In re S.R.H.

JUSTICE SIMON,

dissenting:

I do not dispute that juvenile delinquency proceedings are different from criminal prosecutions, but I am unable to conclude for that reason, as the majority does, that juveniles are entitled to any less protection in assessing the sufficiency of a charge of criminal behavior against them than an adult in identical circumstances would enjoy. I would affirm the decision of the appellate court.

It is true, as the majority states, that proceedings under the Juvenile Court Act are not generally viewed as being of a criminal nature, and that this has certain implications regarding the safeguards that must be afforded defendants in various situations. Thus, for example, this court has held that the statutory right to a speedy trial (People v. Woodruff (1981), 88 Ill. 2d 10), a supreme court rule relating to acceptance of guilty pleas (In re Beasley (1977), 66 Ill. 2d 385, cert. denied (1978), 434 U.S. 1016, 54 L. Ed. 2d 761, 98 S. Ct. 734), and common law hearsay rules (People v. Taylor (1979), 76 Ill. 2d 289) did not apply in juvenile proceedings. As far as I am aware, however, it was never the rule that anything goes simply because the defendant is a juvenile. Indeed, this court has recognized that since orders of supervision (In re R.R. (1982), 92 Ill. 2d 423, 429) and probation (e.g., In re Sneed (1978), 72 Ill. 2d 326, 331-34) may result in a loss of liberty just as significant as if the defendant had been convicted as a criminal, various provisions in the Juvenile Court Act which enhance the protections accorded to minors for whom these orders are sought should be broadly construed to effect their purpose. Moreover, the court did not refuse to extend the safeguards in Woodruff, Taylor or Beasley to minors without discussing at some length why the safeguard was not essential from the standpoint of due process and was not intended by the legislature to apply to the particular juvenile proceeding at issue. In Taylor, the decision did not depend on the noncriminal nature of juvenile proceedings generally, but the court observed that the hearsay evidence in question possessed facial indicia of reliability and could therefore be admitted in a juvenile transfer hearing, in much the same fashion as hearsay evidence is admitted in sentencing hearings in criminal cases once guilt has been determined. (E.g., People v. La Pointe (1981), 88 Ill. 2d 482, 494-99.) In Woodruff and Beasley there was nothing to indicate that the statute or court rule in question was intended to apply to anyone other than a criminal defendant, for whose sole benefit they were promulgated.

The Juvenile Court Act is prefaced by the provision that “[t]he procedural rights assured to the minor shall be the rights of adults unless specifically precluded by laws which enhance the protection of such minors.” (Ill. Rev. Stat. 1979, ch. 37, par. 701—2(3Xa).) In section 2—2, the Act defines as delinquent “any minor who prior to his 17th birthday has violated or attempted to violate *** any federal or state law or municipal ordinance” (Ill. Rev. Stat. 1979, ch. 37, par. 702—2); in another section it requires that the delinquency petition set forth “facts sufficient to bring the minor under Section 2—1 [of the Act]” (emphasis added) (Ill. Rev. Stat. 1979, ch. 37, par. 704—1(2)(a)). Section 2—1 (Ill. Rev. Stat. 1979, ch. 37, par. 702—1) is entitled “Jurisdictional Facts” and refers to the statutory definition of a delinquent minor contained in section 2—2, which is quoted above. That, in my judgment, is a clear indication that the legislature intended to require notice in the charging instrument of all of the essentials of the violation on which the delinquency charge is founded. Although there is no direct statement in the Act that this was meant to include the “nature and elements” of the violation, as is required in the context of a criminal prosecution (emphasis added) (Ill. Rev. Stat. 1979, ch. 38, par. 111—3(a)(3)), neither is there anything in the Act which “specifically preclude[]” this interpretation, as section 1—2(3)(a) requires, and I find it difficult to understand how one can communicate the essentials of a charge without at least setting forth the essential elements which constitute the violation alleged.

The gist of burglary is not mere entry, regardless of intent; it is unauthorized entry with a felonious intent, or with the intent to commit a theft. Mere entry with felonious intent is not a violation of any law or ordinance that I know of. A charging instrument in a criminal case which charged only this would be facially defective and would have to be dismissed, at least if challenged in the trial court (People v. Lutz (1978), 73 Ill. 2d 204; People v. Abrams (1971), 48 Ill. 2d 446; see People v. Pujoue (1975), 61 Ill. 2d 335). I see no warrant for treating the minor in this case as if he had first raised the sufficiency of the delinquency petition on appeal and applying the lesser “actual prejudice” standard applicable in such cases (People v. Gilmore (1976), 63 Ill. 2d 23; People v. Pujoue (1975), 61 Ill. 2d 335) when in fact he raised it in the delinquency hearing. As I have mentioned, I find nothing in the Juvenile Court Act which specifically requires such lesser scrutiny, and without such a specific provision this court is not at liberty, under the Act itself (Ill. Rev. Stat. 1979, ch. 37, par. 701—2(3)(a)), to so treat a minor where an adult guilty of identical conduct and whose strategy at trial was the same would receive the full protection of the law as set forth in Lutz and Abrams. Nor am I impressed by appellate court statements from time to time that the element “without authority,” when missing from a charge of burglary, can be inferred without prejudice to the defendant because everybody knows lack of authority is an element of burglary. (People ex rel. McLain v. Housewright (1973), 9 Ill. App. 3d 803; see People v. Pettus (1980), 84 Ill. App. 3d 390, 393-94 (dictum); In re Whittenburg (1973), 16 Ill. App. 3d 224 (aggravated-battery charge upheld).) The holding of Lutz and Abrams is that, for purposes of challenges brought in the trial court, prejudice from such omissions is conclusively presumed.

Adjudications of delinquency may not be criminal convictions, but, as illustrated by this case, they often lead to incarceration. In addition, burglary is a serious charge, and a finding of guilt is likely to have severe consequences apart from incarceration for as long as it remains on the juvenile’s record. Just as we do not allow adults to be deprived of their liberty without a full recitation in the charging instrument of the elements of the crime alleged, neither should we allow juveniles to face detention in a State facility and a record of delinquency based on a burglary offense without a similar recitation when they are charged with serious antisocial conduct. The Juvenile Court Act says nothing to the contrary, and in fact appears to require this very recitation. I fail to see the justification for permitting the State to omit essential information from delinquency petitions more or less as it pleases when it would take so little effort to include the elements of the violation as the law requires they appear in an indictment or information.