APPEAL from the Circuit Court of Macon County; the Hon. RODNEY
A. SCOTT, Judge, presiding.
MR. PRESIDING JUSTICE CRAVEN DELIVERED THE OPINION OF THE COURT:
The defendant appeals from convictions entered upon his plea of guilty to one charge of forgery and two charges of burglary. Three concurrent sentences of not less than two years nor more than six years were imposed.
The offenses here involved were committed in October and December 1971. The forgery charge relates to forging the signature of the maker on a $5 check and the two burglary charges relate (1) to taking two radios, a record player and $140 in cash from a business establishment known as Colonel's Auction, and (2) taking of a television set, a record player, a guitar, and jewelry box from a private residence.
The defendant was born in August 1954, thus, he was 17 years old at the time of the offenses and at the time of all the proceedings here under review. He urges that the treatment of a 17-year-old male as an adult is violative of his constitutional right to equal protection of the law inasmuch as 17-year-old females at the time of these proceedings would have been subject to the provisions of the Juvenile Court Act.
The pleas of guilty in this case originated through plea bargaining after the defendant had been in jail for some 98 days in lieu of bail. The agreement reached by negotiation was one to the effect that the defendant would enter pleas of guilty and ask for probation. The matter would be referred to the probation officer and the State's Attorney agreed to concur in the recommendation of the probation officer with reference to the issue of probation. In the event that probation was denied, then the recommendation of the People would be the imposition of three concurrent sentences, each with a minimum of two years and the maximum of six years.
The report of the probation officer was filed in the circuit court in May of 1972 and that report recommended the denial of the petition for probation. At the hearing on the petition, the State's Attorney concurred in that recommendation and urged denial. The defendant and his father, William Ellis, testified in support of the petition for probation.
At the hearing, it was developed that the defendant had been involved at an earlier date in the theft of some bicycles and had been on probation as a result of a delinquency proceeding in Moultrie County and had a curfew violation in May of 1971. The foregoing was his prior criminal record. The evidence was that the defendant was one of thirteen children, nine of whom were still living at home with the parents. The father was then unemployed and had been for several months. The family income was unemployment compensation and income received from the Aid to Dependent Children program. The mother is described as in poor health suffering from diabetes and an inactive stage of tuberculosis and had recently been hospitalized for four months. Three other children of this family had been involved either in criminal or delinquency proceedings in Macon County. In denying probation, the court observed to the father that:
"Mr. Ellis, in passing on these petitions we're always looking for something favorable on which we think maybe probation will work, in that we hope that we can grant probation and it will be successful.
One of the things we look for us, what is his home life, how much help will he get from his parents, and here we couldn't have a more miserable picture than what this report shows. As far as father you appear to be a complete failure. You haven't worked all winter, you're living off of welfare. When asked about ADC, you say some, like it is pittance and the report shows you're drawing a lot of money, $338.00 ADC and two hundred and some on compensation.
You haven't had control of this boy for years, have you? In that this shows back in '69 he was kicked out of Mt. Zion school and he was only 14 then.
You can't manage your family, can you, when the report shows that his older brother has been to the penitentiary and his younger brothers are in trouble now?
If he were returned to your home, you wouldn't be the slightest bit of good influence on him, would you?"
Section 702-2, ch. 37 of the Juvenile Court Act (Ill. Rev. Stat. 1971, ch. 37, par. 702-2), defines a delinquent minor as "any boy who prior to his 17th birthday or girl who prior to her 18th birthday has violated or attempted to violate * * * any * * * state law * * *". Section 702-7, ch. 37, of the Juvenile Court Act (Ill. Rev. Stat. 1971, ch. 37, par. 702-7), provides that unless the procedure set out in the Juvenile Court Act was followed: "No boy who was under 17 years of age or girl who was under 18 years of age at the time of the alleged offense may be prosecuted under the criminal laws of this state * * *". (Emphasis supplied.) The defendant thus argues that a female defendant under the exact same facts and circumstances as those existing in his case would be afforded the protection of at least having the Juvenile Court Act procedure followed prior to prosecution as an adult felon. The different classification by age because of sex is said to be violative of equal protection of the laws and to be specifically prohibited by section 18 of article 1 of the 1970 Illinois Constitution. This constitution became effective on July 1, 1971 and is fully applicable here. That section reads:
"The equal protection of the laws shall not be denied or abridged on account of sex by the State or its units of local government and school ...