Gabriel W. v. Gabriel W.

• Decision Date: 28 December 2017
• Docket Number: No. 1–17–2120,1–17–2120
• Citation: 97 N.E.3d 54,2017 IL App (1st) 172120
• Parties: IN RE GABRIEL W., a Minor, (The People of the State of Illinois, Petitioner–Appellee, v. Gabriel W., Respondent–Appellant).
• Court: United States Appellate Court of Illinois

2017 IL App (1st) 172120

97 N.E.3d 54

IN RE GABRIEL W., a Minor,(The People of the State of Illinois, Petitioner–Appellee,

v.Gabriel W., Respondent–Appellant).

No. 1–17–2120

Appellate Court of Illinois, First District, FOURTH DIVISION.

Opinion filed December 28, 2017

Michael J. Pelletier, Patricia Mysza, and Jessica D. Ware, of State Appellate Defender’s Office, of Chicago, for appellant.

Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg, Douglas P. Harvath, and Gina DiVito, Assistant State’s Attorneys, of counsel), for the People.

OPINION

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

¶ 1 After being arrested in possession of one firearm, the minor respondent, Gabriel W., age 15, was charged by the State on November 11, 2016, in a three-count petition for wardship, which alleged two counts of aggravated unlawful use of a weapon (AUUW) and one count of unlawful possession of a firearm (UPF). The two AUUW counts alleged that he lacked a Firearm Owner's Identification (FOID) card (count I) and that he was under age 21 (count II). The UPF count alleged that he was under age 18 (count III). After a bench trial, the trial court found respondent guilty of all three counts but merged counts II and III into count I, the FOID-card count.¹ The court adjudged respondent to be a ward of the court and sentenced him to 18 months of probation, as well as to a 30–day commitment to the Illinois Department of Juvenile Justice which was stayed so long as respondent did not violate any of his probation terms.

¶ 2 On this appeal, respondent claims (1) that his adjudication for AUUW based on the lack of a FOID card must be vacated because the State failed to prove he lacked a FOID card and (2) that his adjudications for AUUW and UPF based on his age must be vacated because the State failed to prove his age.²

¶ 3 The State concedes that, while its evidence established that respondent did not present a FOID card to the arresting officers, the State failed to offer any evidence that respondent actually lacked a FOID card. This court has previously held that the simple absence of the presentation of a FOID card is insufficient to prove that a respondent actually lacked a FOID card. In re Manuel M. , 2017 IL App (1st) 162381, ¶ 15, 410 Ill.Dec. 852, 71 N.E.3d 1131. Thus, we vacate the finding of guilt on this count.

¶ 4 With respect to the other two counts, respondent argues that the State failed to prove his age at the bench trial, although respondent (1) stated his birth date at the arraignment and stipulated to juvenile jurisdiction in this case, (2) testified at the pretrial suppression hearing that he was 15 years old, and (3) did not object at the bench trial when the arresting officer testified that respondent was 15 years old. Our supreme court has previously held that, in a juvenile adjudication, a trial judge in a bench trial does not have to disregard testimony about age that occurred during another proceeding in the same case. E.g. , In re Brown , 71 Ill. 2d 151, 155, 15 Ill.Dec. 774, 374 N.E.2d 209 (1978) (rejecting "[t]he contention that because the proof of age occurred at a different stage of the proceedings" the trial court cannot consider it); In re Ephriam , 60 Ill. App. 3d 848, 854–55, 17 Ill.Dec. 859, 377 N.E.2d 49 (1978). Thus, we do not find this argument persuasive.

¶ 5 The parties agree that, if we affirm the findings of guilt on the two age-based counts, we must vacate the less serious offense under the one act, one crime rule. Thus, for the reasons explained in more detail below, we vacate the finding of guilt on count I, which was based on the lack of a FOID card; we affirm the findings of guilt on counts II and III, the two age-based counts; but we vacate count III, the UPF count, under the one act, one crime rule.

¶ 6 Finally, respondent does not ask us to remand for resentencing. Since the three counts were all based on the possession of the same handgun at the same moment in time and since his sentence was and still is based on an AUUW count and since respondent does not seek a remand for resentencing, we do not order it. He asks us only to correct his sentencing order to reflect that he has 251 days of credit for time served against his 30–day stayed commitment, and the State joins in this request. Thus, we affirm his adjudication for wardship and sentence, with the adjudication based on AUUW grounded on age (count II) rather than lack of a FOID card (count I), but we correct his sentencing order to reflect 251 days of credit for time served against his 30–day stayed commitment.

¶ 7 BACKGROUND

¶ 8 Although respondent challenges the sufficiency of the evidence, he does so only on the limited questions of proof of (1) age and (2) lack of a FOID card. Thus, we describe the facts focusing on these two issues.

¶ 9 On November 10, 2016, respondent was arrested on a street corner in possession of one loaded handgun. Although he challenged the search before the trial court, he does not raise any issue on appeal concerning either the search or his possession of the handgun.

¶ 10 One day later, on November 11, 2016, the State charged him in a petition for adjudication of wardship alleging the three counts, already described above.

¶ 11 At the arraignment, which was also on November 11, 2016, respondent and his mother were present when his counsel stated that respondent "stipulate[d] to juvenile court jurisdiction." The trial court then asked respondent:

"THE COURT: Is your date of birth * * * 2001?

RESPONDENT: Yes."

Defense counsel also stipulated to a finding of probable cause.

¶ 12 On December 6, 2016, respondent filed a motion to quash arrest and suppress evidence on the ground that the stop and search lacked reasonable suspicion and/or probable cause. As we observed, respondent does not renew this issue on appeal, so we discuss only the portions of the suppression hearing that relate to the issues before us, namely, respondent's age and lack of a FOID card.

¶ 13 At the suppression hearing on January 18, 2017, respondent testified under oath that he was 15 years old:

"ASSISTANT PUBLIC DEFENDER: How old are you, Gabriel?

RESPONDENT: Fifteen."

After the trial court denied respondent's motion to suppress, the parties proceeded, without a break and on the same day, to the bench trial. The bench trial was held before the same trial judge who had just heard the suppression motion.

¶ 14 With respect to a FOID card, Officer Ghiloni,³ one of the arresting officers testified as follows:

"ASSISTANT STATE'S ATTORNEY (ASA): Did the minor present a FOID card to you at any time?

OFFICER GHILONI: No."

¶ 15 Officer Ghiloni's partner, Officer Olson,⁴ testified about what occurred after the minor was arrested and transported to the police station. With respect to respondent's age, he testified as follows:

"ASA: * * * [W]hat did you do when you got to the police station?

OFFICER OLSON: I got the minor's name, date of birth, mother's information—or parent's information, address.

ASA: And was this minor under the age of 18?

OFFICER OLSON: Yes.

ASA: And just to be clear, the minor that you were processing at the station was the Minor Respondent, Gabriel [W.], in this case; true?

OFFICER OLSON: Yes.

ASA: And you testified that he was under the age of 18?

OFFICER OLSON: That's correct.

* * *

ASA: Now, you testified that the minor was under the age of 18, but do you recall how old the minor was?

OFFICER OLSON: Specifically, no. I don't remember.

ASA: Okay. Is there anything that would—is your memory exhausted?

OFFICER OLSON: Yes.

ASA: And is there anything that would refresh your memory as to the question I asked you?

OFFICER OLSON: If I saw a copy of the case report, the arrest report that was generated.

* * *

ASA: I'm giving to the witness what I've marked as People's Exhibit No. 1. Can you please look at that and once your recollection is refreshed, please look up. (Short pause.)

ASA: And may I have it back. Thank you. Is your recollection refreshed?

OFFICER OLSON: Yes.

ASA: And do you recall how old this Minor Respondent was?

OFFICER OLSON: Fifteen years old."

During this prolonged discussion concerning respondent's age, the defense did not object once. The ASA also asked Officer Olson if respondent had presented the officers "at any time" with a FOID card. Officer Olson answered "[n]o."

¶ 16 When the State rested, respondent moved for a directed finding on the sole ground that the State had failed to introduce the inventory report concerning the gun or any testimony about the inventorying of the gun or its chain of custody. After the trial court denied respondent's motion, the parties proceeded to closing argument. The State asked the trial court to adopt, as its closing argument, its argument concerning respondent's motion for a directed finding, but it reserved rebuttal argument. The defense, similarly, asked the trial court to adopt its argument concerning the motion as its closing argument. In rebuttal, which the State had reserved, it argued, among other things, that "we've heard testimony that he was under the age of 18" and "[t]hat he did not have a FOID card."

¶ 17 After hearing the evidence at trial and the arguments of counsel, the trial court found, "there will be a finding of guilty on all counts, although, obviously, the other counts will merge into the first count."

¶ 18 On February 16, 2017, respondent filed a motion to reconsider the trial court's denial of his motion to quash arrest and suppress evidence. As noted, this issue is not raised on appeal. The trial court heard further argument and testimony from Officer Ghiloni on this issue and again denied the motion and then, pursuant to respondent's request, proceeded to schedule a sentencing hearing.

¶ 19 On July 19, 2017, at the sentencing hearing, defense counsel stated that respondent was 16 years old. After listening to factors in mitigation and aggravation, the trial court adjudged respondent to be a ward of the court and sentenced him to 18 months of probation, as well as...