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11/27/96 A.V. v. A.V.

November 27, 1996

IN RE A.V., A MINOR (THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE,
v.
A.V., A MINOR, RESPONDENT-APPELLANT).



Appeal from the Circuit Court of Cook County. Honorable Richard Walsh, Judge Presiding.

Rehearing Denied November 27, 1996. Released for Publication January 15, 1997.

The Honorable Justice Braden delivered the opinion of the court. Buckley, J., concurs. Wolfson, J., dissents.

The opinion of the court was delivered by: Braden

JUSTICE BRADEN delivered the opinion of the court:

Minor respondent, A.V., appeals from a March 2, 1995, order by the circuit court of Cook County, finding him in violation of the terms and conditions of his probation and sentencing him to incarceration in the Department of Corrections. On appeal, A.V. argues that (1) defense counsel's failure to object to the consolidation of his delinquency and probation revocation hearings constituted ineffective assistance of counsel, and (2) that the trial court's determinations that he was not guilty on the delinquency petition but guilty of the probation violation were legally inconsistent and, therefore, not permissible under Illinois law.

We reverse and remand.

On April 4, 1994, the State filed a petition for adjudication of wardship, alleging that A.V. trespassed into and possessed a stolen vehicle in violation of the Illinois Motor Vehicle Code. A.V. was subsequently adjudicated delinquent and sentenced to probation for two years. On December 19, 1994, A.V. was charged in a delinquency petition with five criminal offenses arising from a shooting incident including: aggravated battery, aggravated battery with a firearm, attempt murder, aggravated discharge of a firearm, and armed violence. He also faced a petition charging him with violation of the aforementioned probation.

On March 2, 1995, the court granted the State's motion to consolidate the hearings on both the delinquency petition and the violation of probation charges. Defense counsel, consisting of two Northwestern law students practicing under Supreme Court Rule 711 and two supervising attorneys from the Northwestern University Legal Clinic, made no objection to the State's motion.

The trial court subsequently found A.V. not guilty of the criminal charges alleged in the delinquency petition, finding that the State failed to establish beyond a reasonable doubt that A.V. was the shooter. The trial court did find, however, that the State had proved by a preponderance of the evidence that A.V. was the shooter and that, as such, he had violated the terms and conditions of his probation.

A.V. subsequently filed a motion for reconsideration, alleging ineffective assistance of counsel. In arguing their motion defense counsel admitted that the State's motion to consolidate proceedings took them by surprise. The record indicates defense counsel conceded they were proceeding under an assumption that the burden in both proceedings was "beyond a reasonable doubt." Defense counsel conceded they were unaware that the State's burden of proof in the probation revocation hearing was "by a preponderance of evidence." Defense counsel further conceded that if they had been aware that the State's burden of proof was "by the preponderance" they would have called additional alibi witnesses, and A.V. would have testified in his own behalf.

In fact, defense counsel called only one witness, A.V.'s father, to establish A.V's whereabouts at the time of the incident. A.V.'s father testified that A.V. was at home in bed at the time of the shooting. Defense counsel failed to call any additional witnesses to corroborate the testimony of A.V.'s father.

The trial court denied A.V.'s motion for reconsideration finding no right to separate adjudication of probation violations and delinquency charges.

On appeal, A.V. argues that he received ineffective assistance of counsel when defense counsel failed to object to a consolidation hearing on both the State's petition to adjudicate his delinquency and its petition to revoke his probation. We agree.

To prove ineffective assistance of counsel a defendant must show that (1) counsel's performance fell below an objective standard of reasonableness, and (2) but for counsel's performance there is a reasonable probability that the result of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 686, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2063 (1984). The right to effective assistance of counsel applies in juvenile, as well as adult proceedings, and in probation hearings as well as criminal trials. In re F.N., 253 Ill. App. 3d 483, 491, 624 N.E.2d 853, 859, 191 Ill. Dec. 665 (1993).

A.V. relies on People v. Porter, 241 Ill. App. 3d 116, 118, 608 N.E.2d 1210, 1212, 181 Ill. Dec. 736 (1993), in which trial counsel's failure to object to consolidation of a probation revocation proceeding and the criminal jury trial was held to have fallen below the objective standard of reasonableness. In Porter, the defendant was charged with unlawful delivery of a controlled substance. Both the jury trial on the criminal charges and a hearing on the State's petition to revoke the defendant's probation were heard at the same time. Defense counsel did not object. The trial court noted that it would rule on the petition to revoke probation after the jury delivered its verdict on the underlying criminal charge. The jury subsequently returned a verdict of not guilty for the offense of unlawful delivery of a controlled ...


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