No. 3--95-0835
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IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
IN THE INTEREST OF V.O., ) Appeal from the Circuit
A Minor. ) Court of the 10th
) Judicial Circuit, Peoria
PEOPLE OF THE STATE OF ILLINOIS, ) County, Illinois
)
Petitioner-Appellee, )
) No. 93-J-94
v. )
)
V.O., ) Honorable
) Stewart Borden
Respondent-Appellant. ) Judge, Presiding
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OPINION
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V.O., a minor, appeals from an order of the circuit court of
Peoria County which adjudicated him delinquent and committed him
to the juvenile division of the Department of Corrections (DOC)
for a term not to exceed his 19th birthday. V.O. contends on
appeal that the court erred in denying his request for a
continuance to be evaluated by the Department of Alcohol and
Substance Abuse (DASA) for potential acceptance into treatment,
and in relying on its personal knowledge of the DOC's facility
when committing him. For the following reasons, we affirm.
FACTS
A September 1995 juvenile delinquency petition alleged that
V.O. committed the offense of arson (720 ILCS 5/20-1(a) (West
1994)) in that by means of fire he knowingly damaged a building
in Peoria, Illinois.
At an October 1995 adjudicatory hearing, evidence
established that on September 25, 1995, a 14 year old M.W. and 15
year old V.O. entered an abandoned, dilapidated building where
they set several small fires to plastic found around some of the
windows. When flames dripped to the ground, the boys stomped
them out. The boys left the building and returned approximately
10 to 15 minutes later. V.O. testified that when he and M.W.
returned to the building, he did not intend to start a fire.
According to V.O., he stood in the doorway while M.W. re-
entered the building and started the fire which resulted in
damage. M.W. testified, however, that it was V.O. who started
the fire which resulted in damage. Both boys ran from the scene
of the fire, and neither of them made an effort to put the fire
out or to contact the authorities.
The court found that V.O. was not credible and determined
that he started the fire which damaged the building. The court
set a dispositional hearing for November 16, 1995, and granted
V.O.'s request that he undergo a drug and alcohol evaluation.
On the day of V.O.'s dispositional hearing, his counsel
requested that the court delay the proceedings due to the fact
that the drug and alcohol evaluation had not been performed and
TASC had not yet evaluated V.O. Counsel argued that this
evaluation was essential in order to provide the court with
information concerning residential treatment placement. The
court denied the request, finding that V.O., by his own
admission, had a serious drug and alcohol problem, and noting
that it was aware of the available facilities for such treatment.
A dispositional social history report filed November 16,
1995, revealed that V.O. had abused drugs and alcohol since the
age of 12, and that his usage progressed from monthly to weekly
to daily. V.O. had never been treated for his addiction, and his
adolescent years were characterized as "the point of explosive
deviant behavior." Counseling efforts at the Human Service
Center and the Children's Home Association failed, and V.O. had a
history of prior delinquency. Specifically, in April 1993, V.O.
was adjudicated delinquent for the offense of aggravated assault
and was placed on probation for one year. In August 1994, V.O.
was adjudicated delinquent for the offense of unlawful possession
of firearms and was committed to the juvenile division of the DOC
for a period not to exceed 364 days.
This report also contained a recommendation by the director
of the juvenile court services (the director). The director
recommended that V.O. be committed to the juvenile division of
the DOC, with a review after 120 days served. Further, that if
after such review, the DOC recommends that V.O. return to the
community, then V.O. should be placed on probation for 2 years
and enrolled in appropriate juvenile court services' programs.
A juvenile detention center report was also filed and
indicated that V.O.'s interaction with the staff had been one of
"total cooperation." It noted that V.O. accepted authority
figures, displayed a positive demeanor and attitude, and was
considered a normal security risk.
V.O. submitted a letter to the court that acknowledged his
alcohol and drug addiction, and requested an evaluation for
potential placement and treatment in a rehabilitation center.
After finding that residential treatment in an unlocked
facility would not be appropriate, due to V.O.'s prior record and
the seriousness of his present offense, the court committed V.O.
to the juvenile division of the DOC in St. Charles, Illinois, not
to exceed his 19th birthday. The court found commitment
necessary to insure the protection of the public from the
consequences of V.O.'s criminal activity. The judge indicated
that he had visited the DOC's facility in St. Charles and
observed that it had a dedicated staff and a facility to treat
chemical dependency. V.O. appeals the court's commitment order.
I.
V.O. contends that the court erred in failing to delay his
dispositional hearing until DASA had evaluated him for potential
acceptance into treatment. In support of his contention, V.O.
relies upon the Juvenile Court Act (the Act), which permits as a
dispositional alternative admission of a delinquent minor for
treatment with DASA "where authorized under the Alcohol and Other
Drug Abuse and Dependency Act [20 ILCS 301/40-20 (West 1994)]."
705 ILCS 405/5-23(a)(3) (West 1994).
However, section 40-20 cited in the Act and relied on by
V.O. was repealed by Pub. Act. 89-202, eff. July 21, 1995, two
months prior to the filing of V.O.'s delinquency petition, three
months prior to his adjudication of delinquency, and four months
prior to his DOC commitment. At the time of V.O.'s dispositional
hearing, there was no legislation enacted to replace section 40-
20. Therefore, we find that the court neither violated the Act,
nor erred by failing to delay V.O.'s dispositional hearing until
such an evaluation was conducted. Further, the record indicates
that the court noted that V.O. had been detained for 53 days, and
acknowledged that to prolong this matter would not "serve any
useful purpose, either to the minor or for interests of justice
*** [stating] it's time to come to a disposition and address the
problem that's before us."
The disposition of a juvenile rests within the sound
discretion of the trial court and will not be reversed unless it
is contrary to the manifest weight of the evidence, i. e. when an
opposite conclusion is clearly apparent. In re A.D., 228 Ill.
App. 3d 272, 591 N.E.2d 949 (3d Dist. 1992).
In turning to the record, the following facts support the
court's commitment of V.O. to the juvenile division of the DOC:
(1) parental attempts to help V.O., including counseling efforts,
failed; (2) the dispositional social history report recommended
DOC commitment; (3) V.O. had a history of prior delinquency; (4)
V.O.'s current charge of arson was a serious offense; and (5) the
court made a specific finding that V.O. was not credible and that
he started the fire which caused damage to the building.
Further, the court properly considered that V.O.'s
commitment was necessary to insure the protection of the public
from the consequences of his criminal activity. In re A.D., 228
Ill. App. 3d at 276 (in entering a commitment order a court may
properly consider the protection of the public.)
Under these circumstances, we find that the court's
commitment of V.O. to the juvenile division of the DOC was not
against the manifest weight of the evidence.
Lastly, V.O. asserts that the court violated his right to
due process by considering its personal knowledge of the facility
in St. Charles. However, despite the fact that V.O. had been
previously committed to St. Charles, and was familiar with the
facility, he failed to challenge the court's observations as
being inaccurate. Our supreme court in People v. Tye, 141 Ill.
2d 1 (1990), citing Barclay v. Florida, 463 U.S. 939, 970-71, 77
L. Ed. 2d 1134, 1157, 103 S. Ct. 3418, 3435-36 (1983), noted that
the sentencing process assumes the court will exercise judgment
in light of its background, experiences, and values. Therefore,
we find that the court did not violate V.O.'s right to due
process by considering its personal knowledge of the facility in
St. Charles.
CONCLUSION
In light of the foregoing, we are unable to say that an
opposite conclusion than that reached by the circuit court is
clearly apparent. Therefore, we find that the circuit court's
order committing V.O. to the juvenile division of the DOC was not
against the manifest weight of the evidence, and we affirm that
order.
Affirmed.
MICHELA, J., with McCUSKEY and HOMER, J.J., concurring.