                                2013 IL 110810

                             IN THE
                        SUPREME COURT
                               OF
                      THE STATE OF ILLINOIS


                          (Docket No. 110810)
     In re DANIELLE J., a Minor (The People of the State of Illinois,
     Appellant and Cross-Appellee, v. Danielle J., Appellee and Cross-
                               Appellant).

                      Opinion filed December 19, 2013.

        JUSTICE BURKE delivered the judgment of the court, with
     opinion.
        Chief Justice Garman and Justices Freeman, Thomas, Kilbride,
     and Theis concurred in the judgment and opinion.
        Justice Karmeier concurred in part and dissented in part, with
     opinion.



                                   OPINION

¶1       In the course of Danielle J.’s delinquency proceedings, the circuit
     court of Cook County declared section 5-615(1) of the Juvenile Court
     Act of 1987 (the Act) (705 ILCS 405/5-615(1) (West 2010))
     unconstitutional on its face and as applied to her. Section 5-615(1)
     provides that a juvenile who is not charged with committing first
     degree murder, a Class X felony or a forcible felony may obtain a
     continuance under supervision “(a) upon an admission or stipulation
     by the appropriate respondent or minor respondent of the facts
     supporting the petition and before proceeding to adjudication, or after
     hearing the evidence at the trial, and (b) in the absence of objection
     made in open court by the minor, his or her parent, guardian, or legal
     custodian, the minor’s attorney or the State’s Attorney.” (Emphasis
     added.) The circuit court held that the statutory authority given to the
     State’s Attorney under section 5-615(1)(b) to object to the grant of a
     continuance under supervision violates separation of powers, equal
     protection and due process guarantees. The court then entered an
     order, over the State’s objection, granting respondent a continuance
     under supervision for one year.
¶2       For reasons that follow, we find that the trial court erred in
     reaching the issue of the statute’s constitutionality. We vacate that
     finding and remand for further proceedings consistent with our
     opinion.

¶3                              BACKGROUND
¶4       On January 27, 2010, the State filed a delinquency petition against
     respondent, 15-year-old Danielle J., charging her with having
     committed a misdemeanor battery in violation of section 12-3(a)(1)
     of the Criminal Code of 1961(720 ILCS 5/12-3(a)(1) (West 2010)).
     The petition alleged that Danielle J. was a delinquent minor because,
     on January 15, 2010, while at school, she knowingly caused bodily
     harm to her classmate, Jada M., by striking her in the face and chest.
¶5       On March 8, 2010, prior to the commencement of trial, the State
     offered to recommend a nine-month continuance under supervision
     in exchange for respondent’s guilty plea. Respondent rejected the plea
     offer and the matter proceeded to trial. At trial, the State presented
     two witnesses—Jada M., the alleged victim, and Ivan Navarro, a
     security guard at Ace Technical Charter High School, where
     respondent and Jada attended classes.
¶6       Jada testified that on January 15, 2010, at about 10:30 a.m., she
     was in school and walking to a class when she was confronted by
     Alesha W., another student. Alesha was accompanied by three
     friends, one of whom was respondent. Jada testified that Alesha
     began to argue with her and then took a swing at her. When that
     happened, Navarro, one of the school’s security guards, immediately
     intervened by stepping between her and Alesha. While Navarro was
     holding Alesha away from Jada, respondent came around the security
     guard and punched Jada in the face three to four times. At that point
     a second security guard arrived and took control of respondent.
¶7       Navarro testified similarly to Jada. He said that he saw Jada and
     Alesha begin to argue and immediately intervened by stepping
     between the two girls in an attempt to prevent them from hitting each
     other. Navarro also testified that while he was trying to keep Alesha


                                      -2-
       and Jada apart, he looked to his left and saw that respondent was
       punching Jada in the face. Navarro testified that he saw respondent hit
       Jada three or four times with a closed fist before anyone was able to
       stop her. Navarro also testified that he did not see Jada hit respondent.
       After presenting this testimony, the State rested.
¶8         Defense counsel moved for a directed finding and the trial court
       denied the motion. Counsel then called respondent to the stand. In an
       effort to establish that she acted in self-defense, respondent testified
       as follows. On the morning of January 15, 2010, while attending Ace
       Technical Charter High School, respondent met with her friends,
       Alesha, Sierra, and Chastity, and walked with them to her next class.
       As they walked, Alesha told respondent that she wanted to “confront”
       Jada about something. Moments later, they saw Jada exit a classroom
       and start to walk in their direction. According to respondent, when
       Jada was about two to three feet away, Alesha started arguing with
       Jada. Respondent further testified that a security guard came up to
       Jada and Alesha as they were arguing in the corridor and stepped
       between them just as they both started throwing punches at each
       other. According to respondent, Jada was still throwing punches as
       the security guard held Alesha against the wall. Respondent claimed
       that one of Jada’s punches passed by respondent’s face, barely
       missing her. Respondent admitted that she was not sure whether Jada
       was swinging at her or Alesha. Nonetheless, she retaliated by
       punching Jada in the face. Respondent also testified that both she and
       Jada continued to fight with each other until another security guard
       stopped them.
¶9         After hearing closing arguments, the trial court rejected
       respondent’s self-defense theory and found her guilty of misdemeanor
       battery. The court then continued the matter to April 8, 2010, “for
       social [history] and sentencing.”
¶ 10       On April 8, 2010, the probation officer submitted his social
       history report to the court and recommended that respondent be
       sentenced to one year of probation. The State agreed with that
       recommendation, but suggested that respondent also be ordered to
       attend anger management classes. Defense counsel agreed that anger
       management classes would be appropriate, but asked if the court




                                         -3-
       would consider “some sort of supervision” instead of probation.1 The
       court responded:
                    “THE COURT: Mr. Tountas [defense counsel], a good
               point, except juvenile law doesn’t allow me to consider.
                    And one of the problems I’m having with this case, and
               I’m taking it under consideration, is to [sic] whether to
               declare it unconstitutional as to Juvenile Court, whether or not
               after a trial I have to—basically what I have to do is get the
               State’s permission to enter an order for supervision. That is
               not the case in the adult system.
                    MR. TOUNTAS: That’s correct.
                    THE COURT: In the adult system, even after a trial a
               judge can enter an order of supervision.
                    The only way around that, I think, would be to find it
               unconstitutional as applied to the minor. Due process, I
               believe, might be one argument for that. But simply go ahead
               and—you’re asking me to consider that?”
¶ 11        The trial court, finding that it was prevented from granting
       Danielle a continuance under supervision by the State’s Attorney’s
       objection pursuant to section 5-615(1)(b), continued the dispositional
       hearing and asked both defense counsel and the State to prepare legal
       memoranda regarding the constitutionality of the State’s Attorney
       “approval provision” in section 5-615. A new court date was set for
       June 17, 2010.
¶ 12        At the June 17, 2010, hearing, defense counsel submitted a
       written motion asking the trial court to grant Danielle a continuance
       under supervision over the State’s objection. Counsel asserted that the
       trial court had the authority to enter such an order due to the fact that
       the State’s Attorney “approval provision” in section 5-615 of the Act
       is unconstitutional. Counsel also submitted a memorandum of law, as
       requested by the court, in support of his claim that the State’s
       Attorney “approval provision” in section 5-615(1)(b) is
       unconstitutional. Respondent was not present at this hearing and the
       trial court entered no ruling because the State did not have an
       opportunity to prepare a written response to respondent’s motion or


           1
            It is clear from the record that defense counsel’s request for “some sort
       of supervision” was understood as a request for a continuance under
       supervision pursuant to section 5-615.

                                            -4-
       the memorandum of law regarding the constitutionality of the statute,
       as the court had requested. The court accepted defense counsel’s
       tender of the documents and ordered the State to submit its response
       and memorandum of law by June 25, 2010. The matter was reset for
       disposition on July 1, 2010.
¶ 13       Before ending the hearing, the court asked the assistant State’s
       Attorneys who were present2 about the training they received and the
       guidelines they followed when deciding whether to offer or object to
       supervision. It was explained that assistant State’s Attorneys receive
       no formal training and are given no written guidelines on this specific
       topic. It was noted, however, that newer assistant State’s Attorneys,
       or “third chairs,” generally receive training on plea offers from the
       “first chair” in the courtroom and this includes some instruction on
       when to offer supervision and when to oppose it.
¶ 14       The court asked the assistant State’s Attorneys if they were aware
       of the statutory guidelines used by courts for deciding when to grant
       supervision in adult court.3 In the course of that discussion, Assistant
       State’s Attorney Pillsbury pointed out that in respondent’s case a
       recommendation of nine months’ supervision had been offered to the

           2
            The assistant State’s Attorneys in court on this date were Assistant
       State’s Attorney Pillsbury and Assistant State’s Attorney Rubner, who were
       standing in for Assistant State’s Attorney Omar, who had been assigned
       this case, but was on vacation. Later, a supervisor, Assistant State’s
       Attorney Kelley, came to the courtroom and joined in the discussion.
           3
           The court was making reference to section 5-6-1(c) of the Unified
       Code of Corrections (730 ILCS 5/5-6-1(c) (West 2010)), which provides:
               “(c) The court may, upon a plea of guilty or a stipulation by the
          defendant of the facts supporting the charge or a finding of guilt, defer
          further proceedings and the imposition of a sentence, and enter an order
          for supervision of the defendant, if the defendant is not charged with
          [various misdemeanors or a felony]. If the defendant is not barred from
          receiving an order for supervision as provided in this subsection, the
          court may enter an order for supervision after considering the
          circumstances of the offense, and the history, character and condition
          of the offender, if the court is of the opinion that:
               (1) the offender is not likely to commit further crimes;
               (2) the defendant and the public would be best served if the
          defendant were not to receive a criminal record; and
               (3) in the best interests of justice an order of supervision is more
          appropriate than a sentence otherwise permitted under this Code.”

                                           -5-
       respondent prior to trial, but was rejected. Assistant State’s Attorney
       Pillsbury then commented:
               “And it’s my understanding that in supervision, the idea of
               supervision is that the minor is put on supervision and then no
               finding will be entered if the supervision is term—is
               completed satisfactorily. *** In this case, there’s already a
               finding entered, so the—I guess the point of supervision is
               moot. Since there’s already been a finding, you can’t go back
               and erase it.”
       The court responded,
               “Well, that’s one theory, except in adult court, there can be a
               finding of guilty and the supervisions [sic] could still be
               entered. You’re aware of that; that is correct?”
¶ 15       The assistant State’s Attorney admitted she had no experience in
       adult court and, therefore, was unsure of the procedure. The matter
       was then held over to July 1, 2010.
¶ 16       At the July 1, 2010, hearing, defense counsel urged the court to
       declare the State’s Attorney “approval provision” within section 5-
       615(1) of the Juvenile Court Act unconstitutional, contending that
       this provision violates separation of powers and equal protection, and
       is fundamentally unfair and inconsistent with the manifest goals of
       the Juvenile Court Act. Counsel then asked the court to grant
       respondent a continuance under supervision notwithstanding the
       State’s Attorney’s objection.
¶ 17       The State, on the other hand, argued that the “approval provision”
       in section 5-615(1) is constitutional. The State contended that the
       provision had previously been upheld in In re T.W., 101 Ill. 2d 438
       (1984), and in People ex rel. Devine v. Stralka, 226 Ill. 2d 445
       (2007), and urged the court to find the statute constitutional for that
       reason. The State asked that a sentence of probation be imposed.
¶ 18       After hearing argument, the trial court entered the following
       ruling:
               “In the matter before this Court now in In Re Danielle J.,
               10JD336, after a trial, the minor was found guilty of a battery
               and no adjudication or sentence has yet to be entered. So
               supervision, under the current statute, 705 ILCS 405/5-615(1),
               is not barred assuming no veto by the State’s Attorney.
               However, in this case, the State’s Attorney has objected to the
               continuance under supervision.”


                                        -6-
¶ 19        The court then explained that it found the cases cited by the State
       to be distinguishable or unpersuasive. Further, the court held that,
       even if the statute were facially valid, i.e., if it were constitutional, in
       general, for a State’s Attorney to have the authority to object to an
       order of supervision, it found the State’s Attorney’s exercise of that
       right in this case unconstitutional. The court reasoned that the State
       had offered to recommend an order of supervision before trial, but
       later objected to supervision only because Danielle had opted to go to
       trial. The court found that this amounted to a “trial tax” and held that
       respondent’s election to go to trial was not an appropriate factor for
       the State to consider when deciding whether to object to a grant of
       supervision. In addition, the court noted that the State claimed to be
       objecting to the order of supervision because Danielle’s crime was
       one of violence, i.e., battery. However, the court pointed out that the
       State was aware of the nature of the charged crime when it agreed to
       recommend supervision before trial. Thus, the court found this
       purported reason for the State’s posttrial objection to be
       disingenuous.
¶ 20        Finally, the court noted that the State’s memorandum confirmed
       that assistant State’s Attorneys receive no formal training on when to
       agree or object to an order of supervision; that there is no written
       policy on when an assistant State’s Attorney should agree or object
       to supervision; and there are no statutory guidelines in the Juvenile
       Court Act for determining when supervision might be an appropriate
       sentence, although there are statutory guidelines for granting
       supervision to adults (see 730 ILCS 5/5-6-1 (West 2010)). In light of
       these facts, the court held that the State’s Attorney’s exercise of her
       authority to object to an order of supervision was arbitrary and, as
       such, a violation of due process. The court declared section 5-615 of
       the Juvenile Court Act unconstitutional on its face and as applied to
       respondent, stating:
                “In considering there is no rational basis for the ***
                legislature to treat similarly situated adults and juveniles
                differently with regard to a judge’s authority to impose
                supervision, that constraining a judge’s ability to grant a
                sentence of supervision is counter-intuitive to the Juvenile
                Court Act’s specific goal of rehabilitation and the Act’s grant
                of discretion to the judge’s determining the best interest of the
                juvenile and given the State’s Attorney’s veto power over the
                authority of supervision, I’m finding it to be a violation of


                                           -7-
               separation of powers and of equal protection and of due
               process.”
¶ 21       Having declared the State’s Attorney “approval provision” in
       section 5-615 unconstitutional, the trial court entered an order
       granting respondent a continuance under supervision over the State’s
       Attorney’s objection. Pursuant to the order, Danielle was subject to
       court supervision for one year, during which time she was required to
       continue attending school, complete 20 hours of community service,
       and refrain from any gang, gun, or drug contact. Danielle also was
       referred to the Clinical Interventions Unit for anger management and
       individual counseling.
¶ 22       On July 13, 2010, the court amended the above ruling and, in
       conformance with Supreme Court Rule 18, issued an order finding
       section 5-615(1) of the Juvenile Court Act unconstitutional because
       it does not permit a continuance under supervision if the State’s
       Attorney objects in open court. The grounds listed were: violation of
       separation of powers; violation of equal protection; and “violation of
       due process arbitrarily enforced.”
¶ 23       The State appealed directly to this court pursuant to Supreme
       Court Rule 603 (eff. Oct. 1, 2010).

¶ 24                                 ANALYSIS
¶ 25       Although the State comes before this court on direct appeal from
       the circuit court’s ruling that section 5-615(1) of the Juvenile Court
       Act (705 ILCS 405/5-615(1) (West 2010)) is unconstitutional, the
       State presents no argument regarding the constitutionality of this
       statutory provision. Instead, relying on our decision in In re Veronica
       C., 239 Ill. 2d 134 (2010), the State contends that the trial court erred
       in reaching the issue of the statute’s constitutionality and, therefore,
       the ruling should be reversed.
¶ 26       We agree that our decision in Veronica C. controls the resolution
       of this appeal. In Veronica C., the respondent-minor, like Danielle
       here, was charged with misdemeanor battery against a schoolmate,
       was tried and found guilty as charged. See In re Veronica C., 239 Ill.
       2d at 138. A continuance under supervision was not requested prior
       to the court entering a finding of guilt. After the matter proceeded




                                         -8-
       past the first phase proceedings4 to adjudication and sentencing,
       defense counsel argued that Veronica should be adjudicated
       delinquent and her case closed with no sentence imposed. Id. at 141.
       The court rejected that proposal and imposed a sentence of 12
       months’ probation.
¶ 27        Veronica appealed to the appellate court, where, for the first time,
       she challenged the constitutionality of the State’s Attorney “approval
       provision” in section 5-615(1). Veronica argued that the statute
       violates equal protection and separation of powers because it permits
       the State’s Attorney to bar the circuit court from granting a minor a
       continuance under supervision. The appellate court upheld the
       constitutionality of the statute and affirmed the circuit court’s
       judgment and sentence.
¶ 28        We granted Veronica’s petition for leave to appeal and affirmed
       the appellate court’s judgment, but did not reach the issue of the
       statute’s constitutionality. Rather, we held that Veronica lacked
       standing to challenge the constitutionality of the State’s Attorney
       “approval provision” in section 5-615(1) because she had not been
       adversely affected by the operation of that provision. Id. at 147 (“A
       party may not raise a constitutional challenge to a provision of a
       statute that does not affect him or her.”) (citing People v. Malchow,
       193 Ill. 2d 413, 425 (2000)). In reaching that determination, we
       interpreted section 5-615(1) of the Juvenile Court Act as requiring
       “that the possibility of supervision be broached and considered, if at
       all, before ‘proceeding to findings and adjudication.’ ” (Emphasis in
       original.) Id. at 146. “Adjudication” in this context, we said, meant an
       “adjudication of delinquency, the formal culmination of the first
       phase proceedings.” Id. at 146 n.1. In light of our interpretation of the
       statute, we held that it was the failure to broach the subject of
       supervision prior to a finding of guilt being entered, and not the
       State’s objection, which had prevented her from receiving a
       continuance under supervision. We concluded, therefore, that even if
       we were to hold the “approval provision” of the statute
       unconstitutional, Veronica would not be entitled to the relief she
       sought—a continuance under supervision—because the failure to
       request supervision prior to a finding of guilt being entered made the


           4
            In Veronica C. we explained that juvenile proceedings consist of three
       separate and distinct phases: the findings phase, the adjudication phase, and
       the dispositional phase.

                                           -9-
       State’s Attorney’s objections irrelevant. Accordingly, we held that
       Veronica was unaffected by the statute’s operation and, thus, lacked
       standing to challenge the statute’s constitutionality. For that reason,
       we did not need to address that issue in her appeal.
¶ 29       In the case at bar, Danielle, like Veronica in Veronica C., was
       statutorily precluded from obtaining a continuance under supervision
       once the trial court entered its finding that Danielle was guilty of
       misdemeanor battery. Thus, when Danielle’s attorney requested
       supervision at the adjudication and sentencing hearing, that request
       came too late. See In re Veronica C., 239 Ill. 2d at 146 (the plain
       language of the statute requires that the possibility of supervision be
       broached and considered, if at all, before proceeding to findings and
       adjudication). Furthermore, once the finding of guilt was entered, not
       only was defense counsel statutorily precluded from seeking a
       continuance under supervision, the trial court also was statutorily
       precluded from granting a continuance under supervision, regardless
       of whether the State’s Attorney objected. For this reason, by the time
       Danielle’s counsel sought a continuance under supervision at the
       adjudication and sentencing phases of the proceedings, the statutory
       veto power exercised by the State’s Attorney was no longer relevant.
       Therefore, it was improper for the trial court to consider the
       constitutionality of the “approval provision” within section 5-615(1).
       We find that the trial court erred by doing so and, thus, vacate the
       finding of unconstitutionality. In addition, because the trial court
       lacked statutory authority to grant a continuance under supervision
       once it found Danielle guilty, its subsequent order granting Danielle
       supervision is void and must be reversed.
¶ 30       The State contends that upon reversing the order granting
       Danielle a continuance under supervision, we must remand the matter
       to the circuit court with instructions that the trial court enter a
       disposition of probation. Danielle, however, argues in a cross-appeal5
       that she received ineffective assistance of counsel, or that plain error
       occurred which denied her due process, because neither her attorney
       nor the trial court applied or understood the plain meaning of the
       juvenile supervision statute and, as a result, failed to broach the
       matter of supervision at the appropriate time. She asks that we
       fashion an equitable remedy to address the prejudice she suffers as a


          5
           On August 28, 2012, we entered an order designating the second
       argument in respondent’s brief as a cross-appeal.

                                        -10-
       result of her counsel’s deficient performance and the fundamental
       unfairness of the proceedings. She suggests two possible remedies:
       (1) that we review the trial court’s finding that section 5-615 is
       unconstitutional, or (2) that we remand the matter for a new first
       phase proceeding. Thus, before we can decide the proper disposition
       of this case, we must consider whether, as Danielle argues, she
       received ineffective assistance of counsel or whether the proceedings
       were fundamentally unfair, constituting plain error.
¶ 31        There is no question that a minor charged with committing an
       offense, like Danielle here, is entitled to the effective assistance of
       counsel in juvenile delinquency proceedings. See People v. Austin M.,
       2012 IL 111194, ¶ 76 (minors in delinquency proceedings have a
       nonwaivable statutory right to counsel, as well as a constitutional
       right to effective assistance of counsel). The standard utilized to
       gauge the effectiveness of counsel in juvenile proceedings is the
       Strickland standard, used in criminal cases. See Strickland v.
       Washington, 466 U.S. 668 (1984). Under this standard, ineffective
       assistance of counsel is established if the minor can demonstrate: (1)
       counsel’s performance failed to meet an objective standard of
       competence and (2) counsel’s deficient performance resulted in
       prejudice to the minor. See People v. Denzel W., 237 Ill. 2d 285
       (2010); People v. Evans, 186 Ill. 2d 83, 93 (1999).
¶ 32        Further, under Illinois Supreme Court Rule 615 and Illinois’
       plain-error doctrine, a reviewing court may consider defects in
       proceedings affecting substantial rights if a clear and obvious error
       occurred and that error affected the fairness of the proceedings and
       challenged the integrity of the judicial process. People v. Piatkowski,
       225 Ill. 2d 551, 565 (2007). “Plain error” may properly be invoked
       where a court misapprehends or misapplies the law. See People v.
       Wilkins, 343 Ill. App. 3d 147, 149-50 (2003) (a trial court’s
       misapprehension of a minimum sentence necessitates a new
       sentencing hearing when it appears that the trial court’s
       misunderstanding influenced the sentencing decision); People v.
       Miranda, 329 Ill. App. 3d 837, 845 (2002) (reversal required where
       trial court denied defendant a forfeiture hearing based on its
       misapprehension of the law).
¶ 33        Section 5-615 permits an order of supervision “upon an admission
       or stipulation by the appropriate respondent or minor respondent of
       the facts supporting the petition and before proceeding to
       adjudication, or after hearing the evidence at the trial.” We said in


                                        -11-
       Veronica C. that the plain meaning of this language meant that, in
       juvenile delinquency proceedings, a continuance under supervision
       must be considered, if at all, prior to a finding of guilt being entered
       and the culmination of the first-phase proceeding. Danielle asserts
       that her attorney was deficient because he either did not know these
       requirements or misapprehended them. Danielle also claims she was
       prejudiced as a result of her attorney’s deficiency because he failed to
       inform her that she risked losing the opportunity to obtain a
       continuance under supervision by rejecting the State’s Attorney’s plea
       offer. In addition, because of her attorney’s misapprehension of the
       law, he failed to request supervision after proceeding to trial, but
       before a finding of guilt was entered. As a result, she lost the
       opportunity to obtain a continuance under supervision. Danielle
       asserts that, had her attorney known that a continuance under
       supervision was statutorily precluded once a finding of guilt is
       entered, and had he communicated that to her, she would have
       accepted the State’s plea offer and not gone to trial. Or, if she
       proceeded to trial, she would have requested supervision before a
       finding was entered.
¶ 34       Danielle also contends that her juvenile proceedings were
       fundamentally unfair because the trial court also misapprehended the
       plain meaning of the statute, i.e., that a continuance under supervision
       is statutorily precluded once a finding of guilt is entered. Danielle
       concedes that, generally, a trial court has no obligation to broach the
       subject of a continuance under supervision after trial and before
       finding a respondent guilty. However, in this case the trial court’s
       subsequent actions demonstrated that it believed that supervision was
       the proper disposition for Danielle. Therefore, the failure to broach
       the subject of a continuance under supervision at the proper time was
       a result of the court’s misunderstanding of the plain language of the
       statute, which rendered the proceedings fundamentally unfair.
       Danielle was prejudiced because, absent the trial court’s
       misunderstanding of the law, Danielle’s opportunity to obtain a
       continuance under supervision would not have been lost.
¶ 35       We agree with Danielle. In Veronica C. we held that the plain
       language of the statute required that the subject of supervision be
       broached, if at all, prior to the court entering a finding of guilt. In the
       case at bar, however, both counsel and the court demonstrated a
       misapprehension of the law when they failed to broach the subject of
       a continuance under supervision prior to the entry of a finding of


                                          -12-
       guilt. In fact, the record affirmatively demonstrates that both counsel
       and the court believed a continuance under supervision could be
       granted at the dispositional hearing, even though a finding of guilt
       had already been entered. Moreover, the trial judge repeatedly held
       that supervision was available to Danielle but for the State’s objection
       and then granted Danielle a continuance under supervision over the
       State’s Attorney’s objection, finding the State’s Attorney “approval
       provision” unconstitutional. The record clearly demonstrates that both
       counsel and the trial court were unaware that a continuance under
       supervision was statutorily precluded once a finding of guilt was
       entered. We find, therefore, under the circumstances of this case, the
       failure of both counsel and the trial court to raise the option of
       supervision at an earlier stage in the proceedings, before a finding of
       guilt was entered, was error which affected Danielle’s substantial
       rights. We also find that Danielle received ineffective assistance of
       counsel, was prejudiced by her attorney’s deficient performance, and
       that the trial court’s error affected the fairness of the proceedings
       below and challenged the integrity of the judicial process. Danielle
       was prejudiced by these errors because they denied her the
       opportunity to obtain a continuance under supervision.
¶ 36       In Veronica C., Veronica never argued ineffective assistance of
       counsel, plain error, or that “the trial court’s failure to raise the option
       of supervision at an earlier stage in the proceedings affected the
       fairness of proceedings below and challenged the integrity of the
       judicial process.” See In re Veronica C., 239 Ill. 2d at 147. As a
       result, we did not have the opportunity to consider what remedy
       should be afforded to someone who had established such claims.
       Here, Danielle suggests that a proper equitable remedy for her
       counsel’s and the trial court’s errors would be that this court review
       the trial court’s finding that the State’s Attorney “approval provision”
       in section 5-615 is unconstitutional. In the alternative, she asks that
       we remand this matter to the trial court for a new first phase hearing.
¶ 37       We decline the invitation to consider the constitutionality of the
       section 5-615(1). Danielle, like Veronica in Veronica C., is precluded
       by statute from obtaining a continuance under supervision because the
       subject of supervision was not raised prior to a finding of guilt being
       entered, not because of the State’s Attorney “approval provision”
       within section 5-615. Thus, the constitutionality of the State’s
       Attorney approval provision in the statute is not properly before this
       court.


                                          -13-
¶ 38       We agree, however, that it would be appropriate to remand this
       matter for a new first-phase hearing. By doing so, Danielle could be
       properly advised by counsel that if she proceeds to trial and is
       unsuccessful, the grant of a continuance under supervision would be
       subject to the State’s Attorney’s approval and might be lost. In this
       way, Danielle would be able to make an informed and knowing
       decision about whether to accept the State’s plea offer, should that
       offer be reinstated.
¶ 39       In the event that, upon remand, the State does not extend an offer
       of supervision and the matter should proceed to trial, Danielle would
       have the opportunity to request a continuance under supervision from
       the court prior to a finding being entered. This would not be a futile
       exercise because, as the State made clear at oral argument, there is no
       evidence that the State would have objected to a supervision order
       being entered at that juncture because Danielle never requested
       supervision prior to the court entering a finding of guilt. Of course, in
       the event that the State objects to the court granting Danielle
       supervision, Danielle could, at that time, properly raise a challenge to
       the constitutionality of the statute.
¶ 40       For the reasons stated above, we vacate the circuit court’s finding
       that section 5-615 is unconstitutional. We reverse the order of
       supervision and remand to the circuit court for further proceedings
       consistent with this opinion.

¶ 41       Circuit court judgment vacated in part and reversed in part.
¶ 42       Cause remanded.

¶ 43       JUSTICE KARMEIER, concurring in part and dissenting in part:
¶ 44       As the majority acknowledges, the trial court lacked the statutory
       authority to grant a continuance under supervision once it found
       Danielle guilty. Consequently, its order granting Danielle supervision
       is void and must be reversed. Further, as the majority finds, it was
       improper for the trial court to consider the constitutionality of the
       “approval provision” within section 5-615(1). Thus, the circuit
       court’s finding of unconstitutionality must also be vacated. However,
       for the reasons hereafter set forth, I disagree with the discussion that
       underpins the majority’s remand of this case for “a new first phase
       hearing.”



                                         -14-
¶ 45       Danielle’s claims of ineffective assistance of counsel and plain
       error are meritless, Neither the facts, nor the law, nor considerations
       of equity justify the remand that is the culmination of the majority’s
       errant analysis. As the State suggests, this court should remand the
       matter to the circuit court with directions that the circuit court enter
       a disposition of probation.
¶ 46       The majority agrees with the arguments advanced by Danielle in
       her cross-appeal. See supra ¶¶ 33-34. Even a cursory examination of
       Danielle’s brief exposes inherent inconsistencies in Danielle’s
       position. Danielle’s issue statement reads in part: “Danielle received
       ineffective assistance of counsel and/or she was denied due process
       where neither her attorney nor the trial court applied or understood
       the plain wording of the juvenile supervision statute such that each
       failed to broach the matter of supervision at the appropriate time.”
       (Emphasis added.) A good part of the rest of the brief is devoted to
       showing us how “clairvoyan[ce]” would have been required to
       anticipate “the previously unarticulated interpretation of the
       supervision statute that this Court’s decision in Veronica C.
       represents” and that neither trial counsel nor the circuit court could
       have seen it coming. So which is it? Were both so deficient in their
       understanding or remiss in their edification that they could not grasp
       the “plain wording” of the statute? Or were they both the innocent,
       but otherwise competent, victims of what Danielle would characterize
       as this court’s blindsiding decision in Veronica C.?
¶ 47       If the latter, then Danielle cannot establish the first prong of
       Strickland, i.e., that counsel’s performance was deficient. As we
       noted in People v. English, 2013 IL 112890, ¶ 34, counsel is not
       deficient for failing to anticipate legal developments that could not
       have been foreseen.
¶ 48       Moreover, it is not clear that the trial court was confused. The
       court’s statements during the proceedings leading up to its ruling on
       the statute’s constitutionality demonstrate that it appreciated the
       difference between “supervision” and “probation.” Therefore, its
       consistent references, immediately after trial, to “probation” as the
       most lenient disposition available in Danielle’s case suggest that the
       court, at that point, understood the time for supervision had passed.
       After the trial judge advised Danielle he did not believe her version
       of events, and pronounced her guilty of misdemeanor battery, the
       court stated: “[Y]ou’ve been convicted of a misdemeanor battery
       today. It ranges from a penalty of probation to 364 days in jail.”


                                        -15-
       (Emphasis added.) Shortly thereafter, in the course of answering
       questions posed by Danielle’s grandmother, the court again stated:
       “And, probation—I’ll be honest with you, grandma, probation’s our
       first option.” (Emphasis added.)
¶ 49        When the case was again before the court, on April 8, 2010, the
       court first ascertained that “Mr. Blake,” apparently the author of the
       social history report, believed a disposition of “one year of probation”
       was appropriate. Then, the court inquired of the assistant State’s
       Attorney present, and was advised that the State “agree[d] with the
       Probation Officer’s recommendation of one year probation.” It was
       not until defense counsel mentioned “some sort of supervision”6 that
       the court itself first used that term, and it then became immediately
       apparent that the court had previously considered the constitutional
       implications of the provision requiring State consent, and that the
       court anticipated it might “make an interesting ruling”—though no
       one had raised the constitutionality of the statute to that point—and
       render a judgment that might take this case “straight up to the
       Supreme Court.” However, even after the court expressed interest in
       being the vehicle for a ruling that would send the case on its way to
       this court, the circuit court still appeared to recognize that the time for
       supervision, in a juvenile court context, had passed, as evinced by the
       following statement: “In the adult system, even after trial a judge can
       enter an order of supervision.” (Emphasis added.) The clear
       implication is the court’s recognition that, in the juvenile court
       system, the trial and subsequent finding of guilt served as a
       procedural line of demarcation, beyond which supervision was no
       longer an option.
¶ 50        However, even assuming, arguendo, that both defense counsel
       and the court were oblivious to the applicable procedural sequence for
       consideration of supervision, neither this record nor case law supports
       a finding that Danielle suffered prejudice or that the proceedings were
       rendered fundamentally unfair.
¶ 51        With respect to the circuit court’s role in the matter, the majority
       opinion engages in no meaningful analysis, and discusses no pertinent
       authority, before concluding that the circuit judge’s supposed


           6
            Unlike the majority, I see no evidence of record to indicate that
       counsel’s ambiguous reference to “some sort of supervision” was, at that
       time, a specific reference to a continuance under supervision pursuant to
       section 5-615.

                                          -16-
       ignorance of the procedural sequence for considering supervision
       qualifies as the rare instance of second-prong plain error. It just is.
       The majority does not even acknowledge, much less address, our
       observation in Veronica C. that we were aware of no structural
       mandate—be it a “statutory provision or rule”—that “requires the
       court to raise the prospect of supervision sua sponte.” See Veronica
       C., 239 Ill. 2d at 146. In a brief, we would not have found it necessary
       to even consider unsupported contentions such as those that comprise
       the majority’s analysis; they would have failed to comply with Rule
       341. Here, they constitute the opinion of the court.
¶ 52       The linchpin of this court’s ineffective assistance and plain-error
       “analyses” is the transparent fiction that the State might not have
       objected to supervision had the matter been timely broached by either
       defense counsel or the court. No experienced criminal practitioner,
       confronted with the facts of record, would consider, as realistic, this
       court’s insistence that the State might, after Danielle’s refusal to
       accept responsibility for her actions, and her rejection of a favorable
       plea offer, thereafter have countenanced the same favorable
       disposition. Beyond that, taking into account the aforementioned
       procedural history of the case, who could believe, in light of the
       State’s persistent posttrial protestations that supervision would be
       inappropriate—based on cited factors which were all known prior to
       trial—that the State would have taken a different position
       immediately after the presentation of evidence at trial and before a
       finding of delinquency? Yet, this is—and must be—the centerpiece
       of this court’s analysis if it is to find established either the prejudice
       prong of Strickland or second-prong plain error.
¶ 53       Given this statute’s uncommon dispositional framework, the State
       had the statutory authority to take supervision off the table and,
       though defense counsel and the court could broach the matter, they
       could do nothing in that regard without the State’s consent, which
       would obviously have been withheld here. The points identified by
       the State in oral and written argument as the bases for its decision
       were, as mentioned, all pretrial factors, as the following excerpt from
       the State’s posttrial pleading makes clear:
                “Although the People need not detail their rationale for
           objecting to the imposition of a term of supervision, it should be
           noted that there are several factors that support the People’s
           ultimate position. First, as alluded to above, this is a case where
           the minor refused to accept responsibility for her actions. It is


                                         -17-
           well established that individuals who admit they are guilty and
           accept responsibility for their actions are generally entitled to a
           benefit at sentencing. The minor, in choosing to refuse to accept
           responsibility for her actions, was not entitled to the benefit of a
           term of supervision.
               Furthermore, the People also considered that the minor could
           very well have been charged with a felony for her actions of
           beating the victim on school grounds. By charging the minor with
           the misdemeanor offense of battery, the People had already given
           the minor a substantial benefit.
               Finally, the People considered the facts, circumstances and
           nature of the crime when they objected to a term of supervision.
           This was not a property or possession crime. This is a crime
           where the minor physically beat another teenage girl in broad
           daylight on school grounds in front of a number of other students.
           Considering the level of violence that is escalating in our school
           system, a term of supervision for an individual who refuses to
           accept responsibility for her actions is unwarranted and
           irresponsible.”
¶ 54       On the basis of the record before us, we cannot realistically say
       that the State, at the critical time, might have agreed to supervision.
       This court, in People v. Rivera, 227 Ill. 2d 1, 26-27 (2007), was able
       to examine the record on appeal and ascertain that a multifactor
       Apprendi violation was harmless beyond a reasonable doubt. We
       were able to say with certainty what 12 rational jurors would have
       found. Similarly, looking at this record, there is no doubt what the
       State’s position would have been, with respect to supervision, at any
       point after Danielle rejected the State’s favorable plea offer.
¶ 55       With respect to her rejection of that plea offer, Danielle claims
       she was prejudiced as a result of her attorney’s supposed deficiency
       because he failed to inform her that she risked losing the opportunity
       to obtain a continuance under supervision by rejecting the State’s
       Attorney’s plea offer. In addition, she opines, because of her
       attorney’s misapprehension of the law, he failed to request
       supervision after proceeding to trial, but before a finding of guilt was
       entered. As a result, Danielle concludes, she lost the opportunity to
       obtain a continuance under supervision. Danielle asserts that, had her
       attorney known that a continuance under supervision was statutorily
       precluded once a finding of guilt is entered, and had he
       communicated that to her, she would have accepted the State’s plea

                                        -18-
       offer and not gone to trial. Or, if she proceeded to trial, she would
       have requested supervision before a finding was entered.
¶ 56       As previously indicated, it would not have mattered had counsel
       requested supervision at the critical time. As for Danielle’s claim that
       counsel failed to inform her of the risk inherent in rejecting the
       State’s plea offer, and her assertion that, had he communicated the
       risk to her, she would have accepted the offer, I would note there is
       not one shred of evidence in this record to support either allegation.
       Yet, this court takes that bare claim as an established fact (see supra
       ¶¶ 33, 38), and uses it as part of the justification for its remand “for
       a new first-phase hearing” (supra ¶ 38). This court’s assumptions are
       unwarranted. There is no reason that Danielle should be afforded the
       opportunity to start from scratch, or that her adjudicatory hearing,
       which was apparently devoid of error, should be simply nullified.
¶ 57       At that hearing, the victim testified that she was alone when she
       and a girl in Danielle’s group “had words.” That girl hit the victim in
       the face. The victim stated that a nearby security guard stepped in to
       separate the girls—a fact corroborated by Ivan Navarro, the security
       guard. While the guard was in between the two girls, Danielle
       interjected herself into the situation. The victim testified that Danielle
       punched her three or four times before Danielle was pulled away by
       another security guard. Even then, according to the victim, Danielle
       “got loose and then the other security guard had to tackle her.”
¶ 58       Ivan Navarro testified that the girl in Danielle’s group swung at
       the victim first, and he stepped in to separate them. He then saw
       Danielle throw punches at the victim. He did not see the victim hit
       Danielle or provoke her.
¶ 59       Danielle testified in her own behalf, claiming self-defense.
¶ 60       The trial court rejected that claim, noting that Danielle came
       “from being three people back” to the forefront of the altercation, at
       which time she punched the victim. The court considered the security
       guard a “crucial witness,” and observed that he corroborated critical
       aspects of the victim’s testimony. The court concluded: “I do not buy
       into the affirmative defense in this case of self-defense.” The trial
       judge stated he did not believe Danielle’s story—the judge thought
       she lied.
¶ 61       I see nothing in this scenario, or this record, that would warrant
       the subversion of our jurisprudence in order to accommodate
       Danielle; however, the majority has gone to great lengths to do so.


                                         -19-
¶ 62       What the majority is really doing—with no meaningful analysis
       or citation to pertinent authority—is saying that Danielle was
       prejudiced solely by loss of standing to raise an issue concerning the
       statute’s constitutionality, because it is otherwise clear the State
       would not have consented to a continuance under supervision even if
       Danielle’s counsel had timely broached that subject. The court is
       saying that counsel’s supposed incompetence resulted in forfeiture of
       an opportunity to argue a constitutional issue before this
       court—counsel has already done so successfully in the circuit
       court—that may or may not have merit. That is the prejudice. That is
       the holding that parties may cite henceforth.
¶ 63       I cannot subscribe to that portion of the majority opinion.




                                       -20-
