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People v. Pedrosa

ILLINOIS APPELLATE COURT — FIRST DISTRICT (5TH DIVISION) JUDGMENTS AFFIRMED.


OPINION FILED FEBRUARY 13, 1976.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

EMANUEL PEDROSA, DEFENDANT-APPELLANT.

APPEAL from the Circuit Court of Cook County; the Hon. EARL E. STRAYHORN, Judge, presiding.

MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT:

This case originated with the filing of a petition for an adjudication of wardship in the Juvenile Division of the circuit court alleging that defendant was a delinquent by virtue of having committed the offenses of murder and aggravated battery. The State moved to transfer his case so that he could be tried in an adult court pursuant to section 2-7 of the Juvenile Court Act (Ill. Rev. Stat. 1971, ch. 37, par. 702-1). *fn1 Following a hearing the court made no objection to the petition for transfer and dismissed the juvenile proceedings.

Subsequently defendant was indicted for two counts of murder and three counts of aggravated battery. Prior to trial two counts of aggravated battery were stricken with leave to reinstate. Defendant was tried by the court sitting without a jury and found guilty on all three remaining counts. He received concurrent sentences of 14 years to 14 years and one day for each murder and one to five years for the aggravated battery. The facts were stipulated to at trial: On October 8, 1972, defendant and two companions, all armed with shotguns, stepped from a gangway in a side street on the near northwest side of Chicago and fired repeatedly into a group of five young men who were walking down the sidewalk. Two of the men died as a result of wounds they received during the barrage. An eyewitness did not report seeing any provocative acts by the victims prior to the shooting. The incident was apparently the product of a youth gang rivalry. Defendant was 16 years old at the time of the shooting.

On appeal defendant requests that the convictions be overturned, the indictments dismissed and the cause remanded to the Juvenile Division for further proceedings. He contends that he is entitled to such relief due to the failure of section 2-7 of the 1971 statute to require a judicial hearing for the determination of whether a case should be transferred out of the Juvenile Division. *fn2 This contention is grounded on the United States Supreme Court's holding in Kent v. United States, 383 U.S. 541, 16 L.Ed.2d 84, 86 S.Ct. 1045, in which a youth challenged the transfer procedures in use in the District of Columbia. The court, construing the statutes of that jurisdiction, held that before the juvenile court could waive its exclusive jurisdiction, a due process hearing was required. At the hearing the juvenile would be afforded the assistance of counsel who would be given access to relevant social service records and, for purposes of maintaining the possibility of effective review, any waiver order would have to be accompanied by a statement of reasons by the judge.

A long line of Illinois cases denied the applicability of Kent to our procedures under section 2-7. (See, e.g., People v. Handley, 51 Ill.2d 229, 282 N.E.2d 131; People v. Reese, 54 Ill.2d 51, 294 N.E.2d 288; People v. Sprinkle, 56 Ill.2d 257, 307 N.E.2d 161.) These holdings were grounded on the proposition that in this State, unlike the District of Columbia, discretion to transfer a youth from the juvenile division to a circuit court for criminal prosecution was vested in the State's Attorney.

• 1 Recently, however, in People v. Rahn, 59 Ill.2d 302, 319 N.E.2d 787, our Supreme Court reassessed its position and held that the clear and unambiguous mandate of section 2-7 is that the juvenile court, not the State's Attorney, will make the final determination of whether to transfer a minor for criminal prosecution. (See People v. Boclaire, 33 Ill. App.3d 534, 337 N.E.2d 728.) In the instant case the State's Attorney requested a transfer to the criminal court. After a full hearing the court stated it had no objections and dismissed the juvenile proceedings. Thus the determination was made by the judge and not the State's Attorney. *fn3

Defendant has argued that even accepting the fact that the determination is a judicial one, and thus that the statute implicitly envisioned a hearing, the hearing afforded him failed to meet the Kent standards and was, further, constitutionally suspect due to the absence of any guidelines in section 2-7 governing the scope of judicial discretion in these matters.

• 2 Defendant is, we presume, satisfied with section 2-7 as it currently reads which does list certain criteria to be taken into account at such hearings. These criteria include:

"(1) whether there is sufficient evidence upon which a grand jury may be expected to return an indictment; (2) whether there is evidence that the alleged offense was committed in an aggressive and premeditated manner; (3) the age of the minor; (4) the previous history of the minor; (5) whether there are facilities particularly available to the Juvenile Court for the treatment and rehabilitation of the minor; and (6) whether the best interest of the minor and the security of the public may require that the minor continue in custody or under supervision for a period extending beyond his minority." (Ill. Rev. Stat. 1973, ch. 37, par. 702-7(3).)

Focusing on the hearing afforded defendant, it is clear that all protections secured by the Kent decision and by section 7-2 as amended were given him. He was ably represented by counsel. Witnesses were called to testify regarding the incident for which he was arrested. The court was informed of defendant's age and heard testimony regarding his background. Counsel developed the issue of the possibility that the juvenile process would afford him a superior opportunity for rehabilitation. Moreover, the record developed at that hearing is clearly sufficient to show a substantial compliance with the Kent requirements. In light of the foregoing, we do not believe that any purpose would be served in remanding defendant's case to the juvenile division.

• 3 Lastly, defendant contends that section 7-2 improperly grants appellate powers to the chief judge of the circuit to review decisions of another judge of the same court. In the instant case the juvenile court judge did not object to the removal of the action, and the case was not referred to the chief. Thus, defendant lacks standing to challenge the constitutionality of this provision as he has not been aggrieved by the provision which he claims is unconstitutional. People v. Bombacino, 51 Ill.2d 17, 280 N.E.2d 697.

For the foregoing reasons we affirm the judgments entered below.

Affirmed.

LORENZ, P.J., and SULLIVAN, J., concur.


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