Opinion
No. 1-16-1258
10-03-2016
IN THE INTEREST OF: FABIAN O., a minor (The People of the State of Illinois, Petitioner-Appellee, v. Fabian O., a minor, Respondent-Appellant.)
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County, Juvenile Justice Division
No. 16 JD 673
Honorable Stuart F. Lubin, Judge Presiding.
JUSTICE HARRIS delivered the judgment of the court.
Presiding Justice Connors and Justice Simon concurred in the judgment.
ORDER
¶ 1 Held: We affirm the sentencing order entered by the trial court because respondent failed to properly preserve the claimed error for review by failing to object at the sentencing hearing.
¶ 2 Respondent was found guilty of two counts of aggravated unlawful use of a weapon and unlawful possession of a firearm. After being found guilty on those counts, the trial court sentenced respondent to the Department of Juvenile Justice. On appeal, respondent challenges that sentencing order. Specifically, respondent argues the trial court failed to review the required statutory factors and failed to determine whether incarceration with the Department of Juvenile Justice was the least restrictive alternative. However, respondent failed to preserve the issue by failing to object at the trial level and also failed to argue for review under the plain-error doctrine in his initial brief before this court. Based on these failures, respondent has waived review of the issue and the sentencing order of the trial court is affirmed.
¶ 3 JURISDICTION
¶ 4 The circuit court entered a final judgment on May 11, 2016. On the same day respondent filed his notice of appeal. Accordingly, this court has jurisdiction over this matter pursuant to Article VI, Section 6 of the Illinois Constitution, and Illinois Supreme Court Rules 660, 603, and 606. Ill. Const. 1970, art. VI, § 6; Ill. S. Ct. R. 660 (eff. Oct. 1, 2001); R. 603 (eff. Feb. 6, 2013); R. 606 (eff. Dec. 11, 2014).
¶ 5 BACKGROUND
¶ 6 On March 21, 2016, minor-respondent, Fabian O., while on juvenile probation for unlawful possession of a firearm (15 JD 3608) and possession of a controlled substance (15 JD 3608) was charged with two counts of aggravated unlawful use of a weapon in violation of 720 ILCS 5/24-1.6(a)(1) (West 2012), and one count of unlawful possession of a weapon in violation of 720 ILCS 5/24-3.1(a)(1) (West 2012). He was arraigned before the trial court and a finding of probable cause was entered. The State argued that there was an urgent and immediate necessity to detain respondent. The State noted that guilty findings for the two 2015 cases had been
entered on December 3, 2015, and at sentencing, "[r]espondent was placed on two years of probation, no gangs, no guns, no drugs" by Judge Lubin. The State argued that respondent be held in custody because this was respondent's second gun offense and he was "absolutely a danger to himself and the community." Defense counsel requested that respondent be placed on electronic monitoring because he was active in school, enrolled in community service, and had done his DNA testing. The trial court found respondent to be a threat to the community and ordered him held in custody. The case was continued to April 19, 2016 for trial.
¶ 7 At trial, Chicago Police Officer Ocampo testified that around 8:15 p.m. on March 19, 2016, he and his partner were on routine patrol in an unmarked Chicago Police vehicle approaching the intersection of Potomac and Karlov Avenues. He observed respondent standing on the southwest corner with at least four other individuals. As the officers' vehicle approached, respondent grabbed his waist band with both hands and began walking eastbound on Potomac Avenue. Then respondent looked at them, stopped, turned around and began walking westbound. Suspecting that respondent might be armed with a gun, Officer Ocampo exited the vehicle and identified himself as a police officer. Still holding his waistband with both hands, respondent ran towards the corner of Potomac and Karlov Avenues. Officer Ocampo ran after him and as respondent reached the corner, Officer Ocampo observed respondent pull a long barreled handgun from his waistband and throw it with his left hand. Respondent continued to run across the street but tripped and fell to the ground.
¶ 8 Officer Ocampo recovered the gun, "a six inch barrel 357 revolver," and ordered respondent to stay on the ground. Respondent screamed "you got me, you got me." He was placed under arrest and taken to the police station, where the officers learned that he did not have a valid Firearm Owner's Identification Card.
¶ 9 Respondent testified that on the evening of March 19, 2016, he was standing on the northeast corner of Karlov and Potomac Avenues. He saw the officers' car approaching from Karlov Avenue and started walking across the street to the other side of Potomac Avenue. The officers turned eastbound on Potomac Avenue, and Officer Ocampo jumped out of the car and ordered respondent to come to him. Respondent turned around and ran west on Potomac Avenue, past a group of people that were on the corner. Respondent testified that he ran from the police because he had a bottle of liquor in his pocket which he knew violated his probation. Furthermore, he was not suppose to be in that area. He acknowledged the liquor bottle was a pint sized bottle of Remy Martin, about six to eight inches tall, from which he had consumed one shot.
¶ 10 As he was running, respondent took out his phone to call his girlfriend and tell her that he was going to jail for violating his probation. He tripped and fell on his stomach, but the bottle of liquor, which was between his stomach and the sidewalk, did not break. Respondent testified that he did not have a weapon on him that night, and he only learned a weapon was out there when the officer said that a weapon had been recovered. The judge asked what happened to the bottle of liquor, and respondent testified that the officer opened up his jacket, pulled out the bottle and threw it, then asked respondent if he had been drinking.
¶ 11 Respondent was found guilty on all three counts. The court ordered an intensive probation services referral for respondent and noted it was respondent's second gun conviction in a short period of time. The court ordered respondent held in custody until sentencing.
¶ 12 At the sentencing hearing, two probation officers, Bravo and Palido, testified that Intensive Probation Services had rejected respondent because this was his second gun case, and they "usually reject" on a second gun case. Both probation officers recommended that
respondent be committed to the Department of Juvenile Justice (DOJJ). Both officers based this on the seriousness of the current offense and respondent's previous criminal behavior. Officer Bravo specifically noted that respondent had been on probation less than two months for his first weapons offense when he was arrested on the current weapons charge. The State also requested that respondent be sentenced to the DOJJ.
¶ 13 Defense counsel requested that the court place respondent on a three month bring-back to provide him with the opportunity to receive services to deal with the loss of his unborn child and to give him the opportunity to reach his educational goals. The trial court rejected this and committed respondent to the DOJJ.
¶ 14 Respondent timely filed his notice of appeal.
¶ 15 ANALYSIS
¶ 16 On appeal, respondent argues that the trial court erred in failing to comply with section 5-750 of the Juvenile Court Act (the Act). 705 ILCS 405/5-750(1) - (1.5) (West 2016). Specifically, respondent argues that the trial court failed to determine whether incarceration was the least restrictive alternative and it failed to review the required statutory factors. In response, the State argues that respondent has waived review of the claimed error because he failed to object at the trial court. The State continues that even if respondent had preserved his alleged error, this court should still affirm because the trial court complied with the Act when sentencing respondent to the DOJJ. In reply, respondent acknowledges he failed to object to the error he now appeals but argues we should address the issue under the plain-error doctrine.
¶ 17 We agree with the State that respondent's failure to object at the trial court results in the waiver of the issue on appeal. Recently, our supreme court explained that "a minor must object at trial to preserve a claimed error for review. However, minors are not required to file a
postadjudication motion." In re Samantha V., 234 Ill. 2d 359, 368 (2009) citing In Re W.C., 167 Ill. 2d 307, 327 (1995). Respondent acknowledges he did not object to the alleged error at trial but argues we should address the issue under the plain-error doctrine. In re M.W., 232 Ill. 2d 408, 430 (2009).
¶ 18 However, respondent only argued this in his reply brief and did not argue for review under the plain-error doctrine in his initial brief. It is well established under Illinois Supreme Court Rule 341(h)(7) that "points not argued are waived and shall not be raised in the reply brief, in oral argument, or on petition for rehearing." Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6, 2013). Accordingly, respondent has waived any argument related to plain-error by failing to raise it in his initial brief before this court.
¶ 19 Because respondent failed to object to the claimed error at the trial court level, he failed to properly preserve the issue on appeal. Furthermore, his failure to argue for the application of the plain-error doctrine in his initial brief precludes him from raising it in his reply brief. Accordingly, we do not address the merits of respondent's appeal and affirm the trial court's sentence entered below.
¶ 20 CONCLUSION
¶ 21 For the reasons stated above, we affirm the order of the trial court sentencing respondent to the custody of the Department of Juvenile Justice.
¶ 22 Affirmed.