                            2016 IL App (2d) 140486-B
                                  No. 2-14-0486
                            Opinion filed May 12, 2016
______________________________________________________________________________

                                           IN THE

                             APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

In re H.L., a Minor                              ) Appeal from the Circuit Court
                                                 ) of De Kalb County.
                                                 )
                                                 ) Nos. 10-JD-103
                                                 )      12-JD-134
                                                 )      13-JD-199
                                                 )
                                                 ) Honorable
(The People of the State of Illinois, Plaintiff- ) William P. Brady,
Appellee, v. H.L., Defendant-Appellant).         ) Judge, Presiding.
______________________________________________________________________________

       JUSTICE BIRKETT delivered the judgment of the court, with opinion.
       Justices Hutchinson and Zenoff concurred in the judgment and opinion.

                                          OPINION

¶1     Beginning in approximately 2010, respondent, H.L., became involved in the juvenile

justice system, admitting to an allegation of mob action, for which he received a five-year term

of probation. Respondent’s behavior would appear to improve, but then respondent would

continue to take backward steps. In 2012, respondent admitted to an allegation of robbery, for

which he received a modified term of probation to continue until his twenty-first birthday. In

2013, respondent admitted to a charge of unlawful possession of cannabis, and this time, the

circuit court of De Kalb County sentenced respondent to an indeterminate term in the

Department of Juvenile Justice (Department).
2016 IL App (2d) 140486-B


¶2     Following this sentence, respondent appealed, arguing that his attorney did not comply

with Illinois Supreme Court Rule 604(d) (eff. Feb. 6, 2013), because he had not filed the

certificate before or at the time of the hearing on respondent’s motion to reconsider his sentence,

and that the trial court erred in sentencing him to an indeterminate term in the Department. We

agreed with respondent’s first contention, and we reversed and remanded the cause for strict

compliance with Rule 604(d). In re H.L., 2014 IL App (2d) 140486, ¶ 7 (H.L. I). The State

appealed, and our supreme court reversed, holding that Rule 604(d) does not require that counsel

file a Rule 604(d) certificate at or before the hearing on the defendant’s postplea motion. In re

H.L., 2015 IL 118529, ¶ 25 (H.L. II). The supreme court remanded this case and ordered that we

consider the remaining issue on appeal. Id. ¶ 27.

¶3     In this appeal, respondent’s remaining issue is whether the trial court abused its discretion

in committing respondent to the Department for an indeterminate term. Respondent argues that

the trial court failed to first consider less restrictive alternatives to indeterminate incarceration

with the Department and that the trial court failed to address the appropriate factors in passing

sentence. We vacate and remand for resentencing.

¶4                                      I. BACKGROUND

¶5     On May 17, 2010, the State filed a petition for adjudication in case No. 10-JD-103,

alleging that respondent was a delinquent minor because he committed the offenses of

aggravated battery (720 ILCS 5/12-4(b)(8) (West 2010)) and mob action (720 ILCS 5/25-1(a)(1)

(West 2010)). The charges arose from an incident in which respondent was alleged to have

struck and kicked another minor in the face and head. On August 12, 2010, respondent pleaded

guilty to the offense of mob action, and the trial court sentenced him to a 60-month term of

probation. In addition the trial court imposed no-contact and no-gang-activity orders and ordered

respondent to complete community service, to participate in school or community activities, to

                                                -2-
2016 IL App (2d) 140486-B


engage in counseling, to attend school, to complete assessments for substance abuse and anger

management, and to follow the resultant recommendations.

¶6     In September 2010, the State filed a petition to revoke respondent’s probation, based on

allegations that respondent committed a battery. Respondent admitted to the petition to revoke,

and the State nol-prossed the battery charge. The trial court modified respondent’s probation,

imposing more conditions.

¶7     In May 2012, the State again filed a petition to revoke, this time based on information in

respondent’s status reports indicating that he had unexcused absences from school and

suspensions from school, had made gang-related drawings or graffiti, was using marijuana, and

was absent from his home without parental permission. Respondent admitted to the petition to

revoke. The trial court modified respondent’s probation, adding a five-day term in juvenile

detention to be stayed pending respondent’s compliance with the other terms of his probation.

The trial court also ordered respondent to submit to inpatient substance-abuse and psychiatric

evaluations and to follow the recommendations.

¶8     On July 23, 2012, the State filed a new petition for adjudication of delinquency against

respondent. In case No. 12-JD-134, the State alleged that respondent had committed the offenses

of robbery (720 ILCS 5/18-1(a) (West 2012)) and battery (720 ILCS 5/12-3(a)(2) (West 2012)).

The charges arose from an incident in which respondent, in answering a Craigslist advertisement,

pushed the victim, who was purportedly selling him a ring, snatched the ring out of her grasp,

and fled to his home. The trial court ordered a temporary detention. Based on the charges in the

new petition for adjudication, the State also moved to revoke respondent’s probation and to lift

the stays on the detention and electronic-home-monitoring orders that had been entered over the

course of respondent’s cases. Respondent was eventually released from the temporary detention,

and the trial court placed him on electronic home monitoring.

                                              -3-
2016 IL App (2d) 140486-B


¶9     Respondent complied with the ordered services. An August 2012 status report showed

that respondent had completed a substance-abuse evaluation and had been placed into an

inpatient treatment program. Respondent’s September 2012 status report noted that respondent

was participating in his inpatient treatment program, which was going well. On September 26,

2012, respondent successfully completed the treatment program, but his prognosis remained

“guarded.”

¶ 10   On October 2, 2012, respondent pleaded guilty to the robbery charge in case No. 12-JD-

134, and respondent admitted to the alleged probation violations in case No. 10-JD-103. On the

same date, the State nol-prossed the battery charge in case No. 12-JD-134. The trial court

accepted respondent’s guilty plea, revoked respondent’s probation on the mob-action charge in

case No. 10-JD-103, and sentenced respondent on the probation violation and robbery

adjudication. The trial court imposed a term of probation extending to respondent’s twenty-first

birthday, ordered respondent to complete 60 hours of community service, and ordered

respondent to pay restitution. The trial court also placed respondent on 45 days of electronic

home monitoring. Finally, the trial court ordered respondent to serve a 30-day term of detention

in the Kane County youth home, but the detention was stayed pending respondent’s compliance

with the other terms imposed.

¶ 11   Respondent’s December 2012 status report disclosed that respondent was falling into his

old behavior patterns. Respondent had written in school that his goal was to become a hardcore

gang member, and he had drawn gang symbols. Respondent also had a number of unexcused

absences from school and suspensions from school.         Respondent had resumed his use of

marijuana. Respondent had not obtained the previously ordered psychiatric evaluation.

¶ 12   In January 2013, the State petitioned to revoke respondent’s probation and to lift the stay

on the 30-day detention. On January 30, 2013, the State amended the petition to revoke, alleging

                                              -4-
2016 IL App (2d) 140486-B


that respondent was not taking prescribed medication. The trial court closed the case because

respondent was not complying with his recommended treatment, he was refusing to participate in

urine testing, and he was leaving his home without parental permission and returning home

intoxicated. On that same day, the trial court issued a juvenile arrest warrant for respondent, and

respondent was arrested within two days. When respondent appeared before the trial court, the

court ordered respondent to resume taking his prescribed medication and released him on the

most restrictive level of electronic home monitoring.

¶ 13   In February 2013, respondent’s status report was not encouraging. Respondent expressly

claimed membership in the Latin Kings, and he continued to leave his home without returning

before his curfew.

¶ 14   On February 14, 2013, respondent admitted the allegations in the State’s petition to

revoke: that he drew gang signs at school, that he had received a suspension from school, that he

used marijuana, that he committed the offense of unlawful possession of alcohol by a minor, and

that he left his home without parental permission. The trial court ended the stay on respondent’s

30-day detention, but respondent received a 4-day credit for time spent in custody. The trial

court additionally modified respondent’s sentence to include an inpatient substance-abuse

evaluation for treatment at Gateway and subsequent compliance with any treatment

recommendations.

¶ 15   In April 2013, the trial court acknowledged that respondent was participating in the

STEPS program. Respondent acknowledged that he had missed three sessions, and respondent

was informed that a fourth absence would result in his termination from the STEPS program.

Respondent also had received school suspensions and unexcused absences from school, had not

completed his previously ordered community service, and had not enrolled in substance-abuse

counseling. Because of this noncompliance, the State filed a petition to revoke respondent’s

                                               -5-
2016 IL App (2d) 140486-B


probation. The State subsequently amended its petition to include the allegation that respondent

received a suspension from school because he made verbal threats, including a gang reference, to

another student.

¶ 16   Before the hearing on the petition, a July 2013 status report indicated that respondent had

stopped attending counseling and had stopped taking his prescribed medication. The status

report also indicated that respondent still owed fees from earlier adjudications, had been away

from his home all day without permission, appeared to be depressed, and had failed to begin his

ordered community service.

¶ 17   On July 11, 2013, respondent admitted to the allegations in the petition. The trial court

modified respondent’s sentence.      Respondent was ordered to attend all of his scheduled

probation appointments, to participate in intensive substance-abuse treatment, to complete his

community service, to attend school, and to attend the STEPS program sessions. Additionally,

the trial court ordered respondent’s mother to report all of respondent’s violations of the terms of

his sentence and to otherwise ensure respondent’s compliance with his sentence.

¶ 18   A STEPS program midterm report indicated that respondent was making satisfactory

progress. However, when respondent missed a fourth session, he was terminated from the

STEPS program. Because of his termination from the STEPS program, the State petitioned to

revoke respondent’s probation.

¶ 19   Early in September 2013, the trial court appointed counsel for respondent and ordered

that he be detained following an allegation of domestic battery. Based on the domestic-battery

allegation, the State petitioned to revoke respondent’s probation. Respondent spent two days in

custody, after which the trial court placed him on electronic home monitoring and ordered

respondent to attend school.

¶ 20   On September 17, 2013, the State petitioned to revoke respondent’s probation, alleging

                                               -6-
2016 IL App (2d) 140486-B


that respondent committed the offense of unlawful possession of cannabis. Subsequently, the

State filed a petition for adjudication in case No. 13-JD-199, alleging that respondent was

delinquent for unlawfully possessing not more than 2.5 grams of cannabis (see 720 ILCS

550/4(a) (West 2012)).       The State also moved to revoke respondent’s electronic home

monitoring, and it amended the petition to revoke probation to include allegations of unexcused

absences from school and suspensions for making gang gestures and being disrespectful to a

teacher. When, in the middle of October, respondent was alleged to have committed criminal

damage to property and an adult arrest warrant was issued, the State amended its petition to

revoke to include this allegation.

¶ 21   On October 31, 2013, the petition for adjudication came on for hearing. Respondent

entered a blind plea of guilty to the cannabis-possession charge in case No. 13-JD-199, and he

admitted to the various probation violations alleged in case Nos. 10-JD-103 and 12-JD-134. The

State nol-prossed the domestic-battery charge and the remaining counts in the petition to revoke

probation. The trial court accepted respondent’s guilty plea, advised him of his rights, and

ordered a social investigation.

¶ 22   Before the case advanced to sentencing, respondent was cited for a violation of his

electronic home monitoring, and he was criminally charged with aggravated battery. Based on

the aggravated-battery charge, the State again petitioned to revoke probation. The trial court

ordered that respondent be detained. On November 21, 2013, the trial court released respondent

on his juvenile cases and ordered him to be placed on electronic home monitoring if he was able

to post bond on his criminal cases.

¶ 23   A juvenile investigation report was compiled in anticipation of respondent’s sentencing.

The report identified offenses occurring between 2009 and 2013. Two charges of aggravated

battery and one charge of domestic battery were dismissed. Respondent was sentenced to

                                             -7-
2016 IL App (2d) 140486-B


probation on charges of mob action and robbery. Respondent had pending criminal cases for the

offenses of criminal damage to property and aggravated battery. While respondent was on

probation, the State filed 11 petitions to revoke; violations were found in 7 of the petitions to

revoke, with 3 still pending. During this time, respondent received services for drug treatment,

anger management, and mental health. Respondent successfully completed a 2012 inpatient

drug-treatment program, but after that program he continued to use marijuana. Respondent

participated in the STEPS program, but, despite making satisfactory progress, he was expelled

from the program due to poor attendance.

¶ 24   During the relevant time period, the trial court ordered respondent to be detained seven

times, two of which were served in the De Kalb County jail. While on probation, respondent

exhibited a generally positive attitude. Nevertheless, respondent continued to engage in serious

misbehavior, including threats, assaults, and bullying. Respondent was placed into enhanced

probation services because of his many violations. Respondent’s probation officer opined in the

report that respondent had a high risk of reoffending and had demonstrated an unwillingness to

change his behavior, including his gang participation. Ultimately, respondent’s probation officer

recommended that he be committed to the Department.

¶ 25   A February 2014 status report was prepared. The status report indicated that respondent

was making good progress with his therapist. In addition, respondent’s school district enrolled

him in a homebound program and set up a computer for his use, but, according to the report,

respondent had not yet used it.

¶ 26   On February 27, 2014, the case advanced to the sentencing hearing.          Respondent’s

probation officer, Matt Mills, testified that he had completed the juvenile investigation. On

February 26, 2014, respondent had tested positive for tetrahydrocannabinol (THC).          Mills

testified that THC persisted in the body for 30 days and could produce a positive test result

                                              -8-
2016 IL App (2d) 140486-B


during that time. Respondent had not been tested recently, but some of the positive testing

occurred within 30 days of the previous positive test.

¶ 27   Mills testified that respondent was receiving counseling and outpatient treatment from the

Ben Gordon Center. Mills consulted respondent’s counselor there and learned that, in the

counselor’s opinion, respondent was positively motivated and had good attendance.

¶ 28   Mills testified that he interviewed respondent. Mills reported that respondent believed

that, at the time of each of his offenses, respondent had been highly intoxicated and his

intoxication had impaired his judgment. Respondent also believed that he was susceptible to

peer pressure, especially when he was using alcohol and marijuana.

¶ 29    Mills testified that, although respondent had been engaged in numerous services during

his probations, he had not yet been paired with a mentor from a court-ordered mentoring

program. Mills believed that mentoring would likely be helpful to respondent, but Mills was

unsure whether mentoring would affect respondent’s criminal propensities or gang membership.

¶ 30   Mills opined that respondent had demonstrated remorse for his offenses and appeared to

accept responsibility for his actions. Respondent’s attitude was positive, and he appeared to be

sincerely interested in effecting positive changes to his life. Mills conceded that, in spite of

respondent’s positive attitude toward changing his life and behavior, respondent nevertheless

remained involved with a gang.

¶ 31   Following Mills’s testimony, the State asked the trial court to consider respondent’s

school disciplinary reports and police reports. The State rested.

¶ 32   Respondent testified that he was currently receiving treatment with the personnel at the

Ben Gordon Center. Respondent noted that he had been prescribed medication, but he stopped

taking the medication because it caused him to have suicidal thoughts. Respondent testified that

the counseling he had received at Ben Gordon had been helpful, particularly because he learned

                                               -9-
2016 IL App (2d) 140486-B


positive ways to cope with stress. Respondent testified that his high school provided him with a

computer with which he completed his schoolwork. Respondent also informed the trial court

that he had been seeking employment, but he had not yet been successful in obtaining

employment.

¶ 33   The parties provided their recommendations for sentencing. The State recommended

commitment to the Department for an indeterminate term. The State relied on respondent’s

continued gang involvement and continued use of marijuana and alcohol, his pending criminal

cases, and his numerous probation violations. Respondent recommended that he receive a

determinate sentence in the Department, ending in about six weeks on his eighteenth birthday.

Respondent relied on the positive steps he had taken during probation to achieve rehabilitation

and the fact that he had consistently been remorseful over the offenses he committed.

Respondent also noted that, since beginning substance-abuse treatment, he had substantially

improved his behavior.

¶ 34   The trial court passed sentence, first providing an oral explanation:

                  “Okay. These cases all are difficult for a variety of reasons. It is clear that

       [respondent] has some problems with the use and abuse of illegal substances, but if that’s

       all there was, we wouldn’t be talking about going to the Illinois Department of Juvenile

       Justice.     Actually I can recall very clearly his completion of a drug program and

       everybody was saying things were working out well at that point, and I think that’s about

       a year and a half ago, something like that.

                  It’s being suggested that there’s also some mental health issues, but he’s not

       being—no one is seeking to send him to the Illinois Department of Juvenile Justice

       because of mental health issues. Services have been provided to him regularly over the

       past few years, some of which he’s been cooperative with, some of which not so much,

                                               - 10 -
2016 IL App (2d) 140486-B


      but the common thread through all these cases, a number of which have ended in

      violence, are [sic] his involvement with gangs and involvement in gang activity. People

      have been hurt because of that, and that’s of a concern to the Court.

              I can provide services for drug problems. I can provide services for mental health

      problems. I can provide services for anger management. I can’t provide services for

      gang involvement, and for whatever reason that constant throughout all these cases tells

      me that our ability to address this issue locally has failed.

              I’m to take into consideration before I sentence somebody to the Department of

      Juvenile Justice a number of factors. Included among those factors are his age, and he’s

      on the cusp of being an adult. He has been in the system for close to four years now and

      has a criminal background that is significant in that it does include multiple felony

      charges.

              The Court has had the opportunity to review the educational background, and

      there’s been numerous ups and downs with that as well as *** staying in school because

      of involvement with the gangs. The Court also has taken into consideration his physical,

      mental and emotional health and that he has been provided services to address those

      issues where they have arisen, and what community-based services have been provided

      I’m to make a determination [whether] he’s been compliant. Well, with some of them,

      yes; with many of the others, no.

              I do believe that reasonable efforts have been made to prevent or eliminate the

      need for [respondent] to be removed from the home and that the removal from the home

      is in the best interest of the public at large as well as [respondent].

              I further find that his parents are unable for a reason other than financial

      circumstances alone to care for, protect, train or discipline [respondent] and the public

                                               - 11 -
2016 IL App (2d) 140486-B


       will not be served by placement under [section] 5-740 [of the Juvenile Court Act of 1987

       (Act) (705 ILCS 405/5-740 (West 2014))] and that it is necessary to ensure the protection

       of the public that he be committed to protect the public from the consequences of his

       criminal activity.

               This is not something that this Court does lightly. It is not something that the

       Court does often. What is also a threat in those cases where the Court is required to

       commit the minor is the violence associated with kids involved in gang activity.

               I don’t know if this commitment will benefit the minor in the future. It is hopeful

       that the services that are available through the Department of Juvenile Justice will be

       made available to him and that he’ll avail himself of those services. He can choose to

       continue his involvement with gang activities while there, but eventually he’ll get out and

       find himself back in front of another judge in another courtroom for something else.

               It is as a movie [‘]A Road to Perdition.[’] It’s something that he has to make sure

       that he cleanses himself of the taint that is associated with gang activities, and until he’s

       of a mind to make that decision, all the help in the world, all the services in the world

       won’t assist him in living the type of life that we all want.

               So I will enter an order committing him to the Illinois Department of Juvenile

       Justice for an indefinite period of time not to exceed his 21st birthday.”

¶ 35   Respondent filed a motion to reconsider, arguing that he had not served a definite term

before he was sentenced to the indeterminate term. Respondent argued that a 60-day term would

be appropriate based on the charges and violations. In dialog with respondent’s counsel, the trial

court asserted that it could not place respondent in the youth home for more than 30 days, and it

recognized that respondent had spent a total of 69 days in the youth home and in the county jail

prior to his current sentencing. The trial court then denied the motion to reconsider, offering the

                                               - 12 -
2016 IL App (2d) 140486-B


following reasoning:

              “Well I do realize that the Court focus should not be on incarceration, placing

       people in jail when you’re dealing with minors. That’s not a personal belief. That’s a

       legal premise that the Appellate Supreme Court [sic] of the state have consistently

       established.

              However, the Courts also made it clear that where the resources of the community

       have been utilized to try and benefit the minor, that commitment to the Illinois

       Department of Juvenile Justice is appropriate and the Court can use that as a resource.

              Certainly the recommendation of the probation department who had had extensive

       contact with [respondent] over the course of the years he was on probation was that the

       resources of the community had been used up and there wasn’t anything else that could

       be utilized. [Respondent], like many minors coming through here, had his hills and his

       valleys. In other words, there were times when the probation department was—I won’t

       use the word excited but certainly were encouraged with some of the efforts that he made,

       but following those efforts he would fall back into a pattern that made it clear to the

       probation department and more importantly made it clear to this Court that our attempts

       at rehabilitating [respondent], our attempts at encouraging [respondent] to take advantage

       of all the resources, was falling on deaf ears.

              I made the decision to commit him not lightly. I probably in the seven years I’ve

       been doing this if I’ve had ten minors that had to have been committed to the Department

       of Juvenile Justice that probably is about right. We don’t use that, but it is one of those

       things that you know it when you see it and this was one of those cases based on the

       charges that brought him before the Court which were significant along with his failure to

       fully engage himself in all the resources that were made available to him made it clear

                                               - 13 -
2016 IL App (2d) 140486-B


        that we were not able to benefit him in a way that would make it productive for both him

        as well as the people in this community.

                Based on all that, [respondent’s] motion to reconsider is denied. The sentence

        will stand.”

¶ 36    Respondent filed a timely notice of appeal. On that same day, respondent’s counsel filed

a Rule 604(d) certificate. In H.L. I, respondent raised the issues of the timeliness of the filing of

the Rule 604(d) certificate and the propriety of the indeterminate sentence; we considered only

the certification issue. H.L. I, 2014 IL App (2d) 140486, ¶ 1. Our supreme court reversed our

decision in H.L. I, and it remanded the cause and ordered that we consider respondent’s

sentencing issue. H.L. II, 2015 IL 118529, ¶¶ 25, 27. Accordingly, in this appeal, we consider

respondent’s arguments on the propriety of the indeterminate sentence.

¶ 37                                      II. ANALYSIS

¶ 38    On appeal, respondent argues that the trial court erred in committing him to the

Department for an indeterminate term. Specifically, respondent contends that the trial court did

not make an express finding that committing him to the Department was the least restrictive

alternative.   Respondent also contends that the trial court erred by not considering proper

sentencing factors as well as by giving weight to improper sentencing factors.

¶ 39                                  A. Standard of Review

¶ 40    We review the trial court’s decision to commit a minor to the Department for an abuse of

discretion. In re Ashley C., 2014 IL App (4th) 131014, ¶ 22. However, whether the trial court

complied with statutory requirements presents a question of law, which is reviewed de novo (id.);

likewise, the application of law to undisputed facts (to the extent that such an issue is presented

in this case) is also reviewed de novo (People v. Clark, 2013 IL App (2d) 120034, ¶ 23).

¶ 41                              B. Least Restrictive Alternative

                                               - 14 -
2016 IL App (2d) 140486-B


¶ 42   Respondent argues that the trial court failed to consider less restrictive alternatives, thus

failing to properly give effect to section 5-750 of the Act (705 ILCS 405/5-750 (West 2014)).

During the pendency of respondent’s cases in the trial court, section 5-750 was amended. Before

the 2012 amendment, section 5-750 provided:

               “(1) Except as provided in subsection (2) of this Section, when any delinquent has

       been adjudged a ward of the court under this Act, the court may commit him or her to the

       Department of Juvenile Justice, if it finds that (a) his or her parents, guardian or legal

       custodian are unfit or are unable, for some reason other than financial circumstances

       alone, to care for, protect, train or discipline the minor, or are unwilling to do so, and the

       best interests of the minor and the public will not be served by placement under Section

       5-740 or; (b) it is necessary to ensure the protection of the public from the consequences

       of criminal activity of the delinquent.” 705 ILCS 405/5-750(1) (West 2010).

¶ 43   The amendment to section 5-750 combined subsections (1)(a) and (1)(b) from the 2010

version of the Act and added a new subsection (1)(b), which required the trial court to make an

express finding that commitment to the Department is the least restrictive alternative:

               “(1) Except as provided in subsection (2) of this Section, when any delinquent has

       been adjudged a ward of the court under this Act, the court may commit him or her to the

       Department of Juvenile Justice, if it finds that (a) his or her parents, guardian or legal

       custodian are unfit or are unable, for some reason other than financial circumstances

       alone, to care for, protect, train or discipline the minor, or are unwilling to do so, and the

       best interests of the minor and the public will not be served by placement under Section

       5-740, or it is necessary to ensure the protection of the public from the consequences of

       criminal activity of the delinquent; and (b) commitment to the Department of Juvenile

       Justice is the least restrictive alternative based on evidence that efforts were made to

                                               - 15 -
2016 IL App (2d) 140486-B


       locate less restrictive alternatives to secure confinement and the reasons why efforts were

       unsuccessful in locating a less restrictive alternative to secure confinement. Before the

       court commits a minor to the Department of Juvenile Justice, it shall make a finding that

       secure confinement is necessary, following a review of the following individualized

       factors:

                         (A) Age of the minor.

                         (B) Criminal background of the minor.

                         (C) Review of results of any assessments of the minor, including child

                  centered assessments such as the CANS.

                         (D) Educational background of the minor, indicating whether the minor

                  has ever been assessed for a learning disability, and if so what services were

                  provided as well as any disciplinary incidents at school.

                         (E) Physical, mental and emotional health of the minor, indicating whether

                  the minor has ever been diagnosed with a health issue and if so what services

                  were provided and whether the minor was compliant with services.

                         (F) Community based services that have been provided to the minor, and

                  whether the minor was compliant with the services, and the reason the services

                  were unsuccessful.

                         (G) Services within the Department of Juvenile Justice that will meet the

                  individualized needs of the minor.” 705 ILCS 405/5-750(1) (West 2014).

¶ 44   Respondent argues that the State did not present evidence of its efforts to locate a less

restrictive alternative pursuant to the current requirements of section 5-750(1)(b) of the Act (705

ILCS 405/5-750(1)(b) (West 2014)). While the sufficiency of the evidence of a search for a less

restrictive alternative might be a debatable issue, there is a more fundamental flaw in the trial

                                                 - 16 -
2016 IL App (2d) 140486-B


court’s February 27, 2014, judgment: namely, the lack of an express finding that commitment to

the Department was the least restrictive alternative. The State acknowledges that the trial court

“did not explicitly use the terms ‘the commitment to the [Department] was the least-restrictive

means.’ ” Our review of the record shows further that the trial court did not purport to make a

finding that commitment to the Department was the least restrictive alternative. The question

then becomes whether the trial court was required to make such an express finding.

¶ 45    Whether the Act requires a trial court to make a particular finding is a matter of statutory

construction, and we review such a construction de novo. In re Henry P., 2014 IL App (1st)

130241, ¶ 53. Historically, before the 2012 amendment, courts of review had held that a minor

should be committed to the Department only when a less restrictive alternative would not be in

the best interests of the minor and the public. Id. ¶ 55. When the statute was amended in 2012,

the legislature included a requirement that the trial court make an express finding that

commitment to the Department would be the least restrictive alternative. Id. ¶ 56. The plain

language of the Act “states that the trial court may commit [a minor] to the [Department] only if

it finds that commitment to the [Department] is the least-restrictive alternative.” Id. ¶ 57. “In

other words, the trial court has discretion to commit [a minor] to the [Department], but it may

only do so if it first makes a finding that there are no less-restrictive alternatives to secure

confinement available to [the minor].” Id. Even if the record might support a determination that

no less restrictive alternatives were available for the minor, the plain language of section 5-

750(1)(b) clearly requires the trial court to make a finding that commitment to the Department is

the least restrictive alternative. Id. ¶ 60.

¶ 46    Here, the trial court did not verbally state that it had determined that commitment to the

Department was the least restrictive alternative available for respondent in this case. Likewise, it

did not provide a written finding that commitment to the Department was the least restrictive

                                               - 17 -
2016 IL App (2d) 140486-B


alternative. Further, the court did not state on the form order that commitment was the least

restrictive alternative. Indeed, the form order indicated that it was most recently revised in 2011,

which perhaps accounts for the fact that the order did not contain a checkbox or line to indicate

that commitment to the Department was the least restrictive alternative. Based on our review of

the record, we conclude that the trial court did not make the finding required in section 5-

750(1)(b) of the Act.

¶ 47   The State acknowledges that Henry P. held that, because the trial court did not make the

finding that commitment to the Department was the least restrictive alternative, the cause had to

be remanded to the trial court to allow it to comply with the provisions of section 5-750(1)(b) of

the Act. Id. ¶ 62. Indeed, we believe that the circumstances in this case are on all fours with

Henry P., and, accordingly, we choose to follow it.

¶ 48   In Henry P., the trial court interpreted the amended section 5-750(1) to require that the

trial court make an express finding that commitment to the Department was the least restrictive

alternative available for the minor. Id. ¶ 57. The trial court there did not make the required

finding. Id. ¶ 58. The State argued that the amended section 5-750(1) did not actually mandate

the trial court to make a written finding or to check a box on a form order indicating that it made

the finding. The Henry P. court rejected that argument, noting that “the plain language of

section 5-750(1)(b) states that the trial [court] must find that commitment is the least-restrictive

alternative.” Id. ¶ 60. The appellate court also distinguished between a requirement that a trial

court consider lesser alternatives, which applied in the cases cited by the State, and a requirement

that a trial court make a finding. Id. The appellate court also distinguished between the question

of whether, during sentencing pursuant to the Unified Code of Corrections (730 ILCS 5/5-4-1, 5-

8-1 (West 2014)), the trial court is required to state on the record all of the reasons on which a



                                               - 18 -
2016 IL App (2d) 140486-B


sentence is based, and the question, like in that case and this case, whether the trial court is

required to make a particular finding. Henry P., 2014 IL App (1st) 130241, ¶ 61.

¶ 49   Finally, in dicta, the appellate court stated that it was concerned with the effect if it

determined “that the trial court made the statutorily required finding based solely on its statement

that it considered the issue.” Id. ¶ 62. The court concluded that “[s]uch a holding would call into

question whether express findings are even necessary, which would be in direct conflict with

[the] purpose of adding the new requirement to the statute.” Id. We find this reasoning to be

entirely persuasive. Accordingly, we hold that Henry P. is directly on point and controls our

outcome here: because the trial court did not make the necessary finding that commitment to the

Department was the least restrictive alternative, we must vacate the sentence and remand this

cause to the trial court with directions to follow the requirements of section 5-750(1) in

resentencing respondent.

¶ 50   The State, despite acknowledging the holding of Henry P.—that the Act requires the trial

court to make an express finding that commitment to the Department is the least restrictive

alternative available (id. ¶ 60)—contends that we can ignore the fact that the trial court did not

make an express finding, because the trial court sufficiently talked around the issue such that we

can conclude that it implicitly made the finding. We disagree. While the State correctly notes

that we might be able to determine that the trial court considered alternatives, including lesser

sentences than commitment to the Department for an indeterminate term, the Act nevertheless

requires a finding that “commitment to the Department of Juvenile Justice is the least restrictive

alternative based on evidence” (705 ILCS 405/5-750(1)(b) (West 2014)). If we dispense with

requiring the trial court to follow the express provisions of the Act, we invite the problems

identified in Henry P.: allowing the trial court to evade the necessity of making a finding “would

call into question whether express findings are even necessary, which would be in direct conflict

                                               - 19 -
2016 IL App (2d) 140486-B


with [the] purpose of adding the new requirement to the statute.” Henry P., 2014 IL App (1st)

130241, ¶ 62. Thus, accepting the State’s position would rewrite section 5-750(1)(b), and this

would violate the principles of statutory interpretation. WKS Crystal Lake, LLC v. LeFew, 2015

IL App (2d) 150544, ¶ 23 (“[a] court may not, in the guise of interpreting a statute, ignore its

plain language and read into it exceptions, limitations or conditions that conflict with the express

legislative intent”).

¶ 51    In making its implicit-finding argument, the State relies on People v. Villarreal, 198 Ill.

2d 209, 227-28 (2001), and People v. Harding, 2012 IL App (2d) 101011, ¶ 17, apparently for

the proposition that, in certain cases, an implicit finding may suffice despite a statutory provision

requiring an express finding. However, both Villarreal and Harding discuss the unfairness of

allowing a defendant to prevail when he has invited the error, and we do not believe that these

cases support the State’s contention, especially where, as here, respondent consistently

challenged the trial court’s failure to provide an express finding.

¶ 52    The State also argues that the record supports a finding that commitment to the

Department was the least restrictive alternative. We need not consider this argument, because,

even if it is true, the trial court did not make that finding. Moreover, the court in Henry P. noted

that, “although the appellate record may support a determination that there were no less-

restrictive alternatives available to [the] defendant, the plain language of section 5-750(1)(b)

states that the trial [court] must find that commitment is the least-restrictive alternative.” Henry

P., 2014 IL App (1st) 130241, ¶ 60. Thus, the Henry P. court rejected the State’s precise

argument here. As we have noted, we believe that Henry P. is on point and must be followed.

Accordingly, even if the record in this case supports a finding that respondent’s commitment to

the Department was the least restrictive alternative, the trial court did not actually make such a

finding, and the failure to make that finding conflicts with the plain and unambiguous language

                                               - 20 -
2016 IL App (2d) 140486-B


of section 5-750(1)(b) of the Act (705 ILCS 405/5-750(1)(b) (West 2014)). Accordingly, we

reject the State’s contention.

¶ 53   The State also attempts to analogize the requirement that the trial court find that

commitment to the Department is the least restrictive alternative pursuant to section 5-750(1)(b)

with the requirement that a trial court order the least restrictive alternative in involuntary-

commitment cases pursuant to section 3-811 of the Mental Health and Developmental

Disabilities Code (Mental Health Code) (405 ILCS 5/3-811 (West 2014)). While this might, at

first blush, seem to be a reasonable analogy, we note that section 3-811 requires that “[t]he court

shall order the least restrictive alternative for treatment which is appropriate.” Id. By contrast,

section 5-750(1)(b) provides that “the court may commit [a minor] to the Department of Juvenile

Justice, if it finds that *** (b) commitment to the Department of Juvenile Justice is the least

restrictive alternative.” 705 ILCS 405/5-750(1)(b) (West 2014). The Mental Health Code

mandates the entry of a particular order; the Act, by contrast, requires that the trial court make a

particular finding before entering a commitment order. Thus, any analogy to the Mental Health

Code is inapposite.

¶ 54   The State also argues that the trial court properly considered the alternatives before

deciding on the least restrictive alternative, but was not required to enumerate all of the

alternatives considered before making its disposition.       This argument conflates the proof

presented during the relevant hearing with the trial court’s responsibility to make an express

finding. The record might support such a finding, but, pursuant to Henry P. and the plain and

unambiguous language of section 5-750(1)(b), the presence of evidence that would support a

finding does not stand in for the trial court actually and expressly making the finding. Id.; Henry

P., 2014 IL App (1st) 130241, ¶ 57 (a trial court may commit a minor to the Department “only if

it finds that commitment to the [Department] is the least-restrictive alternative”).         While

                                               - 21 -
2016 IL App (2d) 140486-B


enumeration of the alternatives might not need to be comprehensive, there is no avoiding the

requirement in section 5-750(1)(b) that the court must make a finding that commitment to the

Department is the least restrictive alternative.

¶ 55   The State argues that the trial court made the requisite finding under section 5-750(1)(a):

that respondent’s parents were unable, for a reason other than financial circumstances alone, to

care for, protect, train, or discipline respondent and the best interests of respondent and the

public would not be served by placement under section 5-740, or commitment was necessary to

ensure the public’s protection from the consequences of respondent’s criminal activity. While

this might be true, it is not the whole story. The trial court is still required to make a least-

restrictive alternative finding under section 5-750(1)(b), and despite the presence of a subsection

(a) finding, the trial court did not make the necessary least-restrictive-alternative finding

pursuant to subsection (b).

¶ 56   Last, the State argues that the purpose of the Act was fulfilled even in the absence of an

express finding that commitment was the least restrictive alternative. We disagree. The State

only recasts its argument that evidence supporting such a finding can replace the finding itself.

Under our reading of section 5-750(1) and Henry P., both evidence and an express finding are

necessary to satisfy the Act’s requirements. In light of the 2012 amendment to section 5-750,

which added the requirement that the trial court make an express finding that the minor’s

commitment to the Department is the least restrictive alternative, the purpose of the Act could

not have been fulfilled where the trial court did not make the necessary finding—no matter how

much evidence the State accumulated in support. Accordingly, we reject the State’s contention.

¶ 57                          C. Respondent’s Remaining Contentions

¶ 58   In light of our determination that the trial court did not comply with the requirements of

section 5-750, we need not consider respondent’s remaining contentions about the State’s efforts

                                                   - 22 -
2016 IL App (2d) 140486-B


to locate less restrictive alternatives, the factors enumerated in section 5-750(1), and the court’s

reliance on respondent’s gang membership.

¶ 59                                   III. CONCLUSION

¶ 60   For the foregoing reasons, the sentence of the circuit court of De Kalb County is vacated

and the cause is remanded for resentencing fully in compliance with the Act and consistent with

this opinion.

¶ 61   Vacated and remanded with directions.




                                               - 23 -
