APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
C. MASSEY, Judge, presiding.
MR. JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:
Defendant, Demetrius Woods, was convicted by a jury of the offenses of armed robbery, aggravated battery and aggravated kidnapping (Ill. Rev. Stat. 1973, ch. 38, pars. 18-2, 12-4, 10-2) and sentenced to concurrent terms of 10-30 years for armed robbery, 10-30 years for aggravated kidnapping and 3-10 years for aggravated battery. The offenses charged were committed 3 days before, and defendant was arrested 5 days after, his 17th birthday. Defendant appeals, contending: (1) because he was only 16 years old at the time of these offenses, he was denied his due process right to a meaningful juvenile transfer hearing when juvenile court proceedings did not begin until 27 months after his arrest; (2) this delay deprived him of his constitutional right to a speedy trial; (3) he was prosecuted on a void indictment; (4) the trial court erred by not suppressing defendant's statement; and (5) the trial court improperly sentenced defendant to the adult division of the Department of Corrections.
Because defendant does not contest the sufficiency of the evidence, only a brief account of the incident is necessary.
On November 18, 1974, Murray Hartstein, complainant, was driving north on Lake Shore Drive in Chicago when a spotlight flashed into his car and he heard the command, "pull over, police" two times. He obeyed and reached for his wallet in order to produce his driver's license. At this point, two men ran up to Hartstein. One grabbed his wallet and the other pointed a gun at him. Hartstein identified defendant as the person who took his wallet. Defendant then ordered Hartstein over to his car and handcuffed him. Defendant took the gun from the second assailant. He pushed Hartstein into the front passenger seat of Hartstein's vehicle and got into the back seat. Another man got into the driver's seat and they proceeded northbound. The third man followed in the assailant's car.
After driving for a short time, both cars stopped and defendant pulled Hartstein out of the car. Defendant and the driver of the assailant's car dragged Hartstein toward a lagoon. While handcuffed, Hartstein was beaten by both men, thrown to the ground and kicked on his body, face and left eye. Complainant incurred serious, persisting injuries. Defendant and the other men then fled in both cars.
Defendant's constitutional arguments necessitate a detailed account of the proceedings. The offenses took place on November 18, 1974. On November 21, 1974, defendant became 17 years old. Defendant was arrested on November 26, 1974. He was indicted by a grand jury in January of 1975. Numerous continuances and several pretrial motions followed. During these delays, defendant was out on bond. In February of 1977, William S. Clark, Jr., became defendant's new attorney. On February 14, 1977, he filed a motion to dismiss the indictment, alleging that defendant was 16 at the time of the offense, but was not being prosecuted under the Juvenile Court Act. This motion was denied. On February 24, 1977, the cause was transferred to juvenile court.
On March 16, 1977, the State filed a petition for adjudication of wardship in the interest of defendant concerning the offenses that were the basis of the grand jury indictment. On March 24, 1977, defendant filed a petition for discharge, alleging that defendant's constitutional right to a speedy trial had been denied. Defendant testified in conjunction with the petition that after he was arrested and taken to the police station he told the officers his correct date of birth. He further testified that he posted bond and made court appearances once or twice a month. He was employed and missed work due to these court appearances. On cross-examination, defendant testified that during the 27 months since his arrest he had been represented by counsel. On redirect examination, defendant stated that Mr. Clark had been representing him for two or three months. Clark was the attorney who first raised the issue of defendant's age. The juvenile court denied defendant's petition for discharge.
That same day (March 16, 1977) the State made a motion to permit prosecution of defendant under the criminal laws. (Ill. Rev. Stat. 1977, ch. 37, par. 702-7.) On May 5, 1977, a juvenile transfer hearing was held. The parties stipulated that there was probable cause the defendant committed the offenses charged and that defendant was indicted for those offenses in January 1975.
Probation Officer Moore testified concerning defendant's juvenile record: Defendant was referred to the juvenile court for burglary on October 29, 1970, and received six months supervision, which was satisfactorily terminated on April 29, 1972. On March 22, 1971, he was referred for battery and received six months probation which was unsatisfactorily terminated on October 19, 1971. On July 9, 1971, defendant was referred for armed robbery and battery. He entered an admission as to both offenses and was committed to the Department of Corrections, mittimus stayed. On December 31, 1971, he was referred for theft and two counts of battery and was committed "bodily" to the Department of Corrections. Defendant was paroled in November of 1974. The instant offenses and defendant's arrest also occurred in November 1974.
Moore further testified that defendant was presently living at home, employed at a fish market, and studied auto mechanics in the M.E.D.S. program. Moore stated that if defendant were 16 years old he would recommend his referral to U.D.I.S. (Unified Delinquency Intervention Service, a division of the Department of Corrections), but that due to defendant's age the juvenile court could provide no appropriate services.
The parties stipulated that Herman Smith, defendant's accomplice, was arrested for the same offenses and was not transferred from the juvenile court. *fn1
Diane Lopez, a social worker for the Criminal Defense Consortium, testified on defendant's behalf. She had a counseling relationship with Woods since April 5, 1977, which consisted of six interviews. She testified that defendant had realistic goals completing the G.E.D. (high school equivalency test) and an auto mechanics course and joining the army. With further counseling she believed he could attain these goals.
The juvenile court was also apprised by the State that while defendant was out on bond he had been convicted of an offense in adult court and was currently sentenced to probation.
The State's transfer motion was granted.
Defendant next filed several pretrial motions in the circuit court of Cook County, criminal division. These included a petition for discharge and a motion to suppress statements. In his petition for discharge, defendant again made allegations as to prejudice occasioned by delay in his treatment under the Juvenile Court Act. Both motions were denied.
Defendant's first argument is that the 27-month delay before his transfer to the juvenile court amounted to a denial of his due process right to a proper transfer hearing as required by Kent v. United States (1966), 383 U.S. 541, 16 L.Ed.2d 84, 86 S.Ct. 1045, and as codified in the Juvenile Court Act (Ill. Rev. Stat. 1977, ch. 37, par. 702-7). Defendant contends that at the time of his transfer it was impossible to obtain a meaningful hearing because he was already 19.
1 The State concedes that defendant's initial prosecution as an adult was improper. Under the Juvenile Court Act, no minor under 17 at the time of an alleged offense may be prosecuted in criminal court without the State first petitioning the juvenile court for his transfer. (Ill. Rev. Stat. 1977, ch. 37, par. 702-7; People v. Rahn (1974), 59 Ill.2d 302, 319 N.E.2d 787.) Upon the discovery of this error, the State undertook the correct procedure of transferring the cause to juvenile court.
2 The Illinois Constitution provides that all circuit courts> have original jurisdiction over all justiciable matters with two exceptions not here relevant. (Ill. Const. 1970, art. 6, § 9.) The juvenile court is a division of a single, unified circuit court (People v. Jiles (1969), 43 Ill.2d 145, 251 N.E.2d 529), and it is the circuit court as a whole which is vested with jurisdiction. (People v. Nichols (1978), 60 Ill. App.3d 919, 922, 377 N.E.2d 815.) Whether a person is tried in juvenile or criminal court is a matter of procedure. (People v. Shaw (1972), 3 Ill. App.3d 1096, 279 N.E.2d 729.) When defendant's age was raised as a defense to criminal prosecution, the proper procedure was to transfer the case from the criminal to the juvenile court. This was done here. See People v. Gooden (1977), 56 Ill. App.3d 408, 371 N.E.2d 1089.
3 We also note that a defendant may waive the right to be tried in the juvenile court by failing to raise age as an issue. (People v. Washington (1966), 81 Ill. App.2d 90, 225 N.E.2d 472; cf. In re Young (1979), 73 Ill. App.3d 629, 392 N.E.2d 229 (once allegation that respondent is under 17 years of age is made in petition for adjudication of wardship, it is incumbent on respondent to challenge authority of court to proceed against him as a minor or be deemed to have consented to juvenile court proceedings).) Neither the criminal trial court nor the prosecution noticed that the offense took place 3 days prior to defendant's 17th birthday. This fact only became apparent some 2 years after defendant's arrest, after 16 continuances agreed to by defendant or at his request. This issue was raised more than 2 months after William Clark became defendant's new attorney. Accordingly, we are of the opinion that defendant has waived any objection to the delayed filing of a delinquency petition and that the State acted correctly once defendant's age was affirmatively established. But even if there were no waiver, defendant's due process challenge that because he was 19 years old it was impossible for him to obtain a meaningful transfer hearing is without merit.
The evidence at the transfer hearing is stated above in detail. The parties stipulated that there was sufficient evidence for an indictment (probable cause). Probation Officer Moore testified concerning defendant's extensive juvenile court record, including felony adjudications. Indeed, defendant had been paroled from the Department of Corrections, juvenile division, the same month he committed the present offenses. Moore stated that his dispositional recommendation would be commitment to the Department of Corrections due, in part, to defendant's violation of parole. Moore was of the opinion that because of defendant's age and background the juvenile division could provide no services to him.
From the record it appears that the statutory prerequisites for transfer (Ill. Rev. Stat. 1977, ch. 37, par. 702-7(3)(a)(1-6)) would have been established by the State two years earlier, at the time defendant was 17. There was ample evidence to establish probable cause and the aggressive premeditated nature of the offenses. Complainant was seriously injured, robbed at gunpoint and kidnapped in his own car. Furthermore, defendant's record of juvenile offenses was extremely bad. Additionally, age would hardly serve as a mitigating factor because defendant was three days short of his 17th birthday on the date of the offense and age 17 serves as the upper limit for juvenile delinquency jurisdiction (Ill. Rev. Stat. 1977, ch. 37, par. 702-2). Defendant's only colorable argument is that at age 17 he might have found juvenile facilities appropriate for treatment and rehabilitation. We find this prospect unlikely since his juvenile record ...