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In re E.W.

Court of Appeals of Illinois, Fifth District

February 23, 2015

In re E.W., a Minor,
v.
E.W., Respondent-Appellant) (The People of the State of Illinois, Petitioner-Appellee,

Motion to publish granted, February 23, 2015.

Rule 23 order filed: January 26, 2015.

Page 815

[Copyrighted Material Omitted]

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Appeal from the Circuit Court of St. Clair County. No. 13-JD-22. Honorable Walter C. Brandon, Jr., Judge, presiding.

SYLLABUS

In an extended jurisdiction juvenile proceeding under section 5-810 of the Juvenile Court Act after respondent was adjudicated delinquent pursuant to the entry of a fully negotiated guilty plea to criminal sexual assault and he was sentenced to a probation term of 5 years and respondent then entered an open guilty plea for the adult portion of the EJJ proceeding, the trial court entered a 15-year conditional adult sentence, which was stayed pending successful completion of the juvenile sentence, the stay was then lifted when respondent was found to have violated his probation and the adult sentence was imposed, and following the imposition of the adult sentence, respondent filed a petition for postconviction relief, arguing that his guilty plea was unknowing and involuntary, and where the petition set forth the gist of a constitutional claim, the summary dismissal of his postconviction petition was reversed and the cause was remanded for second-stage postconviction proceedings and reconsideration of the lifting of the stay.

For Appellant: Michael J. Pelletier, State Appellate Defender, Ellen J. Curry, Deputy Defender, Amanda R. Horner, Assistant Appellate Defender, Office of the State Appellate Defender, Fifth Judicial District, Mt. Vernon, IL.

For Appellee: Hon. Brendan F. Kelly, State's Attorney, Belleville, IL; Patrick Delfino, Director, Stephen E. Norris, Deputy Director, Patrick D. Daly, Staff Attorney, Office of the State's Attorneys Appellate Prosecutor, Fifth District Office, Mt. Vernon, IL.

JUSTICE WELCH delivered the judgment of the court, with opinion. Justices Chapman and Schwarm concurred in the judgment and opinion.

OPINION

WELCH, JUSTICE.

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[¶1] As a preliminary matter, because this appeal involves a final order from a delinquent minor proceeding arising out of the Juvenile Court Act of 1987 (the Juvenile Court Act) (705 ILCS 405/1-1 et seq. (West 2012)), Illinois Supreme Court Rule 660A(f) (eff. July 1, 2013) requires that, except for good cause shown, the appellate court issue its decision within 150 days of the filing of the notice of appeal. Accordingly, the decision in this case was due on November 29, 2014. The case was placed on the December 18, 2014, oral argument schedule, and we now issue this opinion.

[¶2] This case was designated for extended jurisdiction juvenile (EJJ) prosecution pursuant to section 5-810 of the Juvenile Court Act (705 ILCS 405/5-810 (West 2012)). In the EJJ prosecution, the respondent, E.W., was adjudicated delinquent after entering a fully negotiated guilty plea to criminal sexual assault. In accordance with the plea agreement, the trial court sentenced him to a term of probation for five years. The respondent then entered an open guilty plea for the adult portion of the EJJ proceeding, and the court entered a 15-year conditional adult sentence, which was stayed pending successful completion of the juvenile sentence. The stay was thereafter lifted when the respondent was found to have violated his probation, and the adult sentence was imposed. Following the imposition of the adult sentence, the respondent

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filed a petition for postconviction relief pursuant to section 122-1 of the Post-Conviction Hearing Act (the Act) (725 ILCS 5/122-1 (West 2012)), arguing that his guilty plea was unknowing and involuntary. He also filed a motion to reconsider the sentence on the basis that the trial court lacked jurisdiction to lift the stay on the previously imposed adult sentence because the State did not file a petition requesting that the stay be lifted. The trial court denied the postconviction petition and the motion to reconsider.

[¶3] On appeal, the respondent argues that the trial court erred by summarily dismissing his petition for postconviction relief in that the court failed to correctly admonish him in accordance with Illinois Supreme Court Rule 402 (eff. July 1, 2012), which rendered his guilty plea unknowing and involuntary; the court erred by imposing an adult sentence of 15 years without conducting a sentencing hearing; he was denied due process when the court lifted the stay on his adult sentence because he was not given sufficient notice as to the nature of the hearing; the court improperly imposed a mandatory supervised release (MSR) term of natural life where the appropriate sentence was an indeterminate term of 3 years to natural life; and he was entitled to 253 days' credit for time served. For the reasons that follow, we reverse the court's denial of the postconviction petition and remand for second-stage proceedings and affirm as modified with regard to the direct appeal.

[¶4] On January 31, 2013, the State filed a petition for adjudication of wardship against the respondent, who was 15 years old, charging him with two counts of criminal sexual assault, a Class 1 felony. On April 12, 2013, the State filed a motion to designate the proceeding as an EJJ prosecution pursuant to section 5-810 of the Juvenile Court Act (705 ILCS 405/5-810 (West 2012)). Section 5-810(1)(a) of the Juvenile Court Act allows the State to file a petition to designate a proceeding as an EJJ prosecution when a juvenile has been charged with an offense that would be a felony if committed by an adult. 705 ILCS 405/5-810(1)(a) (West 2012). A rebuttable presumption that the proceeding shall be designated as an EJJ proceeding is created where the juvenile judge makes the determination that there is probable cause to believe that the allegations contained in the petition are true. 705 ILCS 405/5-810(1)(a) (West 2012).

[¶5] The juvenile judge must enter an order designating the case as an EJJ proceeding, unless the court finds, based on clear and convincing evidence, that sentencing the minor as an adult would not be appropriate. 705 ILCS 405/5-810(1)(b) (West 2012). In making this determination, the trial court must consider various factors, such as the minor's age, delinquency or criminal history, abuse or neglect history, mental health, physical, and/or educational history, and the circumstances of the offense, advantages of treatment within the juvenile justice system, and whether public security requires an adult sentence. 705 ILCS 405/5-810(1)(b) (West 2012). Where the EJJ proceeding results in a finding of guilt, the court is instructed to impose a juvenile sentence and an adult sentence, which is stayed on the condition that the offender not violate the juvenile-sentence provisions. 705 ILCS 405/5-810(4) (West 2012).

[¶6] Here, the hearing on the motion to designate the proceeding as an EJJ proceeding was held in June 2013. At the hearing, the State argued that the following evidence established the rebuttable presumption that the case should be designated as an EJJ proceeding: the respondent was 15 years old; he was charged with two counts of criminal sexual assault,

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a Class 1 felony; the seriousness of the offenses; and the lack of remorse shown by the respondent. The respondent and the State entered into a stipulation as to his age and the fact that the charges were felonies. Defense counsel then declined to present any evidence to refute the State's arguments. The court found probable cause had been established and designated the case as an EJJ proceeding.

[¶7] In July 2013, the State filed an amended petition for adjudication of wardship against the respondent, charging him, in addition to the two original counts for criminal sexual assault, with four counts of criminal sexual abuse and three counts of aggravated criminal sexual assault. The State also filed an amended motion to designate the proceeding as an EJJ proceeding. During the August 29, 2013, guilty plea hearing, the State informed the trial court that a hearing had not been held on the amended motion to designate the proceeding as an EJJ proceeding and therefore the seven charges contained in the amended petition for adjudication had not been designated EJJ. The State renewed its arguments from the previous hearing, and defense counsel stipulated that the age of the minor and the nature of the offenses were sufficient for the proceeding to be " considered and to be treated" as an EJJ proceeding. The court found probable cause had been established and designated the proceeding as an EJJ proceeding.

[¶8] The State then proceeded to recite the terms of the plea agreement, which required the respondent, in pertinent parts, to enter a fully negotiated guilty plea to one count of criminal sexual assault as part of the juvenile portion of the proceedings and serve a period of probation for five years. In exchange, the State would dismiss the remaining eight counts. As for the adult sentence, the State informed the court that negotiations had " broken down" and that no agreement had been reached concerning the disposition.

[¶9] After hearing the terms of the fully negotiated juvenile guilty plea and the fact that no agreement had been reached on the adult portion of the sentence, the court admonished the respondent that it was not required to follow the agreement and that it could sentence him to the " Department of Juvenile Justice for a period of time but not to exceed 30 years or his 21st birthday and/or *** sentence [him] to the Department of Corrections for 30 years." The court proceeded to admonish the respondent concerning the voluntariness of his guilty plea, asking whether he was under the influence of alcohol or controlled substances, whether his psychotropic medication was helping him understand the proceeding (he had a history of mental illness), and whether anyone was forcing him or threatening him to enter a guilty plea. The following colloquy then occurred between the court and the respondent:

" THE COURT: Are you pleading guilty because that's what you want to do?
THE [RESPONDENT]: Yes, sir.
THE COURT: Sir, do you understand that by pleading guilty that there won't be a trial?
THE [RESPONDENT]: Yes, sir.
THE COURT: And if there was a trial, sir, it would be the State's burden of proof to prove that you're guilty of each one of these counts beyond a ...

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