People v. Angel P. (In re Angel P.)

14 N.E.3d 702

In re ANGEL P., a Minor (The People of the State of Illinois, Petitioner–Appellee,

v. Angel P., Respondent–Appellant).

No. 1–12–1749.

Appellate Court of Illinois, First District, Sixth Division.

June 27, 2014.

Rehearing Denied Aug. 12, 2014.

Clifford M. Nellis, of Lawndale Christian Legal Center, of Chicago, for appellant.

Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, Annette Collins, and Veronica Calderon Malavia, Assistant

State's Attorneys, of counsel), for the People.

OPINION

Justice HALL delivered the judgment of the court, with opinion.

¶ 1 The respondent, Angel P., appeals from orders of the circuit court of Cook County adjudicating him a delinquent minor and committing him to the Department of Juvenile Justice.¹ On appeal, the respondent contends that: (1) the denial of his motion to dismiss the delinquency petition was error; (2) the denial of his request for an evidentiary hearing on his motion to dismiss was error; (3) the denial of his motion to dismiss the indictment with prejudice without an evidentiary hearing was error; (4) the State failed to prove him guilty beyond a reasonable doubt that he had possession of a firearm; (5) the State failed to prove him guilty beyond a reasonable doubt of possessing a defaced firearm; (6) the trial court violated the one-act, one-crime doctrine; (7) the trial court erred when it proceeded with the disposition hearing although the social investigation report was tendered untimely; and (8) the trial court erred when it failed to sentence the respondent to the least restrictive alternative sentencing disposition. In response, the State maintains that this court lacks jurisdiction over the respondent's appeal.

¶ 2 BACKGROUND

¶ 3 On November 21, 2011, the respondent was arrested after a police officer witnessed him place a weapon under a vehicle. According to the arresting officer, Chicago police officer Dalcason, the respondent gave his date of birth as September 4, 1994, making the respondent 17 years old at the time of the arrest.

¶ 4 On December 7, 2011, Chicago police officer John Dalcason testified before the grand jury. In response to the assistant State's Attorney's questions, the officer testified that on November 21, 2011, he saw the 17–year–old respondent with a handgun, that a 17–year–old could not lawfully possess a handgun and that the respondent would not be 21 for 4 more years. The grand jury returned an indictment charging the respondent with: one count of unlawful use of a weapon (720 ILCS 5/24–1(a)(10) (West 2010)); one count of possessing a firearm with a defaced identification mark (720 ILCS 5/24–5(b) (West 2010)); and aggravated unlawful use of a weapon (720 ILCS 5/24–1.6(a)(1), (a)(3)(A), (a)(3)(C) (West 2010)). The respondent remained in custody.

¶ 5 On January 18, 2012, the parties appeared before Circuit Court Judge Carol M. Howard. Defense counsel made an oral motion to dismiss the charges for lack of jurisdiction. Defense counsel represented to Judge Howard that the respondent was 16 years old. As proof, counsel presented the judge with a noncertified birth certificate stating that the respondent was born on September 4, 1995. The State requested that a certified copy of the birth certificate be presented. Judge Howard expressed concern with the prospect of a 16–year–old remaining in adult custody until the certified copy of the birth certificate could be presented and placed the respondent on electric home monitoring. The judge ordered defense counsel to file a written motion to dismiss. The case was continued to January 27, 2012.

¶ 6 On January 27, 2012, respondent filed his written motion to dismiss the charges with prejudice and presented a certified birth certificate showing that he was 16 years old. The prosecutor informed Judge Howard that the State was going to nol-pros the case and that a police officer was present to take the respondent into custody as a juvenile on the weapons charges. Defense counsel objected, arguing that the case should be dismissed with prejudice because the indictment was procured through perjured testimony. Judge Howard declined to hold an evidentiary hearing as to the motion to dismiss and allowed the State's motion to nole-pros the charges.

¶ 7 On January 30, 2012, the parties appeared before Circuit Court Judge Stuart Lubin in juvenile court for a probable cause and detention hearing. The State filed a petition for adjudication of wardship, arising out of the respondent's November 21, 2011, arrest. The petition alleged against the respondent, one count of possessing a firearm with a defaced identification mark (720 ILCS 5/24–5(b) (West 2010)); four counts of aggravated unlawful use of a weapon (720 ILCS 5/24–1.6(a)(1), (3), (a)(3)(A), (a)(3)(C), (a)(3)(D), (a)(3)(I) (West 2010)); two counts of unlawful possession of firearms (720 ILCS 5/24–3.1(a)(1), (2) (West 2010)); and possession of firearm ammunition without a firearm owner's identification (FOID) card (430 ILCS 65/2(a)(2) (West 2010)).

¶ 8 Defense counsel filed a motion to release the respondent from custody and dismiss with prejudice the charges contained in the delinquency petition, alleging that Officer Dalcason perjured himself when he testified before the grand jury that the respondent was 17 years old. Based on a previous arrest of the respondent listed in his juvenile history, Judge Lubin found the State knew or should have known the respondent's correct birth date but the officer did not intentionally lie to the grand jury. Judge Lubin denied the motion to dismiss but released the respondent to the custody of his mother because he had not received a hearing within 40 hours as required by section 5–415 of the Juvenile Court Act of 1987 (705 ILCS 405/5–415 (West 2010) ). The judge granted defense counsel time to present case law on whether a dismissal with prejudice was required even if the false testimony was a mistake rather than intentional. On March 22, 2012, the respondent filed a pleading captioned “MOTION TO RECONSIDER DISMISSAL OF CHARGES WITH PREJUDICE OR IN THE ALTERNATIVE STAY PROCEEDINGS PENDING APPEAL.”

¶ 9 On April 25, 2012, the parties appeared for an adjudicatory hearing on the delinquency petition and a hearing on the respondent's motion to reconsider the denial of his motion to dismiss the charges with prejudice.² Judge Lubin declined to hold an evidentiary hearing limiting the proceedings on the motion to argument. Defense counsel maintained that at the time of his arrest on November 21, 2011, the respondent gave the police his correct birth date of September 4, 1995, but the police did not believe him. Before the grand jury, Officer Dalcason testified falsely that the respondent was 17 years old. Defense counsel further maintained that Judge Lubin's finding that the police knew or should have known the respondent's correct age necessitated an evidentiary hearing to determine whether the false testimony was intentional or a mistake. Defense counsel further maintained that, even if the false testimony was unintentional, dismissal with prejudice was still the proper remedy.

¶ 10 The State responded that the adult charges against the respondent had been dismissed. The State pointed out that respondent had no identification on him at the time of his arrest and maintained that the respondent gave Officer Dalcason the incorrect birth date.

¶ 11 Assuming for the purpose of the motion that Officer Dalcason committed perjury, Judge Lubin noted that the remedy was the dismissal of the indictment and that the indictment against the respondent had been dismissed. The judge pointed out that, for an indictment to be dismissed with prejudice, the perjury must go to a fact necessary to establish probable cause. In this case, the respondent's age was not necessary to establish probable cause. Judge Lubin denied the respondent's motion. The case proceeded to the adjudication hearing.

¶ 12 Officer Dalcason testified that on November 21, 2011, he was working as part of a bait car team. The team placed vehicles owned by the Chicago police department in high-theft areas and conducted surveillance of the vehicles. If the vehicle was taken, the engine function could be terminated and the doors locked, enabling the team to place the offender in custody.

¶ 13 Officer Dalcason further testified that on November 21, 2011, he was seated in an unmarked car parked on the north side of Evergreen Avenue, facing west. A vehicle pulled up in front of the unmarked police vehicle. An individual exited from the driver's side and began crossing the street. Half way across the street, the individual looked in the direction of the unmarked police vehicle and immediately reached into his jacket pocket and removed an object. The individual crossed to the south side of the street and walked around a large green suburban utility vehicle (SUV) to the rear of the green SUV. Officer Dalcason observed the individual crouch down and reach around the left rear tire and place a weapon underneath and to the right of the left rear tire of the green SUV. The officer identified the respondent as the individual who placed the handgun under the green SUV.

¶ 14 Officer Dalcason exited the unmarked police vehicle and detained the respondent. When the other team members arrived, the officer recovered a Walther³ semiautomatic pistol, approximately five to six inches long, from underneath the left rear tire of the green SUV. The pistol was loaded with 15 rounds of ammunition. The officer could not read the serial numbers on the pistol as they had been partially defaced. Judge Lubin overruled the respondent's objection to the failure of the State to produce the pistol. When Officer Dalcason asked the respondent how old he was, the respondent told him he was 17 years old. The respondent admitted that he did not have a FOID card. The respondent was not engaged in any hunting activities at the time he was detained.

¶ 15 Officer Dalcason acknowledged that he lost...