In re S. P.

FIRST DIVISION
June 8, 1998


No. 1-96-3302

In re S.P., a Minor

(The People of the State of Illinois,

Petitioner-Appellee,

v.

S.P.,

Respondent-Appellant).)
)
)
)
)
)
)
)
)
)
)Appeal from the
Circuit Court of
Cook County

No. 96 JD 00708

Honorable
Carol A. Kelly,
Judge Presiding.

JUSTICE GALLAGHER delivered the opinion of the court:
A jury found the juvenile respondent, S.P., delinquent of
attempted armed robbery. Pursuant to the habitual juvenile
offender statute, section 5-35 of the Juvenile Court Act of 1987
(705 ILCS 405/5-35 (West 1996)), the trial court committed
respondent to the Illinois Department of Corrections, youth
division, until his twenty-first birthday. On appeal, respondent
contends that the habitual juvenile offender statute was
erroneously applied to him, where respondent's two prior
adjudications of delinquency did not result in his being adjudged
a ward of the court.
The facts of the case are as follows. Respondent was
adjudicated delinquent on July 20, 1994, under petition No. 94 JD
6890, for the felony offense of possession of a controlled
substance. This offense occurred on April 3, 1994. Respondent
was ordered to return to court for a dispositional hearing on
September 14, 1994. Because he failed to appear on that date, a
juvenile arrest warrant was issued for respondent. This arrest
warrant was executed on May 21, 1995, when respondent was again
arrested for the felony offense of possession of a controlled
substance. Respondent's subsequent arrest formed the basis for
petition No. 95 JD 8210; this latter petition also resulted in
respondent's being adjudicated delinquent, this time on June 7,
1995. The dispositional hearing for both cases, petition Nos. 94
JD 6890 and 95 JD 8210, occurred on July 19, 1995, wherein
respondent was (among other things) adjudged a ward of the court
and placed on probation for one year.
A few months later, respondent was arrested for the present
offense, attempted armed robbery, on January 11, 1996 (petition
No. 96 JD 00708). The State moved to prosecute respondent as an
habitual juvenile offender. Respondent moved to strike the
State's motion, arguing that judgment was not entered on his two
previous adjudications of delinquency until the July 19, 1995,
dispositional hearing; as a result, respondent did not qualify as
an habitual juvenile offender. The trial court denied
respondent's motion.
The jury found respondent, S.P., delinquent of attempted
armed robbery. A dispositional hearing was held on July 3, 1996.
At that hearing, the State presented certified copies of the
dispositions in No. 94 JD 6890 and No. 95 JD 8210. The trial
court adjudged respondent a ward of the court. As required by
the habitual juvenile offender statute, the trial court then
committed respondent to the Illinois Department of Corrections,
youth division, until his twenty-first birthday. 705 ILCS 405/5-
35(f) (West 1996).
Respondent asserts that the trial court erroneously
determined that he qualified to be sentenced as an habitual
juvenile offender. In his brief, respondent frames the issue as
follows:
"Whether the term 'adjudicated a delinquent minor'
under the Habitual Juvenile Offender statute means a
mere finding of delinquency on the offense(s) alleged
in the Petition for Adjudication of Wardship or whether
it means, in addition to a finding of delinquency, an
Adjudication of Wardship and a Dispositional Order have
been entered." (Emphasis in original.)

In support of his contention that the trial court erroneously
committed him pursuant to the habitual juvenile offender statute,
respondent argues: (1) the trial court's holding denied
respondent all of the procedural rights of an adult in a criminal
proceeding, in violation of the purpose and policy of the
Juvenile Court Act of 1987 (Juvenile Court Act or Act) (705 ILCS
405/1-2(3)(a) (West 1996)); and (2) prosecuting respondent, and
those similarly situated, as an habitual juvenile offender
frustrates the purpose of the habitual juvenile offender statute
because respondent is denied the full opportunity to utilize the
rehabilitative services available under the Juvenile Court Act.
In the Juvenile Court Act, a "delinquent minor" is defined
as "any minor who prior to his 17th birthday has violated or
attempted to violate *** any federal or state law or municipal
ordinance." 705 ILCS 405/5-3(1) (West 1996). Elsewhere in this
act, an "habitual juvenile offender" is defined as follows:
"(a) Definition. Any minor having been twice
adjudicated a delinquent minor for offenses which, had
he been prosecuted as an adult, would have been
felonies under the laws of this State, and who is
thereafter adjudicated a delinquent minor for a third
time shall be adjudged an habitual juvenile offender
where:

1. the third adjudication is for an offense
occurring after adjudication on the second; and

2. the second adjudication was for an offense
occurring after adjudication on the first; and

3. the third offense occurred after January 1,
1980; and

4. the third offense was based upon the commission
of or attempted commission of the following offenses:
*** robbery or armed robbery ***." 705 ILCS 405/5-35
(West 1996).

This court considered an argument similar to the one posed
by respondent in In re Stokes, 108 Ill. App. 3d 637, 439 N.E.2d 514 (1982). In that case, the respondent asserted that
sentencing under the habitual juvenile offender statute requires
proof not only of prior findings of delinquency but also of prior
adjudications of wardship on those findings. Stokes, 108 Ill.
App. 3d at 642, 439 N.E.2d at 517-18. This court disagreed,
holding that "[d]elinquency and wardship are distinct concepts."
108 Ill. App. 3d at 642, 439 N.E.2d at 518. The court went on to
note that the plain language of the Act requires only prior
adjudications of delinquency, expressly rejecting the notion that
a minor must have been adjudged a ward of the court in order for
the statute to apply. 108 Ill. App. 3d at 642, 439 N.E.2d at
518. We find that Stokes controls the outcome of this case.
In his brief, respondent fails to cite In re Stokes, let
alone attempt to distinguish it from the case sub judice. At
oral argument, respondent endeavored to distinguish Stokes by
stating that, in Stokes, this court dealt only with the question
of whether the State need establish prior adjudications of
wardship before applying the habitual juvenile offender statute.
By contrast, respondent purports to present the question of
whether a dispositional order is required for each prior
adjudication of delinquency before the habitual juvenile offender
statute may apply.
Respondent offers this court a distinction without a
difference. Upon an adjudication of delinquency, the trial court
may resolve the case in one of two ways. First, the trial court
conducts a dispositional hearing to determine whether the best
interests of the minor and the public require that he be made a
ward of the court, and, if so, the court shall determine the
proper disposition best serving the interests of the minor and
the public. 705 ILCS 405/5-22 (West 1996). Alternatively, if
the trial court decides that an adjudication of wardship is not
in the best interests of the minor and the public, it may dismiss
the petition and discharge the minor--even after a finding of
delinquency. In re Beasley, 66 Ill. 2d 385, 391, 362 N.E.2d 1026
(1977), aff'g 35 Ill. App. 3d 816, 342 N.E.2d 803 (1976). Thus,
a dispositional order may not ensue without an underlying
adjudication of wardship. 705 ILCS 405/5-23 (West 1996)(listing
the types of dispositional orders that may be made respecting
wards of the court).
Nevertheless, respondent argues that the trial court's
ruling violates the purpose of the Juvenile Court Act because it
denies respondent the same procedural rights afforded to adults.
The Act states that in every proceeding under the Juvenile Court
Act, the "procedural rights assured to the minor shall be the
rights of adults unless specifically precluded by laws which
enhance the protection of such minors." 705 ILCS 405/1-2(3)(a)
(West 1996).
Respondent notes that mere findings of guilt do not
translate into convictions for adults; rather, a conviction is
defined as a judgment of conviction or sentence entered upon a
verdict, finding, or plea of guilty of an offense. 730 ILCS 5/5-
1-5 (West 1996). Respondent analogizes a finding or verdict of
delinquency to a finding or verdict of guilt, an adjudication of
wardship and dispositional order to a sentence, and an
adjudication of delinquency to a conviction. Essentially,
respondent argues that he enjoys procedural rights identical to
those offered to adult criminal defendants.
In support of his analogy, respondent cites People v.
Bryant, 278 Ill. App. 3d 578, 663 N.E.2d 105 (1996). There, a
defendant was sentenced to natural life imprisonment under the
Habitual Criminal Act (720 ILCS 5/33B-1 (West 1996)). Bryant,
278 Ill. App. 3d at 580, 663 N.E.2d at 107. The court received
into evidence certified copies of two convictions for armed
robbery, where the offenses occurred in 1976. 278 Ill. App. 3d
at 582, 639 N.E.2d at 108. The defendant received concurrent
sentences of four and six years for the two offenses on the same
day in 1978. The trial court in Bryant determined that "the two
convictions based on the 1978 pleas qualified as the defendant's
first conviction for purposes of the Habitual Criminal Act." 278
Ill. App. 3d at 582, 639 N.E.2d at 109. Respondent invites this
court to apply the same logic to the present case.
We decline respondent's invitation. First and foremost, our
supreme court has declared that juvenile delinquency proceedings
are not criminal in nature, thus stripping much of the force from
respondent's analogy. In re Beasley, 66 Ill. 2d at 390, 362 N.E.2d at 1025, quoting McKeiver v. Pennsylvania, 403 U.S. 528,
541, 29 L. Ed. 2d 647, 658, 91 S. Ct. 1976, 1984 (1971).
Moreover, as noted above, an adjudication of wardship occurs upon
a finding of delinquency only where the court determines that
such a result is in the best interests of the minor and the
public (In re Stokes, 108 Ill. App. 3d at 642, 439 N.E.2d at 518,
citing In re J.R., 82 Ill. App. 3d 714, 403 N.E.2d 114 (1980));
the trial court may even dismiss the petition and discharge the
minor if the court, in its discretion, chooses not to adjudge the
minor a ward of the court (Beasley, 66 Ill. 2d at 391, 362 N.E.2d
at 1026). In contrast, several offenses under the Unified Code
of Corrections carry mandatory minimum sentences upon a plea,
finding or verdict of guilty. 730 ILCS 5/5-8-1 (West 1996).
These facts weaken respondent's implicit position--that courts
should apply the habitual juvenile offender statute in a fashion
identical to the Habitual Criminal Act.
Furthermore, the habitual juvenile offender statute may be
construed as a "law which enhances the protection of *** minors"
and therefore properly alters the procedural rights of
respondent, in keeping with the language of section 1-2(3)(a)
(705 ILCS 405/1-2(3)(a) (West 1996)). In the present case,
respondent was adjudicated delinquent for attempted armed
robbery, a Class 1 felony carrying a minimum sentence of four
years for adults. See generally 720 ILCS 5/8-4(c)(2), 18-2(b)
(West 1996); 730 ILCS 5/5-8-1(a)(4) (West 1996). Respondent,
born in June 1979, was 16 years and 7 months old when he was
arrested in January 1996; thus, even under the habitual juvenile
offender statute, respondent would be committed to the Department
of Corrections, youth division, for a maximum period of four
years and five months. Given the serious nature of respondent's
conduct (his accomplice was shot and killed by police officers,
implicating the potential for a felony murder charge if
respondent were tried as an adult), one might characterize the
habitual juvenile offender statute as offering respondent
enhanced protection from a significantly longer period of
incarceration had he been tried and convicted in a criminal
proceeding. Arguably, this enhanced protection justifies any
departure from the procedural rights of criminal defendants.
Finally, respondent argues that the purpose of the habitual
juvenile offender statute was to incarcerate until age 21 only
those minors who had received two prior rehabilitative
opportunities and yet still committed a third serious offense.
Respondent finds authority for this position in People ex rel.
Carey v. Chrastka, 83 Ill. 2d 67, 80, 413 N.E.2d 1269, 1276
(1980)(statute's predominant purpose is "to protect society from
an individual who, having committed three serious offenses, would
appear to have gained little from the rehabilitative measures of
the juvenile court system"). Because he failed to receive any
rehabilitation services in conjunction with his first
adjudication of delinquency, respondent asserts that applying the
habitual juvenile offender statute in his case is somehow
inappropriate.
Respondent's theory is flawed. First, the record shows that
respondent failed to appear at his first dispositional hearing,
preemptively absenting himself from any rehabilitation services
the juvenile court might have offered. In light of this fact,
the State argues that adoption of respondent's theory--requiring
full adjudications of wardship before applying the habitual
juvenile offender statute--would similarly encourage juveniles
adjudicated delinquent to avoid attending any dispositional
hearing. At oral argument, respondent attempted to minimize this
fact by claiming that he was addicted to drugs and that the State
should have known he would not appear for his dispositional
hearing on petition No. 94 JD 6890. Nothing in the record
supports respondent's claim. Thus, our first basis for rejecting
respondent's "rehabilitation opportunity" argument is the fact
that respondent himself avoided his first opportunity for
rehabilitation.
A second, related flaw stems from the concept that "wardship
does not automatically arise from a finding of delinquency" (In
re Stokes, 108 Ill. App. 3d at 642, 439 N.E.2d at 518, citing In
re Beasley, 66 Ill. 2d 385, 362 N.E.2d 1024) and that the
legislature intended to use mere adjudications of delinquency as
the triggering mechanism for the habitual juvenile offender
statute with full knowledge of the wardship/delinquency
distinction. The Juvenile Court Act authorizes an adjudication
of wardship only where "it is in the best interests of the minor
and the public." 705 ILCS 405/5-22 (West 1996). Removal of the
minor from parental custody may occur "only when his or her
welfare or safety or the protection of the public cannot be
adequately safeguarded without removal." 705 ILCS 405/1-2(1)
(West 1996). The language in these provisions suggests that
first-time delinquents may not always be adjudged wards of the
court; only infrequently will such first-time delinquents be
removed from parental custody. Had the legislature desired to
apply the habitual juvenile offender statute only to those minors
who had received two prior measures of court-supervised
rehabilitation (which may be imposed only upon those minors
adjudged to be wards of the court), presumably the statutory
language would require two prior adjudications of wardship. In
Illinois, the language of a statute must be given its plain and
ordinary meaning. People v. J.A., 127 Ill. App. 3d 811, 469 N.E.2d 449 (1984). Because the statute premises its application
upon two prior adjudications of delinquency and not adjudications
of wardship, nothing in the statutory language suggests a
requirement of multiple opportunities for court-supervised
rehabilitation. Stokes, 108 Ill. App. 3d at 642, 439 N.E.2d at
518.
For the aforementioned reasons, we affirm the judgment of
the trial court.
Affirmed.
BUCKLEY, P.J., and O'MARA FROSSARD, J., concur.