T.L.B., In Interest of

• Decision Date: 08 June 1989
• Docket Number: No. 4-88-0302,4-88-0302
• Citation: 539 N.E.2d 1340,184 Ill.App.3d 213
• Parties: , 132 Ill.Dec. 534 In the Interest of T.L.B. (The People of the State of Illinois, Petitioner-Appellee v. T.L.B., Respondent-Appellant).
• Court: United States Appellate Court of Illinois

Page 1340

539 N.E.2d 1340

184 Ill.App.3d 213, 132 Ill.Dec. 534

In the Interest of T.L.B. (The People of the State of Illinois, Petitioner-Appellee v. T.L.B. Respondent-Appellant).

No. 4-88-0302.

Appellate Court of Illinois,

Fourth District.

June 8, 1989.

Daniel D. Yuhas, Deputy Defender, Office of State Appellate Defender, Springfield, for respondent-appellant.

Thomas J. Difanis, State's Atty., Urbana, Kenneth R. Boyle, Director, State's Attys. Appellate Prosecutor, Springfield, Robert J. Biderman, Deputy Director, Gwendolyn W. Klingler, Staff Atty., for petitioner-appellee.

Judge KNECHT delivered the opinion of the court:

In March 1987, the respondent minor, born November 9, 1972, was placed on a period of 18 months' probation pursuant to proceedings on a supplemental delinquency petition. (Ill.Rev.Stat.1985, ch. 37, par. 704-1 (now Ill.Rev.Stat.1987, ch. 37, par. 805-13).) In February 1988, a petition to revoke the minor's probation was filed alleging criminal damage to property having a value in excess of $300. (Ill.Rev.Stat.1987, ch. 38, par. 21-1(a).) The minor thereafter admitted and stipulated to the charge, in exchange for which the State agreed to follow the recommendation of the Court Services Department as to disposition. At the conclusion of the dispositional hearing, the trial court ordered the minor committed to the Department of Corrections, Juvenile Division (DOC). This appeal followed.

On appeal, the minor argues, first, the trial judge abused his discretion in sentencing him to DOC for an indeterminate term, since he had been adjudicated delinquent for only two misdemeanor thefts and the judge failed to consider less severe placement alternatives for him. Second, he maintains section 5-33(2) of the Juvenile Court Act of 1987 (Act) (Ill.Rev.Stat.1987, ch. 37, par. 805-33(2)), which prohibits a circuit court from imposing a determinate-term sentence to DOC upon a minor pursuant to proceedings under the Act, violates the equal-protection clauses of the United States and Illinois Constitutions because the provision permits the commitment of minors for a longer period of time than similarly situated adults and, further, is not precisely tailored to serve a compelling governmental interest.

The purpose of the Act, generally, is to secure for each minor who comes within its provisions such care and guidance, preferably in his own home, as will serve the moral, emotional, mental, and physical welfare of the minor and the best interests of the community, removing him from the custody of his parents only when his welfare or safety or the protection of the public cannot be adequately safeguarded without removal. (Ill.Rev.Stat.1987, ch. 37, par. 801-2(1).) The first purpose of the juvenile justice statutory scheme is to correct a minor's conduct. Society is interested for its own sake as well as for the minor's individual welfare in guiding and rehabilitating. In re Armour (1974), 59 Ill.2d 102, 104, 319 N.E.2d 496, 498.

Section 5-23 of the Act sets forth the various dispositional alternatives available to the trial judge as to a minor found delinquent under section 5-33 of the Act (Ill.Rev.Stat.1987, ch. 37, par. 805-33), including probation or conditional discharge; placement outside the home under section 5-29 of the Act (Ill.Rev.Stat.1987, ch. 37, par. 805-29); admission or treatment for drug addiction; commitment to the Department of Children and Family Services (DCFS); placement in detention for a period not to exceed 30 days; or commitment to DOC under section 5-33 of the Act (Ill.Rev.Stat.1987, ch. 37, par. 805-33). (Ill.Rev.Stat.1987, ch. 37, par. 805-23.) The trial judge is, necessarily, accorded wide discretion in determining an appropriate disposition, and may choose as he sees fit among the various dispositional alternatives and need not defer to any particular disposition. His decision will not be reversed unless an abuse of discretion is demonstrated. In re A.J.D. (1987), 162 Ill.App.3d 661, 666, 114 Ill.Dec. 6, 9, 515 N.E.2d 1277, 1280; In re T.A.C. (1985), 138 Ill.App.3d 794, 797-98, 93 Ill.Dec. 274, 277, 486 N.E.2d 375, 378; In re M.D.B. (1984), 121 Ill.App.3d 77, 76 Ill.Dec. 580, 458 N.E.2d 1380.

Section 5-23(1)(b) of the Act restricts the trial court's consideration of commitment to DOC as a disposition to those cases where (1) the minor is 13 years of age or older, and (2) a term of incarceration is permitted by law for adults found guilty of the offense for which the minor was adjudicated delinquent. (Ill.Rev.Stat.1987, ch. 37, par. 805-23(1)(b).) Here, T.L.B. was over the age of 13 and a term of imprisonment is permitted for adults found guilty of attempt (theft under). (Ill.Rev.Stat.1987, ch. 38, pars. 8-4(a), (c), 16-1(a)(1), (e)(1), 1005-8-3(a)(1).) Section 5-33 of the Act provides that when any delinquent has been adjudged a ward of the court under the Act, the court may commit him to DOC if it finds "(a) his parents * * * are unfit or are 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 under Section 5-29; or (b) it is necessary to ensure the protection of the public from the consequences of criminal activity of the delinquent." (Ill.Rev.Stat.1987, ch. 37, par. 805-33(1).) Here, the court based the commitment of the minor on subsection (a). Ill.Rev.Stat.1987, ch. 37, par. 805-33(1)(a).

Respondent argues the trial court abused its discretion because his conduct was not outrageous and did not constitute "wanton criminal acts or crimes of violence" and, further, less drastic alternative placements under section 5-29 of the Act could have served the needs of both the minor and the public. Respondent maintains the facts of this case afford no justification for the trial court "leaping from a less restrictive form of correction to the most severe," where his infractions did not involve violence or personal injury and his background "indicated strong potential for improvement."

This was not the respondent's first contact with the circuit court. He has been involved in court proceedings since June 1985, when a juvenile delinquency petition was filed alleging misdemeanor theft in relation to an unauthorized taking of property of a store, a Trivial Pursuit "Genus Edition" game. Respondent was, at that time, 12 years old. He admitted to the allegations of the petition and was ordered to serve 18 months' court supervision.

In January 1987, a supplemental delinquency petition was filed alleging respondent committed the offense of attempt (misdemeanor theft) for trying to expropriate two baseball cards. In February 1987, the minor admitted and stipulated to the charge and was found a delinquent minor. In March 1987, the court discharged the minor from court supervision. At the dispositional hearing for the supplemental delinquency petition on March 31, 1987, the respondent was ordered to serve a term of 18 months' probation. As a condition of his probation, respondent was ordered to spend 6 days in the Champaign County Youth Detention Center, ending April 5, 1987, and an additional 11-day period of detention from October 8, 1987, to October 18, 1987.

After being released from detention on April 5, 1987, a report of probation violation was filed, alleging that on April 6, 1987, at about 11:45 a.m., respondent removed a check in the amount of $682.70 from an office at the junior high school and thereafter presented the check to a teacher.

In September 1987, respondent's probation was modified, and his period of detention, scheduled for October 1987, was vacated. Thereafter, on February 1, 1988, the instant petition to revoke probation was filed, alleging that on November 23, 1987, he committed the offense of criminal damage to property (Ill.Rev.Stat.1987, ch. 38, par. 21-1(a)) when he knowingly damaged the hood of a 1987 Volkswagen Golf four-door automobile, without the consent of the owner, causing damage in excess of $300. In March 1988, the minor admitted and stipulated to the allegations of the petition. The factual basis was as follows:

"[P.S.] would testify that he was the owner of a 1987 Volkswagen Golf 4 door automobile that was parked on the parking lot of the church on Philo Road. That a boy scout meeting was letting out, and that this Respondent Minor and two other Minors after the meeting leaned up against his car, and then decided to walk across the roof of his car, causing approximately $1,000 in damage."

The updated dispositional report filed in this cause summarized previous court attempts at influencing respondent as having proved in vain:

"He was originally unsuccessfully discharged from Court Supervision on 3-3-87, and just twenty-eight days later was sentenced to a term of 18 months Probation, this being his second opportunity to serve a community sentence.

Rather than taking advantage of this second opportunity to avoid a protracted term of incarceration, the respondent has systematically absented himself from school, to the point of being withdrawn/failing in each of his classes. Clearly, this is indicative of the respondent's total lack of desire to better himself, and to comply with Court orders.

The respondent's total Probation record has left much to be desired. Excessive school disciplinary problems beyond his constant absenteeism, refusal to pay Court costs as directed, failure to advise this office of a change of residence and an unwillingness to cooperate at home in the past, illustrates a very mediocre attitude toward the authority of this Court.

Although this officer recognizes the fact that the offenses committed by the respondent minor have not been violent in nature, the consistent, irresponsible, behavior displayed by him, suggests that Probation is an ineffective sentence for this individual, and that more punitive measures must be taken in an...