 t he circuit court with direc tions that the circ uit court enter a disposition of probation. ¶ 46 The majority ag ree s with the arguments advanc ed by Danielle in

her cross-a

ppeal. See supra ¶¶ 33-34. Even a cursor y examination of Danielle’ s brief exposes in h er ent inconsistencies in Danielle’ s position. Danielle’ s issue statement rea ds in part: “Da nielle rec eived ineffe ctive assi stance of counsel and/or she was denied due process wher e neither her att o rn ey nor the trial court applied or understood th e p lain wording of the juvenile supervision statute such that eac h failed to broac h the matter of supervision at the app ro p ri ate time.” (Emphasis added.) A g ood part of t h e rest of the brief is devoted to showing us how “cla irvoy an[ce] ” would have been require d to anticipate “the previously unarticula ted interpre tation of the supervision statute t hat this Court’s decision in Veronica C.
repr esents” and that neither trial counsel nor the ci rc u i t court could have seen it co m ing. So which is it? Were both so defic ient in their understanding or remiss in their edifica tion that they could not g rasp the “plain wording ” of the statute? Or wer e they both the innocent, but otherwise competent, v ic ti ms o f wh a t D a n ie lle would char acte rize as this court’s blindsiding de cision in Veronica C. ? ¶ 47 I f the latter, then Danielle ca n n o t es t ab l i sh the first prongof

Strickland
, i.e.
, t hat counsel’s perf ormanc e was defic ient. As we noted in People v. E n g l ish
, 2013 I L 112890, ¶ 34, counsel is not defic ient for failing to anticipate leg al developments that could not have be en for esee n. ¶ 48 Moreove r, it is not clea r that the trial court was confus ed

. T h e 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 “proba

tion.” There fore
, its consistent ref

ere nces, immediately afte r trial, to “probation” as the
most lenient dispositi on available in Danielle’ s case sug g est that the court, at that point, u nderstood the time for supervision had passed. After the t rial j udg e advised Danielle he did not believe her version

o f events, and pronounce d her g uilty of misdemeanor battery
, t h e court stated: “[Y]ou’ve b een convicted of a misdemeanor battery today

. I t rang es from a penalty o f p robation to 364 day s in jail.”

-15-(Emphasis added.) Shortly there afte r, i n t he course of answe ring questions posed by Danielle’ s g ran d m o ther, the court ag ain stated: “And, probation—I ’ll be honest with y ou, g randma
, probation’s our first opt ion .” (Empha sis added.) ¶ 49 When the case was ag ain before the court, on April 8, 2010, the

court first asce rtained that “Mr. B lake,” appar ently the author of the social history repor

t, believed a dispositi on of “one y ear of probation”

was appropr iate. Then, the court inquired of the assistant State’s Attorney prese nt, and was advised that the State “agr ee[d] with the Probation Offic er’ s rec ommendation of one y ear probation

. ” I t was not until defe nse counsel mentioned “some sort of supervision” that 6 the court itself first used that term, and it then beca me immediately
app are nt that the court had previously considere d the constitutional implications of the provision requir i n g State consent, and that the
court anticipated it might “make an interesting ruling ”—though no one had raised the constitutionalit y of t he st atute to that point—and rende r a judgme nt that might take this case “straig ht up to the Supreme Court.” Howeve r, even afte r the court expressed interest in being the 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 order of supervision. ” (E m phasis added.) The clea r implication i s t h e court’s rec og nition that, in the juvenile court sy stem, the trial and subsequent finding of g uilt serv ed as a proce dural line of demar cation, beyond which supervision was no longe r an option. ¶ 50 Howeve r, even assuming, arg u en d o , that both defe nse counse l

a nd the court wer e oblivious to the applicable proce dural sequenc e f o r consideration of supervision, neither th is r ecor d nor case law supports

a finding that Danielle suffe red prejudice or that the proce eding s wer e rende red f

undamentally

unfair. ¶ 51 Wit h respe ct to the circ uit court’s role in the matter, the majority

o pinion eng ag es in no meaning ful analy sis, and discusses no per ti n e nt authority
, befor e concluding that the circ uit judge ’s supposed

Unli ke the m aj ori ty, I see no eviden ce of re cor d to ind ic at e tha t 6

cou nse l’ s ambiguous re fe re nce to “so me s o rt 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 vi s i o n pur sua nt to

sec ti on 5

- 615.

-16-ignor ance of the proce dural sequenc e for consi dering supervision qualifies as the rar e ins tance of second- prong plain err or. I t just is. The majority does not ev en acknowledge
, much less addre ss, our observation in Ver onica C. that we wer e awa re of no structura l mandate—be it a “statutory provision or rule” —that “re quires the
court to ra ise the prospe ct of supervision sua sponte .” See Veronica C.
, 239 I ll. 2d at 146. In a brief, we would not have found it nece ssary to even consider unsupported contentions such as those that comprise the majority ’s ana ly sis; they would have f

ailed to comply with Rule 341. Her e, they

constitute the opinion of the cour t. ¶ 52 The linchpin of this court’s ineffe ctive assistance and plain-e rror

“a naly 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 ex p erie nced criminal prac titioner, confr onted with the fac ts of rec ord, would consider, as rea listi c, this court’s insisten ce t h at the State might, afte r Danielle’ s ref usal to

acc ept responsibility for her actions, and her reje ction of a favor able plea offe r, there afte r have cou n t en ance d the same favor able dispositi o n

. Be y ond that, taking into acc ount the afor ementioned
pro ce d u ral history of the case , who could believe, in light of the State’s persistent posttrial protestations that supervision wou l d b e inappropriate—base d on cited fac tors which wer e all known prior to trial —that the State would have taken a differ ent p o s i tion immediat el y af

t er the prese ntation of evidenc e at trial and befor e a finding of del inquency ? Yet, thi s is—and must be—the center piece of this c ourt’s analy sis if it is to find established either the prejudice
prongof Strickland or

second- prongplain err or. ¶ 53 G iv e n th is s ta tu te ’ s uncommon dispositi onal framework, theSt a te had the statutory authority to t ak e supervision off the table and, though defe nse coun s el an d the court could broac h the matter, they could d o n o thing in that reg ard without the State’s consent, which would obvi o u s ly have been withheld here

. The points identified by the St at e in oral and written argument as the bases for its decision

wer e, as mentioned, all pretrial fac tors, as the following excerpt from the State’s posttrial pleadingmakes c lear : “Althoug h the P eo p l e need not detail their rationale for objecting to the imposit ion of a term of supervision, it should be noted that there are sever al fac t o rs that support the People’s ultimate position. First, as alluded to above , this is a case wher e the minor ref

used to ac ce p t responsibility for her actions. I t is

-17-well established that individ u al s who admit they are g uilty and

acc ept responsibili ty for their actions are g ener ally entitled to a benef it a t se ntencing

. The minor, in c hoosing to r efuse to a cce pt responsibility for her actions, was not entitled to the benef it of a term of supe rvision.
Fur thermore
, the People also considere d that the minor could
very well have b een char g ed with a felony for her actions of beating the 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 bene fit. Finally
, the People considere d the fac ts, circ umstances and
nature of the crime when they objected to a

term of supe rvision. This was not a proper

ty or p o ssession crime. This is a crime wher e the minor phy sically b ea t another teena g e g irl in broad daylight on school g rounds in front of a number of other students. Considering the level of violence that is e scala ting in our school
sy stem, a term of supervision for an individual who ref uses to

acc ept responsibi lity for her actions is unwar rante d and irresponsible.” ¶ 54 On the basis of the rec ord befor e us, we cannot re al i s t i cally say that the S tate, at the critical 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 asce rtain that a multifactor Apprendi violation was harmless beyond a rea s o n able doubt. We

wer e able to say with cer tainty what 12 ration al j u ro rs would have found. Simi larly
, l o o k i n g at this rec ord, 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 t o h er re jection of that plea offe r, Danielle c laims she was prejudice d as a r esult of her attorney ’s supposed def

iciency beca use he failed to inform her that she risked losing the opportunity
to obtain a continuance under supervis i o n by reje cting the State’s Attorney ’s plea offe r. I n addition, she opines, beca use of her attorney ’s misapprehe nsion of the law, he fa i l ed 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 l o s t t he 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 i s enter ed, and had he communicated that to her, she would have a cce pted the State’s plea

-18-offe r and not g one to trial. Or, i f s h e proce eded to trial, she would have r equeste d supervision befor e a f inding wa s entere d. ¶ 56 As previously indicated, it would not have mattere d had counsel

reque sted supervision at the critica l time. As for Danielle’ s claim that counsel failed t o i n fo rm her of the risk inhere nt in reje cting the State’s plea offe r, and her as s er tion that, had he communicated the risk t o her, she would have acc epted the offe r, I would note t here is not one shred of

evidenc e in this recor d to support either a lleg ation. Yet, this court takes that bare claim as an established fac t (see supra ¶¶ 33, 38), and uses i t as part of t he jus tification 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 wa s appar ently

devoid of e rror , should be simply nullified. ¶ 57 At that hear ing, the victim testified that she was a lone when she

and a g irl in Danielle’ s g roup “had words.” 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 the g irls—a fac t c orrobor ated by I van Nava rro, the secur ity
g uard. Whil e the g uard was in betwee n th e t wo gi rls, Danielle interjec ted herse lf into the situation. The victim testified that Danielle punched her three or four times be fore Danielle w as pulled aw ay by another secur ity

g uard. Eve n then, ac cordingto the victim, Danielle “g ot loose and then the othe r sec urity guard ha d to tackle he r.” ¶ 58 I van Navarr o testified t hat t he girl i n Danielle’ s g roup s wu n g at

the victim first, and he stepped in to separ ate them

. He t h en saw Danielle throw punches at t h e v ictim. He did not see the victim hit Danielle or

provoke he r. ¶ 59 Danielle te stified in her own be half, c laiming se lf-def ense. ¶ 60 The trial court reje cted t h at cl ai m , n o t i ng that Danielle c ame

“fr om be ing three 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 di d not believe Danielle’ s story —the judge thought she lied. ¶ 61 I see nothing i n this scena rio, or t his rec ord, t hat wo u l d wa rrant the subversion of our jurispru d ence in order to acc ommodate Danielle; howe ver, the majority has g one to g reat leng ths to do so.

-19-¶ 62 What the m ajority is rea lly doing—w ith no meaning ful analy sis

or citation to pertinent autho ri ty —is saying that Danielle was prejudice d solely by loss of standing to raise an issue conce rning the
statu te’s constitutionalit y , beca use it is otherwise clea

r the State would not have consente d to a continuance under supervision even if Danielle’ s couns el h a d 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 s u cc essfully in the circ uit court—that may or may not have merit. That is the prejudice

. That is the holding that parties may cite henc efor

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

-20-