In Re FN

624 N.E.2d 853, 253 Ill. App. 3d 483, 191 Ill. Dec. 665
CourtAppellate Court of Illinois
DecidedDecember 6, 1993
Docket2-92-0329
StatusPublished
Cited by4 cases

This text of 624 N.E.2d 853 (In Re FN) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re FN, 624 N.E.2d 853, 253 Ill. App. 3d 483, 191 Ill. Dec. 665 (Ill. Ct. App. 1993).

Opinion

624 N.E.2d 853 (1993)
253 Ill. App.3d 483
191 Ill.Dec. 665

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

No. 2-92-0329.

Appellate Court of Illinois, Second District.

December 6, 1993.

*854 G. Joseph Weller, Deputy Defender, Office of the State Appellate Defender, Elgin, David W. Devinger, Woodstock, Kim M. DeWitt, Office of the State Appellate Defender, Elgin, for F.N., Minor Child.

David R. Akemann, Kane County State's Atty., William L. Browers, Deputy Director, State's Attys. Appellate Prosecutor, William K. Keene, Peru, for the People.

Justice McLAREN delivered the opinion of the court:

This is an appeal by F.N., a minor, from an order of the circuit court revoking his probation and committing him to the juvenile *855 division of the Department of Corrections (DOC). On appeal, F.N. claims that he is entitled to a new dispositional hearing because (1) the trial court failed to articulate a statutory basis for committing him to DOC, (2) the trial court failed to consider less restrictive alternatives to commitment to DOC, (3) the trial court abused its discretion in committing him to DOC, and (4) he was denied the effective assistance of counsel when his attorney continued to rely on the probation officer's recommendation after the trial court had already rejected it. We affirm.

On August 29, 1989, the State filed a petition for adjudication of wardship alleging that F.N. committed the offenses of attempted murder (Ill.Rev.Stat.1989, ch. 38, pars. 8-4(a), 9-1(a)(1) (now codified, as amended, at 720 ILCS 5/8-4(a), 9-1(a)(1) (West 1992))), unlawful use of a weapon (Ill.Rev.Stat.1989, ch. 38, par. 24-1(a)(4) (now codified, as amended, at 720 ILCS 5/24-1(a)(4) (West 1992))), unlawful possession of a firearm (Ill.Rev.Stat. 1989, ch. 38, par. 24-3.1(a)(1) (now 720 ILCS 5/24-3.1(a)(1) (West 1992))), and aggravated assault (Ill.Rev.Stat. 1989, ch. 38, par. 12-2(a)(1) (now codified, as amended, at 720 ILCS 5/12-2(a)(1) (West 1992))).

F.N. pleaded guilty to the attempted murder charge on accountability grounds, and the State agreed to dismiss the remaining charges. The State presented its factual basis for the plea, alleging that one of F.N.'s fellow gang members shot at the victim several times, hitting him four times. F.N. was present and fired a gun into the air twice to frighten the targets of the shooting. F.N. was adjudicated a delinquent minor and made a ward of the court. On February 21, 1990, the circuit court of Lake County ordered F.N. to serve 30 days in detention with credit for time already served and a five-year term of probation. F.N.'s probation was conditioned on, among other things, F.N.'s successful completion of the STAY program and drug and alcohol counseling, and abstaining from contact with gang members.

On April 17, 1991, the State filed a petition for a hearing on violation of probation alleging that F.N. committed an assault by taking off his jacket, walking toward an individual and threatening him. The State withdrew this petition when F.N.'s family moved to Kane County. The Lake County court transferred the cause to the circuit court of Kane County.

On February 3, 1992, the State filed a petition for adjudication and supplemental petition I to revoke probation pursuant to section 5-25 of the Juvenile Court Act (Act) (Ill.Rev.Stat.1991, ch. 37, par. 805-25(1) (now 705 ILCS 405/5-25(1) (West 1992))). The petition alleged that F.N. committed the offenses of aggravated battery (Ill.Rev. Stat.1991, ch. 38, par. 12-4(b)(6) (now codified, as amended, at 720 ILCS 5/12-4(b)(6) (West 1992))) and obstructing a police officer (Ill.Rev.Stat.1991, ch. 38, par. 31-1 (now 720 ILCS 5/31-1 (West 1992))). The court ordered juvenile court services to conduct a home study and a social investigation and to make recommendations by February 19.

Juvenile court services prepared a 12-page probation report containing its recommendations. The report revealed that F.N. was referred to the Lake County juvenile court in 1986 on sexual assault charges. This charge was reduced to a lesser charge and the court placed F.N. on supervision. F.N. complied with his supervision, and the case was dismissed. The report also revealed that F.N.'s father, A.N., had observed marked improvement in F.N.'s behavior and relations with family members during the time that F.N. was on probation. F.N. successfully completed the STAY program and the follow-up period of intensive probation. The probation officer opined that F.N. had cooperated throughout all phases of his probation. The probation officer was also of the opinion that F.N. had not had any gang-related contacts since establishing residence in Kane County. The report contained the resource committee's recommendation that F.N. be sentenced to 30 days in the Kane County youth home with credit for time served.

The circuit court held an adjudicatory hearing on February 19, 1992. At the commencement of the hearing, the parties informed the court that F.N. agreed to admit *856 the allegations contained in the aggravated battery count. In return, the State agreed to withdraw the obstruction count and recommended that the court order continued probation and that F.N. serve 30 days in the Kane County youth home with credit for time served. The court stated that it would not accept that disposition. Counsel for F.N. asked if the court had read the probation report. The court responded that it had read the report filed at the time the case was transferred to Kane County but not the report prepared for the probation revocation proceeding.

Counsel for F.N. withdrew F.N.'s admission to the aggravated assault charges and requested a hearing. The State then moved to amend the aggravated battery count to allege that F.N. "made contact of an insulting or provoking nature." The court allowed the amendment over the objection of F.N.'s attorney. F.N.'s attorney then stated that F.N. would admit to the allegations in the aggravated battery count. The court refused to allow the admission and ordered that the hearing proceed.

The testimony received at the hearing revealed that two Carpentersville, Illinois, police officers proceeded to F.N.'s home to arrest his brother, R.N., for suspicion of burglary. When F.N. answered the door, the officers informed F.N. that there was an outstanding warrant for R.N.'s arrest and asked F.N. if they could enter to arrest R.N. F.N. told the officers that they could not enter and blocked the doorway. One of the officers pushed F.N. aside. F.N. pushed the officer and swung at him with a closed fist, striking the officer in the arm. The officer attempted to subdue F.N. at which time F.N. broke away and provoked the officer further. F.N. denied pushing, striking, or provoking the officer.

The court concluded that the State met its burden of proving F.N. committed both offenses and accordingly revoked F.N.'s probation. Counsel for F.N. requested that the dispositional hearing be continued so that the court could review the probation report.

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Bluebook (online)
624 N.E.2d 853, 253 Ill. App. 3d 483, 191 Ill. Dec. 665, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-fn-illappct-1993.