In re J.J.M.

No. 2--97--0244
October 16, 1998

_________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
_________________________________________________________________

In re J.J.M, a Minor)Appeal from the Circuit Court
)of Kane County.
)
)No. 96--JD--0226
)
(The People of the State of )
Illinois, Petitioner-Appellee,)Honorable
v. J.J.M., Respondent-)Gene L. Nottolini,
Appellant). )Judge, Presiding.
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JUSTICE RAPP delivered the opinion of the court:
The minor respondent, J.J.M., born November 15, 1980, appeals
the final dispositional order of the circuit court committing him
to the Department of Corrections, Juvenile Division (DOC), for an
indeterminate term. Following his motion to reconsider the order
of commitment, respondent timely appeals, arguing that the trial
court committed reversible error in denying his request to order
that he be given credit for time previously served and good time
credit against his term of commitment to the DOC. We affirm.
On August 8, 1996, the State filed a petition to adjudicate
respondent a delinquent minor and to make him a ward of the court.
The State alleged that, on August 4, 1996, respondent committed
aggravated discharge of a firearm (720 ILCS 5/24--1.2(a)(1) (West
1996)), a Class 1 felony. The petition alleged that the respondent
knowingly and without legal authority discharged a firearm into a
building located at Clifford Court in Elgin, Illinois. At the
adjudicatory hearing on November 21, 1996, the court admonished
respondent of his rights. Respondent admitted the allegations in
the petition, and the court adjudicated him a delinquent minor.
The dispositional hearing began on January 23, 1997.
Respondent presented the testimony of Dale Tucker, a counselor at
the Kane County Youth Home where respondent had been detained for
about two months. Tucker testified that respondent's conduct was
appropriate while at the youth home. Although respondent
associated with gang members, he told Tucker he wanted to avoid
gangs. Marty Offut, a Kane County probation officer, testified
regarding respondent's satisfactory completion of an informal
period of supervision that arose out of a 1994 burglary.
Respondent's aunt testified regarding, among other things,
respondent's difficult family life, his mother's drinking, her
abusive boyfriend, respondent's lack of parental supervision, and
the aunt's care of him.
Detective James Picardi of the Elgin police department
testified regarding his investigation of the August 4, 1996,
incident during which witnesses observed respondent fire three
gunshots into the door of an apartment at Clifford Court that was
occupied by several persons. One of the bullets penetrated the
door.
Detective Douglas Anderson of the Beloit, Wisconsin, police
department testified that he arrested respondent during an incident
in Beloit in April 1996 during which the police determined that
respondent was wanted on an outstanding Wisconsin warrant. The
police had responded to a barking dog complaint. The police found
respondent at the residence, which contained weapons including an
AK47 assault rifle, and marijuana, cash, and drug paraphernalia.
The trial court found inter alia that it was in the best
interests of the minor respondent and the public that he be made a
ward of the court. The trial court ordered him committed to the
DOC for an indeterminate term. The court denied respondent's
request for 78 days of credit for time previously served in the
county youth home. The trial court stated that it would note in
its order the number of days respondent had spent in predisposition
detention. The court also commented in passing that it did not
believe it could order the DOC to grant "good time."
On February 25, 1997, the trial court denied respondent's
motion to reconsider his request for the 78 days' credit. The
court drew a distinction between time spent in detention at the
youth home and confinement in the DOC and concluded that it had no
authority to grant the credit for time served in this instance.
The court recognized that section 5--23(1)(a)(5) of the Juvenile
Court Act of 1987 (Act) (705 ILCS 405/5--23(1)(a)(5) (West 1996))
provides that, where a court's dispositional order places a minor
in detention (for a period not exceeding 30 days), the "minor shall
be given credit on the dispositional order of detention for time
spent in detention" under enumerated sections of the Act "as a
result of the offense for which the dispositional order was
entered." However, the court pointed out that the Act is silent
regarding an award of credit for time served against a term of
commitment in the DOC. We agree that there was no legal authority
for the trial court to order that credit be given against
respondent's term of commitment in the DOC.
Respondent first argues that, like adult offenders, he is
entitled to receive credit (78 days) against the maximum term of
"incarceration" for time spent in predispositional custody at the
youth home as a result of the offense for which the subsequent
"sentence" was imposed. Respondent relies on the provisions of
section 5--8--7(b) of the Unified Code of Corrections (Unified
Code) (730 ILCS 5/5--8--7(b) (West 1996)) which state, in pertinent
part:
"The offender shall be given credit on the determinate
sentence or maximum term and the minimum period of
imprisonment for time spent in custody as a result of the
offense for which the sentence was imposed, at the rate
specified in Section 3--6--3 of this Code."
In a criminal proceeding, this statutory provision governs the
calculation of the term of imprisonment of an offender sentenced as
an adult. In arguing that a juvenile's disposition should be
treated like an adult offender's sentence, respondent also relies
on section 1--2(3)(a) of the Juvenile Court Act, which states that
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).
In treating his commitment as equivalent to an adult
offender's sentence in a criminal proceeding, respondent's legal
argument for granting the credit rests on a faulty premise. There
is no question that the overriding purpose of the Act is to ensure
that the best interests of the minor, the minor's family, and the
community are to be served; the proceedings under the Act are not
criminal. In re W.C., 167 Ill. 2d 307, 320 (1995). "Delinquency
proceedings are therefore protective in nature and the purpose of
the Act is to correct and rehabilitate, not to punish." W.C., 167 Ill. 2d at 320; In re R.G., 283 Ill. App. 3d 183, 186 (1996).
While juvenile delinquency proceedings are not criminal, the
minor is nevertheless accorded certain due process safeguards such
as the right to counsel, the right to confront witnesses, and the
right to remain silent; the criminal rules of evidence and the
reasonable doubt standard of proof apply. R.G., 283 Ill. App. 3d
at 186. However, not all criminal safeguards are employed in a
juvenile proceeding. For example, a minor has no right to a jury
trial, in part because a jury trial would invest a juvenile
proceeding with the appearance and form of a criminal trial; and
the speedy trial provisions of criminal proceedings do not apply to
juvenile proceedings. R.G., 283 Ill. App. 3d at 186.
Under the Juvenile Court Act, a minor is not treated as a
criminal, the adjudication is not treated as a conviction, and,
before trial, the minor is not deemed to be held "in custody" for
an alleged offense. Rather, the minor is held in "detention" under
circumscribed conditions such as when the court finds detention
necessary for the protection of the minor or for the protection of
property, or where the minor is likely to flee the jurisdiction;
there is no bail provision for the minor to avoid detention.
People v. Woodruff, 88 Ill. 2d 10, 15-16 (1981). The Act carefully
avoids the terms "criminal conviction" and "sentence" and instead
uses the terms "adjudication" and "disposition" (see 705 ILCS
405/5--20, 5/22 (West 1996)); these are not merely formal
distinctions. People v. Thompson, 229 Ill. App. 3d 606, 609
(1992). A minor under 17 years of age may not be prosecuted
criminally as an adult except under very limited circumstances.
See 705 ILCS 405/5--4 (West 1996).
When a delinquent has been adjudged a ward of the court, the
court may commit him to the DOC if it finds that "(a) his parents,
guardian, or legal custodian are unfit or unable, for some reason
other than financial circumstances alone, to care for, protect,
train, or discipline the minor, or are unwilling to do so, and the
best interests of the minor and the public will not be served by
placement" in other statutorily enumerated forms of custody or
guardianship; or "(b) it is necessary to ensure the protection of
the public from the consequences of criminal activity of the
delinquent." 705 ILCS 405/5--33(1) (West 1996).
The commitment of a delinquent to the DOC is for an
indeterminate term that automatically terminates "upon the
delinquent attaining the age of 21 years unless the delinquent is
sooner discharged from parole or custodianship is otherwise
terminated in accordance with this Act or as otherwise provided for
by law." 705 ILCS 405/5--33(2) (West 1996). This provision has
been interpreted to give the DOC discretion to decide when it will
release a delinquent minor ward consistent with the goal of
rehabilitation. See In re T.L.B., 184 Ill. App. 3d 213, 220 (1989)
(reciting legislative history and concluding that indeterminate
term for juvenile delinquents survives equal protection scrutiny).
Furthermore, juveniles are accorded favorable treatment not
normally available to adult criminal defendants. For example, a
delinquent ward is committed to the DOC for an indeterminate term
not to exceed his twenty-first birthday unless sooner discharged,
and he has the continuous opportunity to seek early release; he
incurs no criminal record or disqualification from holding public
office. T.L.B., 184 Ill. App. 3d at 221, 223; In re T.D., 81 Ill.
App. 3d 369, 372-73 (1980). While the purposes of the Juvenile
Court Act are protective and rehabilitative, by contrast, the
purpose and policy of the Unified Code are designed to be punitive
as well as rehabilitative. Thompson, 229 Ill. App. 3d at 609.
Even though a delinquency proceeding retains certain
adversarial aspects, it is not in the usual sense an adversarial
proceeding, but is one to be administered in a spirit of humane
concern for and to promote the welfare of the minor. W.C., 167 Ill. 2d at 320. Delinquency proceedings are separated into an
adjudicatory stage, which includes certain adversarial aspects and
thus must satisfy due process, and a dispositional stage, where the
court determines whether it is in the best interests of the minor
and the public that he become a ward of the court. W.C., 167 Ill. 2d at 325-26. Nonetheless, the application of such due process
safeguards does not transform delinquency proceedings into criminal
proceedings. W.C., 167 Ill. 2d at 321.
In sum, adult offenders and juveniles adjudicated delinquents
are not " 'similarly circumstanced,' " and "it is not the purpose
of the Illinois Criminal Code and Juvenile Court Act to treat them
as similarly circumstanced." T.D., 81 Ill. App. 3d at 372.
Because proceedings under the Juvenile Court Act are not criminal,
and juvenile offenders are not considered criminals, do not suffer
the consequences of a conviction, and are not given "sentences" as
in criminal proceedings, we hold that the credit-against-sentence
provision of section 5--8--7(b) of the Unified Code does not apply
to a case such as this one where a juvenile delinquent ward has
been committed for an indeterminate term in the DOC. Section 1--
2(3)(a) of the Act, which provides that procedural rights assured
to minors be the same as those enjoyed by adults unless
specifically precluded by laws enhancing the protection of minors,
does not require a different result. See Woodruff, 88 Ill. 2d at
20 (finding adult speedy trial provisions inapplicable to juveniles
in view of special protections and benefits afforded them).
This case does not concern the diminution of the minor
respondent's procedural rights, but concerns instead the propriety
of the trial court's substantive disposition in providing for the
protection, care, and rehabilitation of the minor in accordance
with the Juvenile Court Act. A decision contrary to the one we
have reached today would only serve to blur the important and
useful distinctions that exist between juvenile proceedings and
criminal proceedings. To the extent that the Appellate Court,
Fourth District, appears to have reached a contrary conclusion
based on somewhat different facts, we decline to follow its
decision in In re E.C., No. 4--97--1086 (June 26, 1998).
Somewhat curiously, respondent also argues that the court
erred in refusing to order that he be given "good-time" credit
against his indeterminate term of commitment. This issue was not
fully developed in the trial court, but we will address it
nevertheless. See W.C., 167 Ill. 2d at 342 (declining to apply
waiver rule). Again, respondent cites authority from the Unified
Code providing a "good behavior" allowance to persons sentenced to
a fixed term in a county jail which allowance is subject to
revocation by the warden as permitted by statute. 730 ILCS 130/3
(West 1996). That authority is also inapplicable to the facts of
this case. Respondent then points out that the "courts have no
authority to interfere with the allowance." In re N.R., 172 Ill.
App. 3d 14, 16 (1988). Our review of the record shows that the
trial court did in fact consider its lack of authority and
scrupulously sought to avoid interfering with the discretion of the
DOC to determine what credits, if any, would be applied to shorten
respondent's term of commitment. We conclude, as did the trial
court, that the court was without legal authority to order day-for-
day good-conduct credit because respondent was being committed to
the Department of Corrections, Juvenile Division, for an
indeterminate term. See People v. Bridges, 188 Ill. App. 3d 961,
971 (1989) (where day-for-day good-time credit could not be
calculated).
For the foregoing reasons, the judgment of the circuit court
of Kane County is affirmed.
Affirmed.
BOWMAN and HUTCHINSON, JJ., concur.