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In Re Lang





APPEAL from the Circuit Court of Lake County; the Hon. WILLIAM D. BLOCK and the Hon. WARREN G. FOX, Judges, presiding.


This is an appeal from the order of the juvenile court of Lake County committing the respondent to the Department of Corrections.

The respondent presents four issues. (A) Did the State fail to prove that the defendant was under the age of 17 years at the time of the commission of the offenses? (B) Did the court base its decision to commit the respondent to the Department of Corrections on valid statutory grounds? (C) Did the court err in taking judicial notice of the prior arrests of the respondent at the dispositional hearing? (D) Was the respondent denied due process under the Juvenile Court Act?

The respondent, along with several adults, was involved in the armed robbery of a filling station attendant. In the course of the armed robbery the attendant was beaten unconscious with a gun. One of the respondent's adult accomplices was sentenced to 3-9 years for armed robbery. A detention hearing for the minor herein was held on August 23, 1976. His mother was present, and attorney Cummins was appointed to represent her. A public defender represented the minor. An adjudicatory hearing was subsequently held on December 10, 1976, at which time the minor was found to be a delinquent. Present at that hearing was the mother, the guardian ad litem for the minor, attorney Cummins, and the public defender representing the minor. The matter was continued for disposition to December 16, 1976. Numerous continuances were had thereafter delaying the dispositional hearing until February 2, 1977. The minor was not present on February 2. He was arrested upon a warrant and the court proceeded with the dispositional hearing on February 3, 1977, at which time the minor was committed to the Department of Corrections. At this hearing the minor, attorney Cummins, the public defender representing the minor, the probation officers and police juvenile officer John McKeever were present.

• 1 As we have indicated, the first argument presented is that the State failed to prove the respondent was under the age of 17 years of age at the time of the commission of the offense. This issue was recently laid to rest by the supreme court in In re Greene (1979), 76 Ill.2d 204, 218, 390 N.E.2d 884, 890, where the court stated:

"In sum, while it is advisable for the State to establish a respondent's age at the adjudicatory stage to avoid any possibility of an improper application of juvenile procedures, age is not an element of delinquency but is a factor which triggers the application of the Juvenile Court Act to young offenders. If the respondent does not challenge the authority of the court to proceed under the provisions of the Act, the respondent has consented to the court's authority and has waived any objection to his treatment as a juvenile."

In the case before us, of course, no such challenge was raised in the trial court. We therefore find this argument to be without merit. *fn1

• 2, 3 The second argument presented is that the court improperly considered various prior arrests of the juvenile, to-wit, a burglary in Niles, a burglary in Des Plaines, five burglaries in the Winnetka area, the theft of a bicycle in Glenview and the flight of the respondent to Louisiana in a stolen car after the instant offense. As support for this argument, the respondent has cited In re Dependency of Rosmis (1960), 26 Ill. App.2d 226, 167 N.E.2d 826. This case is inapposite to the one before us as it was rendered prior to the enactment of the present Juvenile Court Act (Ill. Rev. Stat. 1977, ch. 37, par. 701-1 et seq.). We find that the consideration by the court here of the prior record of the juvenile was entirely proper. This is because section 5-(1) of the Act provides, in part, that:

"All evidence helpful in determining this question, including oral and written reports, may be admitted and may be relied upon to the extent of its probative value, even though not competent for the purposes of the adjudicatory hearing." (Ill. Rev. Stat. 1977, ch. 37, par. 705-1(1).)

The respondent also raises the issue that he was not allowed to cross-examine the juvenile officer, McKeever, who prepared the list of the respondent's prior arrests. We find no merit to this argument as McKeever testified at the dispositional hearing and the respondent apparently chose not to cross-examine him as to the evidence now complained of. We also note that this argument is improper since at no time did the respondent's attorney object to that evidence. The issue of prior arrests was also presented in In re Sneed (1976), 38 Ill. App.3d 1041, 350 N.E.2d 122. In Sneed the trial court considered station adjustments and curfew violations. The appellate court therein held that section 5-1(1) of the Juvenile Court Act specifically provides that at the dispositional hearing the court may consider the same. The court also found in that case that no objection was made to the introduction of this evidence.

Likewise, in In re Blakes (1972), 4 Ill. App.3d 567, 572, 281 N.E.2d 454, 457, the trial court considered 42 complaints of a criminal nature presented to it as part of the history of the minor. Exception was taken to this on appeal and the appellate court stated:

"It must also be remembered that there was no objection by appellant's lawyer. `The statute gives the juvenile court judge a great deal of discretion regarding the conduct of a dispositional hearing. This is as it should be. Under the stated facts of this case, we can find no evidence that the lower court abused its discretion to any degree even approaching prejudicial, reversible error.' [Citation.]"

The court also observed in Blakes that the respondent's arguments advanced therein sought to equate a juvenile delinquent's dispositional hearing with a criminal trial, and quoted from the United States Supreme Court's decision in McKeiver v. Pennsylvania (1971), 403 U.S. 528, 551, 29 L.Ed.2d 647, 664, 91 S.Ct. 1976, which stated:

"If the formalities of the criminal adjudicative process are to be superimposed upon the juvenile court system, there is little need for its separate existence. Perhaps that ultimate disillusionment will come one day, but ...

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