concurring in part and dissenting in part:
I join fully in Justice Freeman’s partial concurrence and partial dissent. I write separately only to underscore the internal inconsistency in the majority’s resolution of the appeal in the case at bar.
The majority concludes that “dismissal is too harsh a sanction for a juvenile defendant’s failure to comply with Rule 604(d)” because “a juvenile does not have an adequate means for presenting his claims when his attorney fails to file a written motion pursuant to Rule 604(d).” 206 Ill. 2d at 605. Necessarily implicit in this conclusion is the determination that the Post-Conviction Hearing Act does not apply to juvenile proceedings. Otherwise there would be adequate means for a juvenile to present his claims when his attorney fails to file a written motion pursuant to Rule 604(d). See People v. Wilk, 124 Ill. 2d 93, 107-09 (1988) (when a defendant’s attorney fails to file a motion to withdraw defendant’s guilty plea in compliance with Rule 604(d), defendant may not pursue appellate review, “[t]he appropriate remedy for these defendants lies in our Post-Conviction Hearing Act”).
However, only a few paragraphs earlier, the majority states that it is leaving as an open question whether the Post-Conviction Hearing Act applies to juvenile proceedings. Quoting In re A.G., 195 Ill. 2d 313, 321-22 (2001), the majority notes that “ ‘this court has not reviewed holdings of the appellate court concluding that relief from such [juvenile court] proceedings is unavailable under the Post-Conviction Hearing Act’ ” and concludes that “dismissing a juvenile defendant’s appeal for failing to comply with the written motion requirements of Rule 604(d) may leave a juvenile without a remedy for his claims.” (Emphasis added.) See 206 Ill. 2d at 604.
If the question whether the Post-Conviction Hearing Act applies to juvenile proceedings is truly an open one, as the majority claims, the majority should not be deciding this appeal as it does, based on the assumption that the Post-Conviction Hearing Act does not apply to juvenile proceedings. As Justice Freeman points out, this court could just as readily assume that the Post-Conviction Hearing Act does apply to juvenile proceedings. In so doing, however, the appeal in the case before us would necessarily be decided differently.
It should be apparent that resolution of the appeal in the case at bar is dependent on deciding whether the Post-Conviction Hearing Act applies to juvenile proceedings. For this reason, the court has no discretion to avoid addressing the issue. The issue needs to be confronted head-on.
Like Justice Freeman, I concur in the majority’s holding that a defendant’s failure to comply with Rule 604(d) does not deprive an appellate court of jurisdiction to consider the defendant’s appeal. However, because the majority assumes, without deciding, that the Post-Conviction Hearing Act does not apply to juvenile proceedings in reaching its conclusion that “dismissal is too harsh a sanction for a juvenile defendant’s failure to comply with Rule 604(d)” (206 Ill. 2d at 605), I, like Justice Freeman, cannot join fully in the majority opinion.
JUSTICES FREEMAN and RARICK join in this partial concurrence and partial dissent.