FIFTH DIVISION January 14, 2011
No. 1-09-0920
) Appeal from the ) Circuit Court of ) Cook County In re JOSHUA B., a Minor (The People of the State of ) Illinois, Petitioner-Appellee, v. Joshua B., Respondent- ) No. 08 JD 5307 Appellant). ) ) Honorable ) Andrew Berman, ) Judge Presiding.
JUDGE EPSTEIN delivered the judgment of the court, with opinion.
Presiding Justice Fitzgerald Smith and Justice Joseph Gordon concurred in the judgement and
opinion.
OPINION
In April 2009, respondent, Joshua B., was adjudicated delinquent, placed on probation, and ordered
to perform community service. He appeals, claiming the trial court denied him due process by not advising
him of his right to testify and not verifying that he was knowingly and voluntarily waiving that right. He also
claims the trial court’s order must be modified because his probation impermissibly extends beyond
his twenty-first birthday. For the reasons below, we affirm as modified.
BACKGROUND
In November 2008, the State filed a petition for adjudication of wardship claiming respondent,
who was 16 years old, robbed a fellow student. The student and an adult witness identified
respondent as the robber in separate photo arrays and testified at his delinquency proceeding.
Respondent, who was represented by counsel, called his girlfriend, mother, and father as alibi
witnesses. They testified that respondent was at home talking to his girlfriend on a landline telephone 1-09-0920
at the time of the robbery. Respondent, who was not advised by the trial court of his right to testify,
did not testify. The trial court adjudicated respondent delinquent, stating:
“We have witnesses, two eyewitness, to the event which is not often the case. Both
of the eyewitnesses told internally consistent versions of what happened. There was
not contradiction between one or the other.
What I find compelling evidence here, too, is that both of the eyewitnesses
identified the young man, Joshua B***, in photo arrays that - I believe one was held
at the police station and I think the other one was at the house of Joshua B*** [sic].
So, these are obviously not done contemporaneously. So, we didn’t have a situation
where it could be argued that one witness suggested an identification of another
witnesses. They both picked out the same photo from that array.
You know, standing by themselves, each of those witnesses - I have big
problems with a single-witness-identification case without other corroboration. We
have two witnesses that both gave very compelling and consistent testimony that was
very credible.
On the other side, we have an alibi defense that was put forth by family
members. And I understand that that’s often what witnesses are. There was - You
know, it was interesting to me that the alibi defense really turned on phone calls; and
yet, no corroboration of the phone calls was produced by way of records which is
something that is available to the two people by way of subpoena and that that might
have made an alibi a little bit more compelling than it was because there were
2 1-09-0920
inconsistencies between the stories.
And so, I find that the State has proved this case beyond a reasonable doubt.
I find that State’s witnesses more credible; and so, there will be a finding of
delinquency, finding of guilty.”
The trial court placed respondent on five years’ probation, until April 7, 2014, and ordered him to
perform 60 hours of community service. Respondent appeals claiming the trial court denied him due
process by failing to advise him of his right to testify and failing to verify that he knowingly and
voluntarily waived that right. He also claims, and the State does not dispute, that his probation must
be modified because it impermissibly extends beyond his twenty-first birthday.
ANALYSIS
A. Respondent’s Adjudication Is Affirmed
“A criminal defendant has a constitutional right to testify in his own defense,
but that right may be waived. [Citation.] In order to effect waiver of his right to
testify, a defendant is not required to execute a specific type of waiver, nor is the trial
court required to ascertain whether a defendant’s silence is the result of a knowing
and voluntary waiver to testify.” People v. Chatman, 357 Ill. App. 3d 695, 703
(2005).
“When a defendant contends on appeal that he was precluded from testifying at trial,
however, his conviction cannot be reversed on the basis that he was precluded from
exercising his right to testify, unless he contemporaneously asserted his right to testify
by informing the trial court that he wished to do so.” People v. Shelton, 252 Ill. App.
3 1-09-0920
3d 193, 201 (1993).
Accord People v. Smith, 176 Ill. 2d 217, 234 (1997). Respondent did not do so here, forfeiting the
issue.
We will nonetheless examine the record for plain error, “a narrow and limited exception to
the general waiver rule.” People v. Pastorino, 91 Ill. 2d 178, 188 (1982). It applies
“when (1) a clear or obvious error occurred and the evidence is so closely balanced
that the error alone threatened to tip the scales of justice against the defendant,
regardless of the seriousness of the error, or (2) a clear or obvious error occurred and
that error is so serious that it affected the fairness of the defendant’s trial and
challenged the integrity of the judicial process, regardless of the closeness of the
evidence.” People v. Piatkowski, 225 Ill. 2d 551, 565 (2007).
Respondent claims the trial court erred by not informing him of his right to testify and not verifying
that he knowingly and voluntarily waived that right. We find no such error.
“Illinois courts have long held that when a defendant is represented by counsel, the trial
court does not have a duty to tell a defendant of his right to testify. [Citation.] Rather, it is
the defense counsel’s responsibility to advise a defendant about his right to testify and to
explain any advantages or disadvantages of invoking that right. [Citation.] However, the
ultimate decision of whether to testify is made by the defendant. [Citation.]
When a defendant is represented by counsel, it is left to the discretion of the
trial court whether to inform the defendant of the right against self-incrimination.”
People v. Vaughn, 354 Ill. App. 3d 917, 925 (2004).
4 1-09-0920
Respondent acknowledges these principles, but maintains juvenile offenders are entitled to greater
protection because “unlike an adult convicted felon, under prevailing law a juvenile offender has no
right to file a post-conviction petition.” This court has expressly held that the Post-Conviction
Hearing Act (725 ILCS 5/122-1 (West 2008)), a collateral remedy for most adult offenders, does not
apply to juveniles. In re Thomas, 77 Ill. App. 3d 299, 300 (1979). Our supreme court recently
declined to rule on the issue, however, stating:
“J.T. requests this court to exercise its supervisory authority and address the issue of
whether juveniles can seek relief under the Post-Conviction Hearing Act (725 ILCS
5/122-1 et seq. (West 2004)). We decline to do so for the same reasons we declined
to address this issue in In re William M., 206 Ill. 2d 595 (2003). As in William M.,
the parties offer minimal argument on this issue. As Justice Kilbride noted in his
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FIFTH DIVISION January 14, 2011
No. 1-09-0920
) Appeal from the ) Circuit Court of ) Cook County In re JOSHUA B., a Minor (The People of the State of ) Illinois, Petitioner-Appellee, v. Joshua B., Respondent- ) No. 08 JD 5307 Appellant). ) ) Honorable ) Andrew Berman, ) Judge Presiding.
JUDGE EPSTEIN delivered the judgment of the court, with opinion.
Presiding Justice Fitzgerald Smith and Justice Joseph Gordon concurred in the judgement and
opinion.
OPINION
In April 2009, respondent, Joshua B., was adjudicated delinquent, placed on probation, and ordered
to perform community service. He appeals, claiming the trial court denied him due process by not advising
him of his right to testify and not verifying that he was knowingly and voluntarily waiving that right. He also
claims the trial court’s order must be modified because his probation impermissibly extends beyond
his twenty-first birthday. For the reasons below, we affirm as modified.
BACKGROUND
In November 2008, the State filed a petition for adjudication of wardship claiming respondent,
who was 16 years old, robbed a fellow student. The student and an adult witness identified
respondent as the robber in separate photo arrays and testified at his delinquency proceeding.
Respondent, who was represented by counsel, called his girlfriend, mother, and father as alibi
witnesses. They testified that respondent was at home talking to his girlfriend on a landline telephone 1-09-0920
at the time of the robbery. Respondent, who was not advised by the trial court of his right to testify,
did not testify. The trial court adjudicated respondent delinquent, stating:
“We have witnesses, two eyewitness, to the event which is not often the case. Both
of the eyewitnesses told internally consistent versions of what happened. There was
not contradiction between one or the other.
What I find compelling evidence here, too, is that both of the eyewitnesses
identified the young man, Joshua B***, in photo arrays that - I believe one was held
at the police station and I think the other one was at the house of Joshua B*** [sic].
So, these are obviously not done contemporaneously. So, we didn’t have a situation
where it could be argued that one witness suggested an identification of another
witnesses. They both picked out the same photo from that array.
You know, standing by themselves, each of those witnesses - I have big
problems with a single-witness-identification case without other corroboration. We
have two witnesses that both gave very compelling and consistent testimony that was
very credible.
On the other side, we have an alibi defense that was put forth by family
members. And I understand that that’s often what witnesses are. There was - You
know, it was interesting to me that the alibi defense really turned on phone calls; and
yet, no corroboration of the phone calls was produced by way of records which is
something that is available to the two people by way of subpoena and that that might
have made an alibi a little bit more compelling than it was because there were
2 1-09-0920
inconsistencies between the stories.
And so, I find that the State has proved this case beyond a reasonable doubt.
I find that State’s witnesses more credible; and so, there will be a finding of
delinquency, finding of guilty.”
The trial court placed respondent on five years’ probation, until April 7, 2014, and ordered him to
perform 60 hours of community service. Respondent appeals claiming the trial court denied him due
process by failing to advise him of his right to testify and failing to verify that he knowingly and
voluntarily waived that right. He also claims, and the State does not dispute, that his probation must
be modified because it impermissibly extends beyond his twenty-first birthday.
ANALYSIS
A. Respondent’s Adjudication Is Affirmed
“A criminal defendant has a constitutional right to testify in his own defense,
but that right may be waived. [Citation.] In order to effect waiver of his right to
testify, a defendant is not required to execute a specific type of waiver, nor is the trial
court required to ascertain whether a defendant’s silence is the result of a knowing
and voluntary waiver to testify.” People v. Chatman, 357 Ill. App. 3d 695, 703
(2005).
“When a defendant contends on appeal that he was precluded from testifying at trial,
however, his conviction cannot be reversed on the basis that he was precluded from
exercising his right to testify, unless he contemporaneously asserted his right to testify
by informing the trial court that he wished to do so.” People v. Shelton, 252 Ill. App.
3 1-09-0920
3d 193, 201 (1993).
Accord People v. Smith, 176 Ill. 2d 217, 234 (1997). Respondent did not do so here, forfeiting the
issue.
We will nonetheless examine the record for plain error, “a narrow and limited exception to
the general waiver rule.” People v. Pastorino, 91 Ill. 2d 178, 188 (1982). It applies
“when (1) a clear or obvious error occurred and the evidence is so closely balanced
that the error alone threatened to tip the scales of justice against the defendant,
regardless of the seriousness of the error, or (2) a clear or obvious error occurred and
that error is so serious that it affected the fairness of the defendant’s trial and
challenged the integrity of the judicial process, regardless of the closeness of the
evidence.” People v. Piatkowski, 225 Ill. 2d 551, 565 (2007).
Respondent claims the trial court erred by not informing him of his right to testify and not verifying
that he knowingly and voluntarily waived that right. We find no such error.
“Illinois courts have long held that when a defendant is represented by counsel, the trial
court does not have a duty to tell a defendant of his right to testify. [Citation.] Rather, it is
the defense counsel’s responsibility to advise a defendant about his right to testify and to
explain any advantages or disadvantages of invoking that right. [Citation.] However, the
ultimate decision of whether to testify is made by the defendant. [Citation.]
When a defendant is represented by counsel, it is left to the discretion of the
trial court whether to inform the defendant of the right against self-incrimination.”
People v. Vaughn, 354 Ill. App. 3d 917, 925 (2004).
4 1-09-0920
Respondent acknowledges these principles, but maintains juvenile offenders are entitled to greater
protection because “unlike an adult convicted felon, under prevailing law a juvenile offender has no
right to file a post-conviction petition.” This court has expressly held that the Post-Conviction
Hearing Act (725 ILCS 5/122-1 (West 2008)), a collateral remedy for most adult offenders, does not
apply to juveniles. In re Thomas, 77 Ill. App. 3d 299, 300 (1979). Our supreme court recently
declined to rule on the issue, however, stating:
“J.T. requests this court to exercise its supervisory authority and address the issue of
whether juveniles can seek relief under the Post-Conviction Hearing Act (725 ILCS
5/122-1 et seq. (West 2004)). We decline to do so for the same reasons we declined
to address this issue in In re William M., 206 Ill. 2d 595 (2003). As in William M.,
the parties offer minimal argument on this issue. As Justice Kilbride noted in his
special concurrence in that case, ‘[a] question of such magnitude should be fully
briefed and argued by opposing parties zealously advocating the relevant arguments
prior to its definitive resolution by this court.’ William M., 206 Ill. 2d at 607-08
(Kilbride, J., specially concurring).” In re J.T., 221 Ill. 2d 338, 348-49 (2006).
Nevertheless, in holding that criminal court judges have no duty to advise defendants of their right
to testify this court identified three factors underlying that ruling unrelated to postconviction
proceedings:
“First, a defendant’s decision as to whether or not to testify is often made as the trial
unfolds. [Citation.] By advising a defendant of his right to testify, a court could
influence the defendant to waive his right not to testify, ‘thus threatening the exercise
5 1-09-0920
of this other, converse, constitutionally explicit and more fragile right.’ [Citations.]
Second, a court could intrude upon the attorney-client relationship by advising
a defendant of his right to testify. [Citations.] ‘A trial judge must take great care not
to assume the functions of trial counsel.’ [Citation.] It is primarily the responsibility
of defense counsel, not the trial judge, to advise a defendant as to whether or not he
should testify and to explain the tactical advantages and disadvantages of each option.
[Citation.] If a trial judge were to advise a defendant, sua sponte, of his right to
testify, such an act could frustrate a decision on the matter made by the defendant and
defense counsel who are designing trial strategy. [Citation.]
Finally, a trial judge is not required to inform a defendant of his right to testify
because it is difficult for a judge to determine the appropriate time that he should
advise a defendant concerning his right to testify, since ‘the judge cannot know that
a defendant has not testified until the defense rests and such a moment is not an
opportune time to engage in a discussion with defendant which might lead to a
rupture with defense counsel *** or might undo a trial strategy based on the
defendant’s not testifying.’ [Citation.]” Shelton, 252 Ill. App. 3d at 202.
We find all of these factors equally applicable to proceedings under the Juvenile Court Act of 1987
(705 ILCS 405/1 et seq. (West 2008)) (the Act), and note that section 1-5 of the Act assures that
minors will be represented by counsel. 705 ILCS 405/1-5 (West 2008) (“No hearing on any petition
or motion filed under this Act may be commenced unless the minor who is the subject of the
proceeding is represented by counsel.”). We therefore decline to adopt the bright-line rule advocated
6 1-09-0920
by respondent, and hold that the trial court did not have a duty to inform respondent sua sponte, who
was represented by counsel, of his right to testify or verify that respondent was knowingly and
voluntarily waiving that right.
We note that respondent does not actually claim that counsel did not advise him of his right
to testify. While respondent argues that he cannot “reveal conversations he did or did not have with
his attorney” because such matters are outside of the record, and “on direct appeal a reviewing court
will not consider facts that are not part of the record,” that argument fails. If indeed respondent’s
counsel did not inform him of his right to testify respondent could have made that assertion in his
briefs to the court, noting that the matters were outside of the record, and presented his perceived
inability to raise them before the trial court. See People v. Henderson, 217 Ill. 2d 449, 467-68 (2005).
That would have allowed the State to respond to his claim, and provided us a basis upon which to
determine whether to consider his purported claim. Under this record, there is no claim before us
regarding counsel’s conduct. We find no plain error and affirm respondent’s adjudication.
B. Respondent’s Probation Is Modified
On April 7, 2009, the trial court placed respondent on five years’ probation, until April 7,
2014, and ordered him to perform 60 hours of community service. As section 5-755 of the Act (705
ILCS 405/5-755 (West 2008)) requires respondent’s probation to terminate on his twenty-first
birthday, June 27, 2013, we modify the trial court’s order accordingly.
CONCLUSION
Respondent has forfeited his due process claim, and the trial court did not commit plain error
as it did not have a duty to inform respondent sua sponte of his right to testify or verify that
7 1-09-0920
respondent was voluntarily and knowingly waiving that right. We affirm the trial court’s order as
modified.
Affirmed as modified.