People v. A.V. (In re A.V.)
| Decision Date | 01 February 2021 |
| Docket Number | NO. 4-20-0455,4-20-0455 |
| Citation | 2021 IL App (4th) 200455 -U |
| Parties | In re A.V., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. A.V., Respondent-Appellant). |
| Court | United States Appellate Court of Illinois |
2021 IL App (4th) 200455-U
In re A.V., a Minor
(The People of the State of Illinois, Petitioner-Appellee,
v.
A.V., Respondent-Appellant).
NO. 4-20-0455
APPELLATE COURT OF ILLINOIS FOURTH DISTRICT
February 1, 2021
NOTICE
This Order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of McLean County
No. 19JD9
Honorable Jason J. Chambers, Judge Presiding.
JUSTICE DeARMOND delivered the judgment of the court.
Presiding Justice Knecht and Justice Harris concurred in the judgment.
ORDER
¶ 1 Held: The appellate court affirmed, finding the minor's commitment to the Illinois Department of Juvenile Justice was not excessive, did not violate the proportionate penalties clause, and defense counsel was not ineffective for failing to cross-examine one of the juvenile victims.
¶ 2 In January 2019, the State charged respondent, A.V., with 16 counts of various offenses against three juvenile victims. Seven of the counts alleged criminal sexual abuse, four counts alleged unlawful restraint, four counts alleged criminal sexual assault, and one count alleged cyberstalking. Respondent was 17 years old at the time of the detention hearing and the victims' ages were 15, 16, and 18 years of age. The State dismissed four of the counts before proceeding to a bench trial. At trial in February 2020, respondent was convicted of 11 counts and adjudged to be a delinquent minor. At sentencing, respondent was sentenced to an indeterminate term in the Illinois Department of Juvenile Justice (IDJJ), not to exceed his twenty-first birthday.
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¶ 3 On appeal, respondent argues the sentence to IDJJ violated the proportionate penalties clause of the Illinois Constitution, the sentence to IDJJ was excessive, and trial counsel was ineffective for failing to cross-examine one of the juvenile victims. We affirm.
¶ 5 In January 2019, the State charged respondent with 16 criminal offenses against three victims. Seven of the counts were criminal sexual abuse (720 ILCS 5/11-1.50(a)(1) (West 2016)), four of the counts alleged unlawful restraint (720 ILCS 5/10-3 (West 2016)), four counts alleged criminal sexual assault (720 ILCS 5/11-1.20(a)(1) (West 2016)), and one count alleged cyberstalking (720 ILCS 5/12-7.5(a)(1) (West 2016)). After several pretrial hearings to address discovery issues, the matter was set for trial in September 2019.
¶ 6 When the case was called for trial in September 2019, the State sought to bar a defense witness or alternatively continue the trial, claiming defense counsel's late disclosure of Dr. Terry Killian as a defense witness, along with his psychiatric report and defendant's notice raising a new defense—insanity—was untimely, violative of the victims' right to timely disposition under the Rights of Crime Victims and Witnesses Act (725 ILCS 120/1 et seq. (West 2018)), and prejudicial to the State. The trial court ordered defense counsel to provide the State with all notes and reference materials used by the doctor in compiling his report. Between September and December, the State obtained additional discovery and sought its own psychiatric expert. In December, the State moved to continue the trial, indicating it retained two experts, Dr. Lawrence Jeckel and Dr. Robert Hanlon. Dr. Jeckel reviewed the defense expert's report, conducted an evaluation of respondent, and requested additional testing by a neuropsychologist. Dr. Hanlon then conducted the testing requested and submitted a report; however, Dr. Jeckel
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needed additional time to incorporate these findings into his report. By agreement of the parties, the bench trial was continued to January 2020.
¶ 7 Before the start of trial, the State dismissed 4 of the counts and proceeded on the remaining 12 counts against respondent. The trial court also discussed with respondent and his counsel a last-minute plea offer tendered by the State, which was rejected by respondent.
¶ 10 A.S. was 19 years old and attending college when she testified. She attended the same high school as respondent and started her freshmen year in 2015. She resides in McLean County with her parents and a brother. She said she first met respondent after her swimming practice when she was a sophomore. They met because their respective athletic practices were in essentially the same place after school each day. Respondent messaged her on social media asking for her phone number, which she provided, and they began to communicate back and forth via text messages. They became "really good friends," and although they communicated by text messaging and attended one class together, A.S. did not "hang out" with respondent outside of school because she was aware her parents "didn't really like him." After a period of time when they did not communicate, she said they began texting again. Throughout her sophomore year, communication between them broke off several times, she said, primarily because of what she described as "mean things" he would say, or the anger he exhibited from time to time. She testified she was "afraid of him." By October of her sophomore year, she said they became friends again, although A.S. told respondent "he needed to work on keeping his temper in check." In October 2017, respondent asked her to meet him at his car in the high school parking lot after her swim practice. According to A.S., upon entering respondent's car he said he wanted
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to talk with her about something, but he was waiting until another student left the area. When A.S. told respondent she needed to leave and attempted to exit the vehicle, respondent locked her door by means of an electronic lock on his side and "grabbed me from behind" which she described as reaching with one hand around her waist and with the other he "grabbed my face." He then started kissing her. She told him "no," but he did not stop. He put his hands up her shirt and felt her breasts over her sports bra. She was not sure how long this lasted but estimated "around five minutes." As she attempted to exit the car, respondent told her "not to tell anyone or there would be consequences." He then unlocked her door and she exited. A.S. testified she sat in her car and started crying. A.S. said it was one or two weeks later when her brother confronted her after overhearing her crying in her room that she first disclosed some of what had occurred. She testified she was unable to tell him everything until a few months before the trial. She further explained how she was unable to tell her boyfriend or other members of her family until some months before the trial. Sometime after the incident, respondent texted her, saying she was about to be called in to the school office due to respondent's report that her brother was threatening to fight respondent. She then disclosed to school administrators what respondent had done to her in the car. According to A.S., the only action taken by the school was for the assistant principal to tell respondent to stay away from A.S. A.S. testified they both agreed to stop talking to one another, and they blocked each other from their phones. The next semester, they were in class together and she said the friendship began again.
¶ 11 During that summer, she agreed to go on two different hikes with respondent, emphasizing each time there was to be no touching and they were doing so only as friends. On each occasion they drove themselves to the park and left in separate vehicles. Respondent agreed to her conditions. Nothing unusual occurred on the first hike. Prior to the second hike, A.S. said
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she had started to feel uncomfortable around respondent and "didn't want to be alone with him." To that end, when they discussed the second hike, she mentioned bringing a friend, respondent objected, and she eventually acquiesced. On the second hike in July 2018, after they found themselves on an unfamiliar path, he grabbed her around the waist from behind. She elbowed him, telling respondent to let her go and he did. He then grabbed her around the waist again with a stronger grip and backed up against a tree with her in front of him. She told him to let her go, but he refused, started kissing her, and put his hands up her shirt and under her bra, touching her breasts. Respondent then put his hands up her shorts and began penetrating her vagina. She told him several times to stop but when it started to hurt, she stopped moving and began to cry. He told her she had to have sex with him or "do oral." She refused, and he took her hand and placed it down his pants forcing her to touch his penis. She pulled her hand away and they started walking. After a phone call from his mother, respondent left her alone in an unfamiliar part of the forest. She eventually found her way back to her car, sat inside and cried, then she went to meet a friend, never telling anyone about what happened until much later. On cross-examination, when asked whether any of these incidents were "consensual," she said in each instance, she told him "no." A.S. said during her senior year, they became friends again and began communicating on the social media forum Snapchat. He expressed to her his desire "to try again" and that they both "could learn together *** how to love each other," but she refused, insisting she wanted to stay with her boyfriend. Respondent then informed her via text he had a gun in his car and sent her a picture of the gun held to his head claiming he was going to kill himself. A.S. said she "started to freak out because I actually thought he would hurt himself." The State admitted a portion of their text messages and a photograph of a pistol recovered pursuant to a search warrant into evidence.
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¶ 12 A.S. recalled an incident in October 2018, when respondent became angry with her because she was with her boyfriend at her house, and respondent kept texting her that he was coming to her house,...
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