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In Re S.k.

OPINION FILED NOVEMBER 6, 1985.

IN RE S.K., A MINOR (THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE,

v.

S.K., RESPONDENT-APPELLANT).



Appeal from the Circuit Court of Du Page County; the Hon. Kevin P. Connelly, Judge, presiding. JUSTICE REINHARD DELIVERED THE OPINION OF THE COURT:

In juvenile proceedings, the respondent, S.K., upon his admission to an allegation in an amended petition stating he committed the offense of resisting a peace officer, was adjudicated a delinquent and made a ward of the court. Following a dispositional hearing, respondent was committed to the Department of Corrections.

Respondent raises the following issues on appeal: (1) whether his admission was involuntarily and unintelligently entered where the trial judge did not admonish him of the consequences of his admission; (2) whether the trial judge erred in making him a ward of the court after his admission rather than after the dispositional hearing as mandated by statute; (3) whether the trial judge complied with the provisions in section 5-2(1)(a)(5) of the Juvenile Court Act; (4) whether respondent, who was adjudicated a delinquent for a misdemeanor offense, could be committed to the Department of Corrections where an adult may not be committed to the Department of Corrections upon a conviction of a misdemeanor; and (5) whether the respondent's indeterminate sentence to the Department of Corrections violates due process.

Respondent, who was represented by a deputy public defender, admitted he committed the offense of resisting a peace officer (Ill. Rev. Stat. 1983, ch. 38, par. 31-1) as alleged in an amended petition filed under the Juvenile Court Act (Ill. Rev. Stat. 1983, ch. 37, par. 701-1 et seq.). Two other offenses alleged therein were then withdrawn by the State. Respondent was read the allegation regarding the offense of resisting a peace officer by the trial judge and acknowledged that he understood what was charged and that the allegation was true. The trial judge then informed respondent as follows:

"THE COURT: Okay. Now, I don't want you to tell me you did something if you didn't do it. You have a right to deny it, in which event the State would have witnesses come in and testify. Mr. Meyering could cross-examine those witnesses.

You'd have a right to present witnesses and evidence to tell your side of it. No one can force you to testify unless you choose to do so.

In short, you are entitled to a trial.

Now, when you stand here and tell me this paragraph is true, there would be no sense in having a trial. You're waiving a trial and all the rights that would go along with one.

Do you understand?

RESPONDENT MINOR: Yes."

Thereafter, the trial judge entered a finding of delinquency and made respondent a ward of the court. A separate dispositional hearing was then scheduled.

At the dispositional hearing, a 16-page juvenile social history report prepared by a probation officer was submitted to the court and, attached thereto, was a 13-page psychological report concerning respondent written by Clyde B. Kelly, Ph.D. Briefly summarized, the probation officer's report indicated that respondent has a history of delinquency with most of the prior charges being station adjusted or stricken on leave to reinstate; that respondent had been admitted to Maryville Academy from October 17, 1980, to September 20, 1981; that respondent, currently enrolled at Hinsdale South High School in the ninth grade and who academically "didn't do badly" at Lincoln Junior High, has the potential to function in the average range of intellectual ability, but has significant physiological and emotional learning disabilities; and that his mother believes he has a strong involvement with drugs. The probation officer recommended that respondent's long history of inconsistent discipline and guidance at home, coupled with his and his mother's limited insight and judgment, aggravated by an apparently serious drug problem, makes his return home next to impossible and he should be committed to the Department of Corrections.

The psychological report stated that testing showed respondent's I.Q. is 83 and his reading at the fifth grade level; that he has low average intellectual ability, though in practical judgment, in school learning, and in his understanding of the world he is functioning at a mildly to borderline retarded level; that his mother feels she has no control over her son; and that S.K.'s antisocial personality strongly suggests referral to the Department of Corrections.

No other evidence was submitted at the dispositional hearing and, following arguments of counsel, respondent was committed to the Department of Corrections. Respondent filed a lengthy motion to withdraw the admission and vacate the judgment contending, inter alia, that prior to entering his admission he had not been advised of the minimum and maximum disposition prescribed by law for the alleged charge and that the court did not determine if he understood the maximum punishment, both in violation of Supreme Court Rule 402. The motion was denied.

Respondent first contends that the trial judge failed to admonish him of the consequences of his admission and, in particular, the potential for commitment to the Department of Corrections. Although respondent acknowledges on appeal that Supreme Court Rule 402 (87 Ill.2d R. 402), applicable to criminal cases, does not apply to juvenile court proceedings (In re Beasley (1977), 66 Ill.2d 385, 362 N.E.2d 1024), he maintains that his admission was not voluntarily and intelligently entered due to the court's failure to admonish him of the consequences of making the admission. He also argues that his borderline mental retardation level, as shown by the ...


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