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In Re A.j.

OPINION FILED JULY 30, 1985.

IN RE A.J. ET AL., MINORS (THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE,

v.

A.J. ET AL., RESPONDENTS-APPELLANTS).



Appeal from the Circuit Court of Cook County; the Hon. Charles Barish and the Hon. Ronald Magnes, Judges, presiding.

PRESIDING JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:

On September 22, 1981, the four minors involved in this matter allegedly beat up a 29-year-old retarded male possessing the I.Q. of a 10-year-old. On September 29, 1981, the four youths were apprehended, taken to the police station and separately questioned. All of the youths admitted involvement in the beating.

On September 30, 1981, J.R. was arraigned on petition No. 81-J-15399, charging him with aggravated battery, and on October 14, 1981, A.J., T.M., and L.R., were arraigned on petitions Nos. 81-J-16177, 81-J-16170, and 81-J-16139, charging them with simple battery.

On A.J.'s scheduled trial date of November 30, 1981, he demanded trial, and the State moved for and received a continuance. On the next trial date, April 5, 1982, the petition against A.J. was SOL'd by the State. Although there is no report of proceedings for October 29, 1982, the half-sheet indicates that the State had filed a motion to reinstate the petition, which was entered by Judge Barish and the cause continued to April 6, 1983. On February 24, 1983, the State advanced and reset the case, represented to Judge Magnes that the case was in fact reinstated, and moved to set the case for trial on April 18, 1983. On March 21, 1983, Judge Barish continued the State's motion to reinstate. On April 8, 1983, the case was continued to April 29, 1983, for rearraignment. On April 29, 1983, the record indicates that A.J. was rearraigned by Judge Barish and the case was again set for trial, on September 16, 1983. On September 2, 1983, the State's motion to reinstate was formally argued and was sustained over the minor's motion to dismiss. The case then went to trial on September 16, 1983.

In the case of T.M., on the scheduled trial date of November 30, 1981, the State moved for and received a continuance. On April 5, 1982, T.M. demanded trial, and the State SOL'd the petition. On September 3, 1982, the State's motion to reinstate the petition was entered and continued to October 8, 1982. On October 8, 1982, the State's motion to reinstate was granted over the minor's objection and the case was set for trial on March 15, 1983. The case was then advanced and reset for trial. On April 11, 1983, T.M. was rearraigned and the case was reset for trial to September 16, 1983. On September 2, 1983, the State's motion to reinstate was formally argued and sustained over T.M.'s motion to dismiss. The case then went to trial starting on September 16, 1983.

On L.R.'s first trial date, November 30, 1981, he demanded trial and the State moved for and received a continuance. At the next trial date, April 5, 1982, the State SOL'd the petition against L.R. Although there is again no report of proceedings for October 29, 1982, the half-sheet indicates that the State filed a motion to reinstate that was entered by Judge Barish and continued to April 6, 1983. On February 24, 1983, the State advanced and reset the case, represented to Judge Magnes that the case had in fact been reinstated, and moved to set the case for trial. On March 21, 1983, Judge Barish continued the State's motion to reinstate. On April 8, 1983, the case was again continued, this time for rearraignment. On April 29, 1983, L.R. was rearraigned by Judge Barish and the case was set for trial on September 16, 1983. On September 2, 1983, the State's motion to reinstate was formally argued and sustained over L.R.'s motion to dismiss. The case then went to trial on September 16, 1983.

On November 4, 1983, J.R.'s case was set for trial on January 20, 1982. On January 20, 1982, J.R. was late getting to court and the victim was not present. The case was continued for trial to June 2, 1982. On the June 2, 1982, trial date, the State SOL'd the case. Again, although there is no report of proceedings for October 29, 1982, the half-sheet indicates that the State filed a motion to reinstate that was entered and continued by Judge Barish to April 6, 1983. On February 24, 1983, the State advanced and reset the case, representing to Judge Magnes that the case was in fact reinstated. The State also moved to set the case for trial. On March 21, 1983, the State's motion to reinstate was continued. On April 8, 1983, the case was again continued. On April 29, 1983, private counsel appeared for J.R.; the minor was then rearraigned and the case set for trial. On September 2, 1983, the State's motion to reinstate was formally argued and sustained over J.R.'s motion to dismiss. The case then went to trial on September 16, 1983.

At the formal hearing on the State's petition to reinstate, all the minors involved sought a dismissal on the basis that they were denied due process of law by the State's extraordinary delay in bringing them to trial. The State responded by pointing out that the complainant was mentally retarded and dependent on his father for transportation to court and for support while at court. Since the father had been hospitalized twice for cardiovascular surgery, the State argued that the delay was excusable. The record also indicates that in August of 1982, Judge Barish received a letter from either the complainant's father or a neighbor asking why the case had been dismissed (SOL'd by the State in April and June of 1982). Judge Barish forwarded the letter to the State's Attorney's office. This letter apparently prompted the State to move for reinstatement, because the half-sheets in the records indicate that the State so moved initially in October of 1982. On March 21, 1983, the State represented that it was the complainant's retardation and reliance on his father that was causing the delay. After the motions to dismiss were denied on September 2, 1983, the adjudicatory hearings began on September 16, 1983, resulting in adjudications of delinquency on February 24, 1984.

The only issue presented to this court for review is whether the minors were denied due process where their adjudicatory hearings did not commence until nearly two years after the filing of delinquency petitions and their initial arraignment. For the following reasons, we vacate the findings of delinquency and order the discharge of the minors as to this matter.

• 1 The Juvenile Court Act is designed to ensure that the best interests of the minor respondent, his family, and society are served. (Ill. Rev. Stat. 1981, ch. 37, par. 701-2(1); In re Armour (1974), 59 Ill.2d 102, 104-05, 319 N.E.2d 496.) To that end, the manner in which the Act is to be enforced must be consistent with due process guarantees and must comport with all notions of fairness and impartiality that are provided in the adult criminal setting. In re Winship (1970), 397 U.S. 358, 365, 25 L.Ed.2d 368, 376, 90 S.Ct. 1068, 1073; In re C.T. (1983), 120 Ill. App.3d 922, 925, 458 N.E.2d 1089.

The Juvenile Court Act provides that an adjudicatory hearing shall be set within 30 days from the filing of a delinquency petition. (Ill. Rev. Stat. 1981, ch. 37, par. 704-2.) The word "shall" in the statute, however, is directory, not mandatory, and the mere fact that an adjudicatory hearing is neither set nor held within the 30-day period does not necessarily warrant a discharge. (In re Armour (1974), 59 Ill.2d 102, 104-05, 319 N.E.2d 496.) In People v. Lawson (1977), 67 Ill.2d 449, 367 N.E.2d 1244, though, our supreme court held that a trial court had the authority to dismiss an indictment or criminal complaint where preindictment delays have actually and substantially prejudiced the defendant in clear violation of due process guarantees. 67 Ill.2d 449, 456.

The Lawson reasoning was adopted in the juvenile setting by this court in In re C.T. (1983), 120 Ill. App.3d 922, 926-27, 458 N.E.2d 1089. This court stated that the juvenile court had an inherent authority to dismiss a delinquency petition for due process violations, independent of any statutorily granted power in the Juvenile Court Act, similar to a trial court's power under Lawson. (120 Ill. App.3d 922, 927.) Using the criteria established in Lawson, an evaluation of substantial delays, perhaps warranting a dismissal, is two-fold. "First, the respondent must come forward with a clear showing of actual and substantial prejudice. If this is shown, then the burden shifts to the State to show the reasonableness of the delay. The delay must amount to an `unequivocally clear denial of due process.'" (In re C.T. (1983), 120 Ill. App.3d 922, 927.) Finally, as stated in the Lawson case:

"If this two-step process ascertains both substantial prejudice and reasonableness of a delay, then the court must make a determination based upon a balancing of the interests of the defendant and the public. Factors the court should consider, among others, are the length of the delay and the seriousness of the crime." People v. Lawson (1977), 67 Ill.2d 449, 459.

In resolving the first prong of the two-step process, we believe that substantial prejudice can be presumed by the court if the delay is sufficiently long as to warrant such an action. (See People v. Love (1968), 39 Ill.2d 436, 443, 235 N.E.2d 819; People v. Howell (1983), 119 Ill. App.3d 1, 8, 456 N.E.2d 236; People v. Nichols (1978), ...


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