People v. Edgar C. (In re Edgar C.)

• Decision Date: 31 December 2014
• Docket Number: No. 1–14–1703.,1–14–1703.
• Citation: 24 N.E.3d 346
• Parties: In re EDGAR C., a Minor (The People of the State of Illinois, Petitioner–Appellee, v. Edgar C., a Minor, Respondent–Appellant).
• Court: United States Appellate Court of Illinois

24 N.E.3d 346

In re EDGAR C., a Minor (The People of the State of Illinois, Petitioner–Appellee,

v. Edgar C., a Minor, Respondent–Appellant).

No. 1–14–1703.

Appellate Court of Illinois, First District, Fifth Division.

Dec. 31, 2014.

Rehearing Denied Jan. 29, 2015.

Michael J. Pelletier, Alan D. Goldberg, and Bryon M. Reina, all of State Appellate Defender's Office, of Chicago, for appellant.

Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, Mary P. Needham, and Heather Fahrenkrog, Assistant State's Attorneys, of counsel), for the People.

OPINION

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

¶ 1 Respondent Edgar C., a 16–year–old minor at the time of the offense, was found guilty of robbery, theft and battery and adjudicated delinquent and sentenced to five years' probation.

¶ 2 On this direct appeal, respondent requests this court: (1) to vacate his theft adjudication because it stems from the same physical act as his robbery adjudication and thus violates the one-act, one-crime rule (e.g., In re Samantha V., 234 Ill.2d 359, 375, 378–79, 334 Ill.Dec. 661, 917 N.E.2d 487 (2009) (“the one-act, one-crime rule applies to juvenile proceedings,” and a violation of the rule constitutes plain error under the second prong of the plain error doctrine)¹ ; People v. Dressler, 317 Ill.App.3d 379, 387–88, 250 Ill.Dec. 867, 739 N.E.2d 630 (2000) (vacating defendant's theft charge under the one-act, one-crime rule because it stemmed from the same act as his armed robbery charge)); and (2) to modify his sentence of five years' probation so that it terminates on his twenty-first birthday as required by the Juvenile Court Act of 1987 (the Act) (705 ILCS 405/1–1 et seq. (West 2012)). Section 5–755 of the Act provides that: “The wardship of the minor * * * automatically terminates when he or she attains the age of 21 years * * *.” 705 ILCS 405/5–755 (West 2012) ; In re Jaime P., 223 Ill.2d 526, 534, 308 Ill.Dec. 393, 861 N.E.2d 958 (2006) (holding that there is a “jurisdictional cap of 21 years” on the 5–year probation requirement). The State agrees and joins in both these requests, and we so order them.

¶ 3 In addition, respondent argues: (1) that his trial counsel was ineffective for failing to file a motion to quash arrest either before or during trial; and (2) that the mandatory probation provision of section 5–715(1) of the Act (705 ILCS 405/5–715(1) (West 2012)) violates his equal protection rights under the federal and state constitutions. U.S. Const., amend. XIV ; Ill. Const. 1970, art. I, § 2.

¶ 4 Respondent asked us to remand for resentencing only if we strike the mandatory probation provision of the Act. However, he did not request a resentencing if we vacate only the lesser-included theft charge.

¶ 5 For the following reasons, we do not find respondent's ineffectiveness and equal-protection claims persuasive and we affirm his adjudication of delinquency for robbery and battery, but we vacate his theft adjudication and modify his five-year sentence of probation to terminate on his twenty-first birthday, which will be January 16, 2018.²

¶ 6 BACKGROUND

¶ 7 I. Pretrial Proceedings

¶ 8 Since the minor victim, J.B., age 16, was also a minor at the time of the offense, and since he has a distinctive first name, we use his initials instead of his full name. Illinois Supreme Court Rule 660(c) provides that in all appeals filed from proceedings under the Juvenile Court Act, the “involved” minors shall be identified by first name and last initial only or by initials only; and that the method of using initials only is “to be used when, due to an unusual first name or spelling, the preferred method would create a substantial risk of revealing a minor's identity.” Ill. S.Ct. R. 660(c) (eff. Oct. 1, 2001).

¶ 9 On August 22, 2013, the State filed a petition for adjudication of wardship alleging that respondent, who was born on January 16, 1997, and was then 16 years old, committed robbery, theft and battery of J.B. on July 31, 2013. Both the robbery and theft counts alleged that respondent wrongfully took a cell phone from J.B. and the battery count alleged that respondent slapped J.B. in the face with his open hands.

¶ 10 On September 6, 2013, respondent was arraigned with his mother and father present, and an assistant public defender (APD) was appointed to represent him. The APD then “acknowledge[d] receipt of the discovery packet” in open court. However, this “discovery packet” is not part of the appellate record, and the transcript does not describe the packet's contents. A written order, entered by the trial court on September 6, 2013, also stated: “Discovery tendered.”

¶ 11 As for discovery, the appellate record contains only the State's one-page answer to respondent's discovery request. The State's answer was filed on September 6, 2014, which is the same day that the APD acknowledged in open court that she received a “packet” from the State. The answer stated that the State may call as witnesses any person named in police reports and other documents which are “attached to and incorporated as part of this answer.” The answer stated that witness statements were described in these documents, as well as items that may be used at trial as physical evidence. The answer also stated that these documents described “the identification procedure.” However, the answer in the appellate record does not have any documents attached to it.

¶ 12 It appears that defense counsel must have received police reports because, subsequently at trial, defense counsel marked a police inventory form as Defense Exhibit No. 1 for identification. However, none of the police reports, including the inventory form, are in the appellate record.

¶ 13 II. Trial

¶ 14 A. The Victim's Testimony

¶ 15 On March 14, 2004, the bench trial commenced with the victim J.B. as the State's first witness. J.B. testified that he is 16 years old and that, on July 31, 2013, he left his grandmother's house at approximately 1 p.m. and dribbled his basketball to a park near 97th Street and California Avenue where he remained until approximately 2:30 p.m. J.B. then observed a group of four teenagers, approximately 20 to 25 feet away. Two boys were between 15 and 17 years old; one boy was between 18 and 20 years old; and the one girl was approximately 17 or 18.

¶ 16 J.B. testified that he had never seen these four teenagers before, and he was about to turn around and go home, when one of the boys called out: “Come here so I can give you some advice.” The speaker was wearing a purple jumpsuit with a black stripe on the sleeves. Next to the speaker was a boy in a black jeans jacket. The other two people in the group, a boy and a girl, were sitting on top of a slide. J.B. pretended that he did not hear the speaker and turned around to head home, but the speaker called out to J.B. again. Then J.B. walked over to the speaker. The boy in the purple jumpsuit asked if J.B. was in the “BDK” gang. J.B. said no and that he did not live near the park. The boy then stated: “If you are not with us, you are against us.” The boy added: “Now I need to get my three slaps in.” Then the boy slapped J.B. three times on J.B.'s left cheek with the boy's open right hand.

¶ 17 J.B. testified that, next, the boy in the black jeans jacket said, “Now I gotta get my slaps in”; and he slapped J.B. three times on J.B.'s right cheek with his left hand. Then they told J.B. he could go home, and J.B. started walking away, when the boy in the purple jacket called him back.

¶ 18 The prosecutor then asked J.B. if he could look around the courtroom and identify the person who “had this purple jacket that day” and who had slapped J.B. three times. J.B. then identified respondent. However, as we will explain later, this in-court identification subsequently proved to be confusing because, later in his testimony, J.B. related how, at the police station, he identified a photograph of respondent as the boy in the black jacket. See infra ¶¶ 29–30.

¶ 19 After the in-court identification, the prosecutor phrased his questions asking about the “minor respondent.” Thus, at this point, in describing J.B.'s testimony, we will use the term “respondent” when it is clear that J.B. is responding to the prosecutor's questions about the “minor respondent.”

¶ 20 J.B. testified that, when respondent called J.B. back, J.B. said no and that he was going to keep walking. Then respondent stood up and reached toward his pocket, unzipped it and said “Don't make me make this call,” while also reaching his hand inside the pocket. J.B. thought he might have a weapon in his pocket and so he stated: “I don't want any trouble.” Then respondent told J.B. to sit down in the wood chips, which he did. As J.B. was sitting down, his cell phone fell out of his pocket and J.B. picked it up and was about to place it back in his pocket, when respondent asked J.B. if he could use J.B.'s phone to make a call.

¶ 21 J.B. testified that he said no because earlier he had observed three phones fall out of respondent's pocket; so J.B. asked respondent why he could not use one of those three phones to make his call. Respondent said “Don't make me make this call,” while reaching towards his pocket again. Then J.B. handed respondent his phone and said: “Okay. Just one call.” After J.B. handed respondent his phone, respondent started walking away with it. J.B. then started following respondent but the boy in the black jacket stopped J.B. and told J.B. to come back, so J.B. sat back down.

¶ 22 J.B. testified that, four or five minutes later, the boy in the black jacket said that his friend was around the corner, and that J.B. should walk straight and make a right and his friend would be sitting on the porch of a house with J.B.'s phone waiting for J.B. Following these instructions, J.B. walked around the corner and nobody was there. J.B. then walked back to the park, and the group had left. The whole event lasted approximately 10 minutes.

¶ 23 J.B. testified that...