2013 IL 110810

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

(Docket No. 110810)

In re DANIELLE J., a Minor (The People of the State of Illinois,

Appellant and Cross-Appellee, v. Danielle J., Appellee and CrossAppellant).

Opinion filed December 19, 2013.

JUSTICE BURKE delivered the judgment of the court, with

opinion.

Chief Justice Garman and Justices Freeman, Thomas, Kilbride,

and Theis concurred in the judgment and opinion.

Justice Karmeier concurred in part and dissented in part, with

opinion.

OPINION

¶ 1 In the course of Danielle J.’s delinquency proceedings, the circuit

court of Cook County declared section 5-615(1) of the Juvenile Court

Act of 1987 (the Act) (705 ILCS 405/5-615(1) (West 2010))

unconstitutional on its face and as applied to her. Section 5-615(1)

provides that a juvenile who is not charged with committing first

degree murder, a Class X felony or a forcible felony may obtain a

continuance under supervision “(a) upon an admission or stipulation

by the appropriate respondent or minor respondent of the facts

supporting the petition and before proceeding to adjudication, or after

hearing the evidence at the trial, and (b) in the absence of objection

made in open court by the minor, his or her parent, guardian, or legal

custodian, the minor’s attorney or the State’s Attorney.” (Emphasis

added.) The circuit court held that the statutory authority given to the
State’s Attorney under section 5-615(1)(b) to object to the grant of a

continuance under supervision violates separation of powers, equal

protection and due process guarantees. The court then entered an

order, over the State’s objection, granting respondent a continuance

under supervision for one year.

¶ 2 For reasons that follow, we find that the trial court erred in

reaching the issue of the statute’s constitutionality. We vacate that

finding and remand for further proceedings consistent with our

opinion.

¶ 3 BACKGROUND

¶ 4 On January27, 2010, the State filed a delinquencypetition against

respondent, 15-year-old Danielle J., charging her with having

committed a misdemeanor battery in violation of section 12-3(a)(1)

of the Criminal Code of 1961(720 ILCS 5/12-3(a)(1) (West 2010)).

The petition alleged that Danielle J. was a delinquent minor because,

on January 15, 2010, while at school, she knowingly caused bodily

harm to her classmate, Jada M., by striking her in the face and chest.

¶ 5 On March 8, 2010, prior to the commencement of trial, the State

offered to recommend a nine-month continuance under supervision

in exchange for respondent’s guiltyplea.Respondent rejected the plea

offer and the matter proceeded to trial. At trial, the State presented

two witnesses—Jada M., the alleged victim, and Ivan Navarro, a

security guard at Ace Technical Charter High School, where

respondent and Jada attended classes.

¶ 6 Jada testified that on January 15, 2010, at about 10:30 a.m., she

was in school and walking to a class when she was confronted by

Alesha W., another student. Alesha was accompanied by three

friends, one of whom was respondent. Jada testified that Alesha

began to argue with her and then took a swing at her. When that

happened, Navarro, one of the school’s security guards, immediately

intervened by stepping between her and Alesha. While Navarro was

holding Alesha away from Jada, respondent came around the security

guard and punched Jada in the face three to four times. At that point

a second security guard arrived and took control of respondent.

¶ 7 Navarro testified similarly to Jada. He said that he saw Jada and

Alesha begin to argue and immediately intervened by stepping

between the two girls in an attempt to prevent them from hitting each

other. Navarro also testified that while he was trying to keep Alesha

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and Jada apart, he looked to his left and saw that respondent was

punching Jada in the face. Navarro testified that he saw respondent hit

Jada three or four times with a closed fist before anyone was able to

stop her. Navarro also testified that he did not see Jada hit respondent.

After presenting this testimony, the State rested. 

¶ 8 Defense counsel moved for a directed finding and the trial court

denied the motion. Counsel then called respondent to the stand. In an

effort to establish that she acted in self-defense, respondent testified

as follows. On the morning of January 15, 2010, while attending Ace

Technical Charter High School, respondent met with her friends,

Alesha, Sierra, and Chastity, and walked with them to her next class.

As theywalked, Alesha told respondent that she wanted to “confront”

Jada about something. Moments later, they saw Jada exit a classroom

and start to walk in their direction. According to respondent, when

Jada was about two to three feet away, Alesha started arguing with

Jada. Respondent further testified that a security guard came up to

Jada and Alesha as they were arguing in the corridor and stepped

between them just as they both started throwing punches at each

other. According to respondent, Jada was still throwing punches as

the security guard held Alesha against the wall. Respondent claimed

that one of Jada’s punches passed by respondent’s face, barely

missing her. Respondent admitted that she was not sure whetherJada

was swinging at her or Alesha. Nonetheless, she retaliated by

punching Jada in the face. Respondent also testified that both she and

Jada continued to fight with each other until another security guard

stopped them.

¶ 9 After hearing closing arguments, the trial court rejected

respondent’s self-defense theoryand found her guiltyof misdemeanor

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

social [history] and sentencing.”

¶ 10 On April 8, 2010, the probation officer submitted his social

history report to the court and recommended that respondent be

sentenced to one year of probation. The State agreed with that

recommendation, but suggested that respondent also be ordered to

attend anger management classes. Defense counsel agreed that anger

management classes would be appropriate, but asked if the court

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would consider “some sort of supervision” instead of probation. The 1

court responded:

“THE COURT: Mr. Tountas [defense counsel], a good

point, except juvenile law doesn’t allow me to consider. 

And one of the problems I’m having with this case, and

I’m taking it under consideration, is to [sic] whether to

declare it unconstitutional as to Juvenile Court, whether or not

after a trial I have to—basically what I have to do is get the

State’s permission to enter an order for supervision. That is

not the case in the adult system.

MR. TOUNTAS: That’s correct.

THE COURT: In the adult system, even after a trial a

judge can enter an order of supervision.

The only way around that, I think, would be to find it

unconstitutional as applied to the minor. Due process, I

believe, might be one argument for that. But simply go ahead

and—you’re asking me to consider that?”

¶ 11 The trial court, finding that it was prevented from granting

Danielle a continuance under supervision by the State’s Attorney’s

objection pursuant to section 5-615(1)(b), continued the dispositional

hearing and asked both defense counsel and the State to prepare legal

memoranda regarding the constitutionality of the State’s Attorney

“approval provision” in section 5-615. A new court date was set for

June 17, 2010.

¶ 12 At the June 17, 2010, hearing, defense counsel submitted a

written motion asking the trial court to grant Danielle a continuance

under supervision overtheState’s objection. Counsel asserted that the

trial court had the authority to enter such an order due to the fact that

the State’s Attorney “approval provision” in section 5-615 of the Act

is unconstitutional. Counsel also submitted a memorandum of law, as

requested by the court, in support of his claim that the State’s

Attorney “approval provision” in section 5-615(1)(b) is

unconstitutional. Respondent was not present at this hearing and the

trial court entered no ruling because the State did not have an

opportunity to prepare a written response to respondent’s motion or

It is clear fromthe record that defense counsel’s request for “some sort

1

of supervision” was understood as a request for a continuance under

supervision pursuant to section 5-615.

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the memorandum of law regarding the constitutionality of the statute,

as the court had requested. The court accepted defense counsel’s

tender of the documents and ordered the State to submit its response

and memorandum of law by June 25, 2010. The matter was reset for

disposition on July 1, 2010. 

¶ 13 Before ending the hearing, the court asked the assistant State’s

Attorneys who were present about the training they received and the 2

guidelines they followed when deciding whether to offer or object to

supervision. It was explained that assistant State’s Attorneys receive

no formal training and are given no written guidelines on this specific

topic. It was noted, however, that newer assistant State’s Attorneys,

or “third chairs,” generally receive training on plea offers from the

“first chair” in the courtroom and this includes some instruction on

when to offer supervision and when to oppose it. 

¶ 14 The court asked the assistant State’s Attorneys if they were aware

of the statutory guidelines used by courts for deciding when to grant

supervision in adult court. In the course of that discussion, Assistant 3

State’s Attorney Pillsbury pointed out that in respondent’s case a

recommendation of nine months’ supervision had been offered to the

The assistant State’s Attorneys in court on this date were Assistant 2

State’sAttorney Pillsbury and Assistant State’s Attorney Rubner, who were

standing in for Assistant State’s Attorney Omar, who had been assigned

this case, but was on vacation. Later, a supervisor, Assistant State’s

Attorney Kelley, came to the courtroom and joined in the discussion.

The court was making reference to section 5-6-1(c) of the Unified

3

Code of Corrections (730 ILCS 5/5-6-1(c) (West 2010)), which provides:

“(c) The court may, upon a plea of guilty or a stipulation by the

defendant of the facts supporting the charge or a finding of guilt, defer

further proceedings and the imposition of a sentence, and enter an order

for supervision of the defendant, if the defendant is not charged with

[various misdemeanors or a felony]. If the defendant is not barred from

receiving an order for supervision as provided in this subsection, the

court may enter an order for supervision after considering the

circumstances of the offense, and the history, character and condition

of the offender, if the court is of the opinion that:

(1) the offender is not likely to commit further crimes;

(2) the defendant and the public would be best served if the

defendant were not to receive a criminal record; and

(3) in the best interests of justice an order of supervision is more

appropriate than a sentence otherwise permitted under this Code.”

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respondent prior to trial, but was rejected. Assistant State’s Attorney

Pillsbury 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 entered if the supervision is term—is

completed satisfactorily. *** In this case, there’s already a

finding entered, so the—I guess the point of supervision is

moot. Since there’s already been a finding, you can’t go back

and erase it.”

The court responded,

“Well, that’s one theory, except in adult court, there can be a

finding of guilty and the supervisions [sic] could still be

entered. You’re aware of that; that is correct?”

¶ 15 The assistant State’s Attorney admitted she had no experience in

adult court and, therefore, was unsure of the procedure. The matter

was then held over to July 1, 2010. 

¶ 16 At the July 1, 2010, hearing, defense counsel urged the court to

declare the State’s Attorney “approval provision” within section 5-

615(1) of the Juvenile Court Act unconstitutional, contending that

this provision violates separation of powers and equal protection, and

is fundamentally unfair and inconsistent with the manifest goals of

the Juvenile Court Act. Counsel then asked the court to grant

respondent a continuance under supervision notwithstanding the

State’s Attorney’s objection.

¶ 17 The State, on the other hand, argued that the “approval provision”

in section 5-615(1) is constitutional. The State contended that the

provision had previously been upheld in In re T.W., 101 Ill. 2d 438

(1984), and in People ex rel. Devine v. Stralka, 226 Ill. 2d 445

(2007), and urged the court to find the statute constitutional for that

reason. The State asked that a sentence of probation be imposed.

¶ 18 After hearing argument, the trial court entered the following

ruling:

“In the matter before this Court now in In Re Danielle J.,

10JD336, after a trial, the minor was found guilty of a battery

and no adjudication or sentence has yet to be entered. So

supervision, underthe current statute, 705 ILCS 405/5-615(1),

is not barred assuming no veto by the State’s Attorney.

However, in this case, the State’s Attorney has objected to the

continuance under supervision.”

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¶ 19 The court then explained that it found the cases cited by the State

to be distinguishable or unpersuasive. Further, the court held that,

even if the statute were facially valid, i.e., if it were constitutional, in

general, for a State’s Attorney to have the authority to object to an

order of supervision, it found the State’s Attorney’s exercise of that

right in this case unconstitutional. The court reasoned that the State

had offered to recommend an order of supervision before trial, but

later objected to supervision only because Danielle had opted to go to

trial. The court found that this amounted to a “trial tax” and held that

respondent’s election to go to trial was not an appropriate factor for

the State to consider when deciding whether to object to a grant of

supervision. In addition, the court noted that the State claimed to be

objecting to the order of supervision because Danielle’s crime was

one of violence, i.e., battery. However, the court pointed out that the

State was aware of the nature of the charged crime when it agreed to

recommend supervision before trial. Thus, the court found this

purported reason for the State’s posttrial objection to be

disingenuous. 

¶ 20 Finally, the court noted that the State’s memorandum confirmed

that assistant State’s Attorneys receive no formal training on when to

agree or object to an order of supervision; that there is no written

policy on when an assistant State’s Attorney should agree or object

to supervision; and there are no statutory guidelines in the Juvenile

Court Act for determining when supervision might be an appropriate

sentence, although there are statutory guidelines for granting

supervision to adults (see 730 ILCS 5/5-6-1 (West 2010)). In light of

these facts, the court held that the State’s Attorney’s exercise of her

authority to object to an order of supervision was arbitrary and, as

such, a violation of due process. The court declared section 5-615 of

the Juvenile Court Act unconstitutional on its face and as applied to

respondent, stating:

“In considering there is no rational basis for the ***

legislature to treat similarly situated adults and juveniles

differently with regard to a judge’s authority to impose

supervision, that constraining a judge’s ability to grant a

sentence of supervision is counter-intuitive to the Juvenile

Court Act’s specific goal of rehabilitation and the Act’s grant

of discretion to the judge’s determining the best interest of the

juvenile and given the State’s Attorney’s veto power over the

authority of supervision, I’m finding it to be a violation of

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separation of powers and of equal protection and of due

process.”

¶ 21 Having declared the State’s Attorney “approval provision” in

section 5-615 unconstitutional, the trial court entered an order

granting respondent a continuance under supervision over the State’s

Attorney’s objection. Pursuant to the order, Danielle was subject to

court supervision for one year, during which time she was required to

continue attending school, complete 20 hours of community service,

and refrain from any gang, gun, or drug contact. Danielle also was

referred to the Clinical Interventions Unit for anger management and

individual counseling. 

¶ 22 On July 13, 2010, the court amended the above ruling and, in

conformance with Supreme Court Rule 18, issued an order finding

section 5-615(1) of the Juvenile Court Act unconstitutional because

it does not permit a continuance under supervision if the State’s

Attorney objects in open court. The grounds listed were: violation of

separation of powers; violation of equal protection; and “violation of

due process arbitrarily enforced.”

¶ 23 The State appealed directly to this court pursuant to Supreme

Court Rule 603 (eff. Oct. 1, 2010).

¶ 24 ANALYSIS

¶ 25 Although the State comes before this court on direct appeal from

the circuit court’s ruling that section 5-615(1) of the Juvenile Court

Act (705 ILCS 405/5-615(1) (West 2010)) is unconstitutional, the

State presents no argument regarding the constitutionality of this

statutory provision. Instead, relying on our decision in In re Veronica

C., 239 Ill. 2d 134 (2010), the State contends that the trial court erred

in reaching the issue of the statute’s constitutionality and, therefore,

the ruling should be reversed.

¶ 26 We agree that our decision in Veronica C. controls the resolution

of this appeal. In Veronica C., the respondent-minor, like Danielle

here, was charged with misdemeanor battery against a schoolmate,

was tried and found guilty as charged. See In re Veronica C., 239 Ill.

2d at 138. A continuance under supervision was not requested prior

to the court entering a finding of guilt. After the matter proceeded

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past the first phase proceedings to adjudication and sentencing, 4

defense counsel argued that Veronica should be adjudicated

delinquent and her case closed with no sentence imposed. Id. at 141.

The court rejected that proposal and imposed a sentence of 12

months’ probation. 

¶ 27 Veronica appealed to the appellate court, where, for the first time,

she challenged the constitutionality of the State’s Attorney “approval

provision” in section 5-615(1). Veronica argued that the statute

violates equal protection and separation of powers because it permits

the State’s Attorney to bar the circuit court from granting a minor a

continuance under supervision. The appellate court upheld the

constitutionality of the statute and affirmed the circuit court’s

judgment and sentence. 

¶ 28 We granted Veronica’s petition for leave to appeal and affirmed

the appellate court’s judgment, but did not reach the issue of the

statute’s constitutionality. Rather, we held that Veronica lacked

standing to challenge the constitutionality of the State’s Attorney

“approval provision” in section 5-615(1) because she had not been

adversely affected by the operation of that provision. Id. at 147 (“A

party may not raise a constitutional challenge to a provision of a

statute that does not affect him or her.”) (citing People v. Malchow,

193 Ill. 2d 413, 425 (2000)). In reaching that determination, we

interpreted section 5-615(1) of the Juvenile Court Act as requiring

“that the possibility of supervision be broached and considered, if at

all, before ‘proceeding to findings and adjudication.’ ” (Emphasis in

original.) Id. at 146. “Adjudication” in this context, we said, meant an

“adjudication of delinquency, the formal culmination of the first

phase proceedings.” Id. at 146 n.1. In light of our interpretation of the

statute, we held that it was the failure to broach the subject of

supervision prior to a finding of guilt being entered, and not the

State’s objection, which had prevented her from receiving a

continuance under supervision. We concluded, therefore, that even if

we were to hold the “approval provision” of the statute

unconstitutional, Veronica would not be entitled to the relief she

sought—a continuance under supervision—because the failure to

request supervision prior to a finding of guilt being entered made the

In Veronica C. we explained that juvenile proceedings consist of three 4

separate and distinct phases: the findings phase, the adjudication phase, and

the dispositional phase.

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State’s Attorney’s objections irrelevant. Accordingly, we held that

Veronica was unaffected by the statute’s operation and, thus, lacked

standing to challenge the statute’s constitutionality. For that reason,

we did not need to address that issue in her appeal. 

¶ 29 In the case at bar, Danielle, like Veronica in Veronica C., was

statutorily precluded from obtaining a continuance under supervision

once the trial court entered its finding that Danielle was guilty of

misdemeanor battery. Thus, when Danielle’s attorney requested

supervision at the adjudication and sentencing hearing, that request

came too late. See In re Veronica C., 239 Ill. 2d at 146 (the plain

language of the statute requires that the possibility of supervision be

broached and considered, if at all, before proceeding to findings and

adjudication). Furthermore, once the finding of guilt was entered, not

only was defense counsel statutorily precluded from seeking a

continuance under supervision, the trial court also was statutorily

precluded from granting a continuance under supervision, regardless

of whether the State’s Attorney objected. For this reason, by the time

Danielle’s counsel sought a continuance under supervision at the

adjudication and sentencing phases of the proceedings, the statutory

veto power exercised by the State’s Attorney was no longer relevant.

Therefore, it was improper for the trial court to consider the

constitutionality of the “approval provision” within section 5-615(1).

We find that the trial court erred by doing so and, thus, vacate the

finding of unconstitutionality. In addition, because the trial court

lacked statutory authority to grant a continuance under supervision

once it found Danielle guilty, its subsequent order granting Danielle

supervision is void and must be reversed. 

¶ 30 The State contends that upon reversing the order granting

Danielle a continuance under supervision, we must remand the matter

to the circuit court with instructions that the trial court enter a

disposition of probation. Danielle, however, argues in a cross-appeal5

that she received ineffective assistance of counsel, or that plain error

occurred which denied her due process, because neither her attorney

nor the trial court applied or understood the plain meaning of the

juvenile supervision statute and, as a result, failed to broach the

matter of supervision at the appropriate time. She asks that we

fashion an equitable remedy to address the prejudice she suffers as a

On August 28, 2012, we entered an order designating the second 5

argument in respondent’s brief as a cross-appeal.

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result of her counsel’s deficient performance and the fundamental

unfairness of the proceedings. She suggests two possible remedies:

(1) that we review the trial court’s finding that section 5-615 is

unconstitutional, or (2) that we remand the matter for a new first

phase proceeding. Thus, before we can decide the proper disposition

of this case, we must consider whether, as Danielle argues, she

received ineffective assistance of counsel or whether the proceedings

were fundamentally unfair, constituting plain error.

¶ 31 There is no question that a minor charged with committing an

offense, like Danielle here, is entitled to the effective assistance of

counsel in juvenile delinquencyproceedings. See People v. AustinM.,

2012 IL 111194, ¶ 76 (minors in delinquency proceedings have a

nonwaivable statutory right to counsel, as well as a constitutional

right to effective assistance of counsel). The standard utilized to

gauge the effectiveness of counsel in juvenile proceedings is the

Strickland standard, used in criminal cases. See Strickland v.

Washington, 466 U.S. 668 (1984). Under this standard, ineffective

assistance of counsel is established if the minor can demonstrate: (1)

counsel’s performance failed to meet an objective standard of

competence and (2) counsel’s deficient performance resulted in

prejudice to the minor. See People v. Denzel W., 237 Ill. 2d 285

(2010); People v. Evans, 186 Ill. 2d 83, 93 (1999).

¶ 32 Further, under Illinois Supreme Court Rule 615 and Illinois’

plain-error doctrine, a reviewing court may consider defects in

proceedings affecting substantial rights if a clear and obvious error

occurred and that error affected the fairness of the proceedings and

challenged the integrity of the judicial process. People v. Piatkowski,

225 Ill. 2d 551, 565 (2007). “Plain error” may properly be invoked

where a court misapprehends or misapplies the law. See People v.

Wilkins, 343 Ill. App. 3d 147, 149-50 (2003) (a trial court’s

misapprehension of a minimum sentence necessitates a new

sentencing hearing when it appears that the trial court’s

misunderstanding influenced the sentencing decision); People v.

Miranda, 329 Ill. App. 3d 837, 845 (2002) (reversal required where

trial court denied defendant a forfeiture hearing based on its

misapprehension of the law). 

¶ 33 Section 5-615 permits an order of supervision “upon an admission

or stipulation by the appropriate respondent or minor respondent of

the facts supporting the petition and before proceeding to

adjudication, or after hearing the evidence at the trial.” We said in

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Veronica C. that the plain meaning of this language meant that, in

juvenile delinquency proceedings, a continuance under supervision

must be considered, if at all, prior to a finding of guilt being entered

and the culmination of the first-phase proceeding. Danielle asserts

that her attorney was deficient because he either did not know these

requirements or misapprehended them. Danielle also claims she was

prejudiced as a result of her attorney’s deficiency because he failed to

inform her that she risked losing the opportunity to obtain a

continuance under supervision byrejecting theState’sAttorney’s plea

offer. In addition, because of her attorney’s misapprehension of the

law, he failed to request supervision after proceeding to trial, but

before a finding of guilt was entered. As a result, she lost the

opportunity to obtain a continuance under supervision. Danielle

asserts that, had her attorney known that a continuance under

supervision was statutorily precluded once a finding of guilt is

entered, and had he communicated that to her, she would have

accepted the State’s plea offer and not gone to trial. Or, if she

proceeded to trial, she would have requested supervision before a

finding was entered. 

¶ 34 Danielle also contends that her juvenile proceedings were

fundamentally unfair because the trial court also misapprehended the

plain meaning of the statute, i.e., that a continuance under supervision

is statutorily precluded once a finding of guilt is entered. Danielle

concedes that, generally, a trial court has no obligation to broach the

subject of a continuance under supervision after trial and before

finding a respondent guilty. However, in this case the trial court’s

subsequent actions demonstrated that it believed that supervision was

the proper disposition for Danielle. Therefore, the failure to broach

the subject of a continuance under supervision at the proper time was

a result of the court’s misunderstanding of the plain language of the

statute, which rendered the proceedings fundamentally unfair.

Danielle was prejudiced because, absent the trial court’s

misunderstanding of the law, Danielle’s opportunity to obtain a

continuance under supervision would not have been lost.

¶ 35 We agree with Danielle. In Veronica C. we held that the plain

language of the statute required that the subject of supervision be

broached, if at all, prior to the court entering a finding of guilt. In the

case at bar, however, both counsel and the court demonstrated a

misapprehension of the law when they failed to broach the subject of

a continuance under supervision prior to the entry of a finding of

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guilt. In fact, the record affirmatively demonstrates that both counsel

and the court believed a continuance under supervision could be

granted at the dispositional hearing, even though a finding of guilt

had already been entered. Moreover, the trial judge repeatedly held

that supervision was available to Danielle but for the State’s objection

and then granted Danielle a continuance under supervision over the

State’s Attorney’s objection, finding the State’s Attorney “approval

provision” unconstitutional. The record clearlydemonstrates that both

counsel and the trial court were unaware that a continuance under

supervision was statutorily precluded once a finding of guilt was

entered. We find, therefore, under the circumstances of this case, the

failure of both counsel and the trial court to raise the option of

supervision at an earlier stage in the proceedings, before a finding of

guilt was entered, was error which affected Danielle’s substantial

rights. We also find that Danielle received ineffective assistance of

counsel, was prejudiced by her attorney’s deficient performance, and

that the trial court’s error affected the fairness of the proceedings

below and challenged the integrity of the judicial process. Danielle

was prejudiced by these errors because they denied her the

opportunity to obtain a continuance under supervision. 

¶ 36 In Veronica C., Veronica never argued ineffective assistance of

counsel, plain error, or that “the trial court’s failure to raise the option

of supervision at an earlier stage in the proceedings affected the

fairness of proceedings below and challenged the integrity of the

judicial process.” See In re Veronica C., 239 Ill. 2d at 147. As a

result, we did not have the opportunity to consider what remedy

should be afforded to someone who had established such claims.

Here, Danielle suggests that a proper equitable remedy for her

counsel’s and the trial court’s errors would be that this court review

the trial court’s finding that the State’s Attorney“approval provision”

in section 5-615 is unconstitutional. In the alternative, she asks that

we remand this matter to the trial court for a new first phase hearing.

¶ 37 We decline the invitation to consider the constitutionality of the

section 5-615(1). Danielle, like Veronica in Veronica C., is precluded

bystatute from obtaininga continuance under supervision because the

subject of supervision was not raised prior to a finding of guilt being

entered, not because of the State’s Attorney “approval provision”

within section 5-615. Thus, the constitutionality of the State’s

Attorney approval provision in the statute is not properly before this

court. 

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¶ 38 We agree, however, that it would be appropriate to remand this

matter for a new first-phase hearing. By doing so, Danielle could be

properly advised by counsel that if she proceeds to trial and is

unsuccessful, the grant of a continuance under supervision would be

subject to the State’s Attorney’s approval and might be lost. In this

way, Danielle would be able to make an informed and knowing

decision about whether to accept the State’s plea offer, should that

offer be reinstated. 

¶ 39 In the event that, upon remand, the State does not extend an offer

of supervision and the matter should proceed to trial, Danielle would

have the opportunity to request a continuance under supervision from

the court prior to a finding being entered. This would not be a futile

exercise because, as the State made clear at oral argument, there is no

evidence that the State would have objected to a supervision order

being entered at that juncture because Danielle never requested

supervision prior to the court entering a finding of guilt. Of course, in

the event that the State objects to the court granting Danielle

supervision, Danielle could, at that time, properly raise a challenge to

the constitutionality of the statute.

¶ 40 For the reasons stated above, we vacate the circuit court’s finding

that section 5-615 is unconstitutional. We reverse the order of

supervision and remand to the circuit court for further proceedings

consistent with this opinion.

¶ 41 Circuit court judgment vacated in part and reversed in part.

¶ 42 Cause remanded.

¶ 43 JUSTICE KARMEIER, concurring in part and dissenting in part:

¶ 44 As the majority acknowledges, the trial court lacked the statutory

authority to grant a continuance under supervision once it found

Danielle guilty. Consequently, its order grantingDanielle supervision

is void and must be reversed. Further, as the majority finds, it was

improper for the trial court to consider the constitutionality of the

“approval provision” within section 5-615(1). Thus, the circuit

court’s finding of unconstitutionalitymust also be vacated. However,

for the reasons hereafter set forth, I disagree with the discussion that

underpins the majority’s remand of this case for “a new first phase

hearing.”

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¶ 45 Danielle’s claims of ineffective assistance of counsel and plain

error are meritless, Neither the facts, nor the law, nor considerations

of equity justify the remand that is the culmination of the majority’s

errant analysis. As the State suggests, this court should remand the

matter to the circuit court with directions that the circuit court enter

a disposition of probation.

¶ 46 The majority agrees with the arguments advanced by Danielle in

her cross-appeal. See supra ¶¶ 33-34. Even a cursory examination of

Danielle’s brief exposes inherent inconsistencies in Danielle’s

position. Danielle’s issue statement reads in part: “Danielle received

ineffective assistance of counsel and/or she was denied due process

where neither her attorney nor the trial court applied or understood

the plain wording of the juvenile supervision statute such that each

failed to broach the matter of supervision at the appropriate time.”

(Emphasis added.) A good part of the rest of the brief is devoted to

showing us how “clairvoyan[ce]” would have been required to

anticipate “the previously unarticulated interpretation of the

supervision statute that this Court’s decision in Veronica C.

represents” and that neither trial counsel nor the circuit court could

have seen it coming. So which is it? Were both so deficient in their

understanding or remiss in their edification that they could not grasp

the “plain wording” of the statute? Or were they both the innocent,

but otherwise competent, victims ofwhat Danielle would characterize

as this court’s blindsiding decision in Veronica C.?

¶ 47 If the latter, then Danielle cannot establish the first prong of

Strickland, i.e., that counsel’s performance was deficient. As we

noted in People v. English, 2013 IL 112890, ¶ 34, counsel is not

deficient for failing to anticipate legal developments that could not

have been foreseen. 

¶ 48 Moreover, it is not clear that the trial court was confused. The

court’s statements during the proceedings leading up to its ruling on

the statute’s constitutionality demonstrate that it appreciated the

difference between “supervision” and “probation.” Therefore, its

consistent references, immediately after trial, to “probation” as the

most lenient disposition available in Danielle’s case suggest that the

court, at that point, understood the time for supervision had passed.

After the trial judge advised Danielle he did not believe her version

of events, and pronounced her guilty of misdemeanor battery, the

court stated: “[Y]ou’ve been convicted of a misdemeanor battery

today. It ranges from a penalty of probation to 364 days in jail.”

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(Emphasis added.) Shortly thereafter, in the course of answering

questions posed by Danielle’s grandmother, the court again stated:

“And, probation—I’ll be honest with you, grandma, probation’s our

first option.” (Emphasis added.) 

¶ 49 When the case was again before the court, on April 8, 2010, the

court first ascertained that “Mr. Blake,” apparently the author of the

social history report, believed a disposition of “one year of probation”

was appropriate. Then, the court inquired of the assistant State’s

Attorney present, and was advised that the State “agree[d] with the

Probation Officer’s recommendation of one year probation.” It was

not until defense counsel mentioned “some sort of supervision” that 6

the court itself first used that term, and it then became immediately

apparent that the court had previously considered the constitutional

implications of the provision requiring State consent, and that the

court anticipated it might “make an interesting ruling”—though no

one had raised the constitutionality of the statute to that point—and

render a judgment that might take this case “straight up to the

Supreme Court.” However, even after the court expressed interest in

being the vehicle for a ruling that would send the case on its way to

this court, the circuit court still appeared to recognize that the time for

supervision, in a juvenile court context, had passed, as evinced by the

following statement: “In the adult system, even after trial a judge can

enter an order of supervision.” (Emphasis added.) The clear

implication is the court’s recognition that, in the juvenile court

system, the trial and subsequent finding of guilt served as a

procedural line of demarcation, beyond which supervision was no

longer an option. 

¶ 50 However, even assuming, arguendo, that both defense counsel

and the court were oblivious to the applicable procedural sequence for

consideration of supervision, neither thisrecord nor case law supports

a finding that Danielle suffered prejudice or that the proceedings were

rendered fundamentally unfair. 

¶ 51 With respect to the circuit court’s role in the matter, the majority

opinion engages in no meaningful analysis, and discusses no pertinent

authority, before concluding that the circuit judge’s supposed

Unlike the majority, I see no evidence of record to indicate that

6

counsel’s ambiguous reference to “some sort of supervision” was, at that

time, a specific reference to a continuance under supervision pursuant to

section 5-615.

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ignorance of the procedural sequence for considering supervision

qualifies as the rare instance of second-prong plain error. It just is.

The majority does not even acknowledge, much less address, our

observation in Veronica C. that we were aware of no structural

mandate—be it a “statutory provision or rule”—that “requires the

court to raise the prospect of supervision sua sponte.” See Veronica

C., 239 Ill. 2d at 146. In a brief, we would not have found it necessary

to even consider unsupported contentions such as those that comprise

the majority’s analysis; they would have failed to comply with Rule

341. Here, they constitute the opinion of the court.

¶ 52 The linchpin of this court’s ineffective assistance and plain-error

“analyses” is the transparent fiction that the State might not have

objected to supervision had the matter been timely broached by either

defense counsel or the court. No experienced criminal practitioner,

confronted with the facts of record, would consider, as realistic, this

court’s insistence that the State might, after Danielle’s refusal to

accept responsibility for her actions, and her rejection of a favorable

plea offer, thereafter have countenanced the same favorable

disposition. Beyond that, taking into account the aforementioned

procedural history of the case, who could believe, in light of the

State’s persistent posttrial protestations that supervision would be

inappropriate—based on cited factors which were all known prior to

trial—that the State would have taken a different position

immediately after the presentation of evidence at trial and before a

finding of delinquency? Yet, this is—and must be—the centerpiece

of this court’s analysis if it is to find established either the prejudice

prong of Strickland or second-prong plain error. 

¶ 53 Given thisstatute’s uncommon dispositional framework, the State

had the statutory authority to take supervision off the table and,

though defense counsel and the court could broach the matter, they

could do nothing in that regard without the State’s consent, which

would obviously have been withheld here. The points identified by

the State in oral and written argument as the bases for its decision

were, as mentioned, all pretrial factors, as the following excerpt from

the State’s posttrial pleading makes clear:

“Although the People need not detail their rationale for

objecting to the imposition of a term of supervision, it should be

noted that there are several factors that support the People’s

ultimate position. First, as alluded to above, this is a case where

the minor refused to accept responsibility for her actions. It is

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well established that individuals who admit they are guilty and

accept responsibility for their actions are generally entitled to a

benefit at sentencing. The minor, in choosing to refuse to accept

responsibility for her actions, was not entitled to the benefit of a

term of supervision.

Furthermore, the People also considered that the minor could

very well have been charged with a felony for her actions of

beating the victim on school grounds. By charging the minor with

the misdemeanor offense of battery, the People had already given

the minor a substantial benefit. 

Finally, the People considered the facts, circumstances and

nature of the crime when they objected to a term of supervision.

This was not a property or possession crime. This is a crime

where the minor physically beat another teenage girl in broad

daylight on school grounds in front of a number of other students.

Considering the level of violence that is escalating in our school

system, a term of supervision for an individual who refuses to

accept responsibility for her actions is unwarranted and

irresponsible.”

¶ 54 On the basis of the record before us, we cannot realistically say

that the State, at the critical time, might have agreed to supervision.

This court, in People v. Rivera, 227 Ill. 2d 1, 26-27 (2007), was able

to examine the record on appeal and ascertain that a multifactor

Apprendi violation was harmless beyond a reasonable doubt. We

were able to say with certainty what 12 rational jurors would have

found. Similarly, looking at this record, there is no doubt what the

State’s position would have been, with respect to supervision, at any

point after Danielle rejected the State’s favorable plea offer. 

¶ 55 With respect to her rejection of that plea offer, Danielle claims

she was prejudiced as a result of her attorney’s supposed deficiency

because he failed to inform her that she risked losing the opportunity

to obtain a continuance under supervision by rejecting the State’s

Attorney’s plea offer. In addition, she opines, because of her

attorney’s misapprehension of the law, he failed to request

supervision after proceeding to trial, but before a finding of guilt was

entered. As a result, Danielle concludes, she lost the opportunity to

obtain a continuance under supervision. Danielle asserts that, had her

attorney known that a continuance under supervision was statutorily

precluded once a finding of guilt is entered, and had he

communicated that to her, she would have accepted the State’s plea

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offer and not gone to trial. Or, if she proceeded to trial, she would

have requested supervision before a finding was entered. 

¶ 56 As previously indicated, it would not have mattered had counsel

requested supervision at the critical time. As for Danielle’s claim that

counsel failed to inform her of the risk inherent in rejecting the

State’s plea offer, and her assertion that, had he communicated the

risk to her, she would have accepted the offer, I would note there is

not one shred of evidence in this record to support either allegation.

Yet, this court takes that bare claim as an established fact (see supra

¶¶ 33, 38), and uses it as part of the justification for its remand “for

a new first-phase hearing” (supra ¶ 38). This court’s assumptions are

unwarranted. There is no reason that Danielle should be afforded the

opportunity to start from scratch, or that her adjudicatory hearing,

which was apparently devoid of error, should be simply nullified. 

¶ 57 At that hearing, the victim testified that she was alone when she

and a girl in Danielle’s group “had words.” That girl hit the victim in

the face. The victim stated that a nearby security guard stepped in to

separate the girls—a fact corroborated by Ivan Navarro, the security

guard. While the guard was in between the two girls, Danielle

interjected herself into the situation. The victim testified that Danielle

punched her three or four times before Danielle was pulled away by

another security guard. Even then, according to the victim, Danielle

“got loose and then the other security guard had to tackle her.” 

¶ 58 Ivan Navarro testified that the girl in Danielle’s group swung at

the victim first, and he stepped in to separate them. He then saw

Danielle throw punches at the victim. He did not see the victim hit

Danielle or provoke her. 

¶ 59 Danielle testified in her own behalf, claiming self-defense. 

¶ 60 The trial court rejected that claim, noting that Danielle came

“from being three people back” to the forefront of the altercation, at

which time she punched the victim. The court considered the security

guard a “crucial witness,” and observed that he corroborated critical

aspects of the victim’s testimony. The court concluded: “I do not buy

into the affirmative defense in this case of self-defense.” The trial

judge stated he did not believe Danielle’s story—the judge thought

she lied.

¶ 61 I see nothing in this scenario, or this record, that would warrant

the subversion of our jurisprudence in order to accommodate

Danielle; however, the majority has gone to great lengths to do so.

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¶ 62 What the majority is really doing—with no meaningful analysis

or citation to pertinent authority—is saying that Danielle was

prejudiced solely by loss of standing to raise an issue concerning the

statute’s constitutionality, because it is otherwise clear the State

would not have consented to a continuance under supervision even if

Danielle’s counsel had timely broached that subject. The court is

saying that counsel’s supposed incompetence resulted in forfeiture of

an opportunity to argue a constitutional issue before this

court—counsel has already done so successfully in the circuit

court—that may or may not have merit. That is the prejudice. That is

the holding that parties may cite henceforth.

¶ 63 I cannot subscribe to that portion of the majority opinion.

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