APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT
546 N.E.2d 1127, 190 Ill. App. 3d 748, 138 Ill. Dec. 72 1989.IL.1754
Appeal from the Circuit Court of St. Clair County; the Hon. William B. Starnes, Judge, presiding.
JUSTICE HARRISON delivered the opinion of the court. RARICK and GOLDENHERSH, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HARRISON
On November 25, 1986, Sergeant Lawrence Brewer of the East St. Louis police department filed a petition with the circuit court of St. Clair County pursuant to section 4-1 of the Juvenile Court Act (the Act) (Ill. Rev. Stat. 1985, ch. 37, par. 704-1), alleging that the defendant, Jamel O. Beck, born August 4, 1972, was delinquent and seeking to have him declared a ward of the court. The petition alleged that defendant, on November 22, 1986, committed six attempted murders, which are violations of section 8-4(a) of the Criminal Code of 1961 (the Code) (Ill. Rev. Stat. 1985, ch. 38, par. 8-4(a)), six aggravated batteries in violation of section 12-4(a) of the Code (Ill. Rev. Stat. 1985, ch. 38, par. 12-4(a)), and a home invasion in violation of section 12-11 of the Code (Ill. Rev. Stat. 1985, ch. 38, par. 12-11). The State subsequently petitioned under section 2-7(3) of the Act (Ill. Rev. Stat. 1985, ch. 37, par. 702-7(3)) to have the defendant prosecuted under the criminal laws of Illinois as an adult. After a transfer hearing on the State's motion on January 7 and 8, 1987, the court on February 6, 1987, ordered the defendant's case transferred for prosecution under the criminal laws.
On February 13, 1987, a grand jury indicted the defendant on six counts of armed violence in violation of section 33A-2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 33A-2), six counts of attempted murder, six counts of aggravated battery, and one count of home invasion. Subsequent to the indictment, plea negotiations commenced, and the defendant agreed to plead guilty to six counts each of armed violence and aggravated battery in return for the dismissal of the charges of attempted murder and home invasion. On June 10, 1987, the trial court accepted the pleas of guilty to the six armed violence and aggravated battery counts and entered judgments of conviction on those 12 counts. On July 27, 1987, the court sentenced the defendant to six consecutive terms of 20 years' imprisonment for the six armed violence convictions, for a total of 120 years' imprisonment. The court declined to sentence the defendant on the six aggravated battery convictions. The defendant appeals. We affirm in part and vacate in part.
On this appeal the defendant does not contest the charges or the evidence against him and raises no issue of reasonable doubt. Consequently, only those facts necessary to make clear the issues raised on this appeal will be found in this opinion. In his brief, the defendant contends that: (1) we must grant him a new transfer hearing because the lower court failed to comply with section 1-20 of the Act (Ill. Rev. Stat. 1985, ch. 37, par. 701-20), since at the defendant's first appearance before the court, the court failed to explain the rights of the parties respondent as required by sections 1-20(1) and 1-20(3) of the Act; (2) we must grant the defendant a new transfer hearing because in applying section 2-7(3)(a) of the Act (Ill. Rev. Stat. 1985, ch. 37, par. 702-7(3)(a)), the court abused its discretion when it failed to properly consider and weigh the relevant statutory factors; (3) we must modify the defendant's consecutive sentences because section 5-8-4(c)(2) of the Unified Code of Corrections (Ill. Rev. Stat. 1985, ch. 38, par. 1005-8-4(c)(2)) excludes a juvenile from receiving consecutive sentences; (4) we must modify the defendant's consecutive sentences because, considering defendant's age and circumstances, incarceration totaling 120 years is not required to protect the public from further criminal conduct by the defendant and poorly serves the defendant's rehabilitative potential; and (5) we must vacate the defendant's convictions for aggravated battery because aggravated battery is an included offense of armed violence.
The defendant initially contends that we must grant him a new transfer hearing because the lower court failed to comply with section 1-20 of the Act (Ill. Rev. Stat. 1985, ch. 37, par. 701-20), since at the defendant's first appearance before the court, the court failed to explain the rights of the parties respondent as required by sections 1- 20(1) and 1-20(3) of the Act. He alleges that the lower court failed to fulfil its mandatory duty to fully inform the defendant's parents that they had the right to have counsel appointed to represent them if they were financially unable to employ counsel; to inform them of the nature of the proceedings; and to inform them that they had the right to be present, be heard, present evidence material to the proceedings, cross-examine witnesses, and examine pertinent court files and records. The defendant failed to raise this issue before the lower court but requests that the review court consider this issue under the plain error provision of Illinois Supreme Court Rule 615(a) (107 Ill. 2d R. 615(a)).
Section 1 -- 20(1) of the Act provides that
"the minor who is the subject of the proceeding and his parents, guardian, legal custodian or responsible relative who are parties respondent have the right to be present, to be heard, to present evidence material to the proceedings, to cross-examine witnesses, to examine pertinent court files and records and also, although proceedings under this Act are not intended to be adversary in character, the right to be represented by counsel. At the request of any party financially unable to employ counsel, the court shall appoint the Public Defender or such other counsel as the case may require." (Ill. Rev. Stat. 1985, ch. 37, par. 701-20(1).)
Section 1-20(3) of the Act provides that "[a]t the first appearance before the court by the minor, his parents, guardian, custodian or responsible relative, the court shall explain the nature of the proceedings and inform the parties of their rights under the first 2 paragraphs of this Section." Ill. Rev. Stat. 1985, ch. 37, par. 701-20(3).
We find that the lower court's error in this instance was harmless since the defendant failed to show how the court's admonishing his parents of their rights under section 1 -- 20 of the Act would have changed the court's decision to order him prosecuted in an adult forum. The defendant's own attorney cross-examined the witnesses and elicited testimony from Dr. Daniel Cuneo, a clinical psychologist, in opposition to the State's motion to transfer. The defendant has failed to suggest what his parents could have added to this evidence that would have changed the result. Since the court's failure to comply with section 1 -- 20 of the Act was harmless, and since the defendant failed to raise this issue at his hearing, we hold that he has waived this issue for purposes of this appeal.
The defendant's second contention on this appeal is that we must grant him a new transfer hearing because in applying section 2-7(3)(a) of the Act (Ill. Rev. Stat. 1985, ch. 37, par. 702-7(3)(a)), the juvenile court abused its discretion when it failed to properly consider the relevant statutory factors, and failed to properly weigh the evidence which reflected favorably upon the defendant. On February 6, 1987, the juvenile court filed an extensive ruling based on the six factors listed in section 2-7(3)(a) of the Act (Ill. Rev. Stat. 1985, ch. 37, par. 702-7(3)(a)). The defendant contends that a review of the record indicates that the lower court failed to adequately consider all the necessary statutory factors. The defendant also contends that, upon examination of the written order, it is apparent that the court ignored evidence that reflected favorably upon the defendant.
Section 2-7 of the Act (Ill. Rev. Stat. 1985, ch. 37, par. 702-7) prohibits criminal prosecution of minors who are under 17 years of age at the time of the alleged offense with certain exceptions. One of those exceptions, prescribed in section 2-7(3) of the Act, permits the prosecution of a minor at least 13 years of age for any offense if, upon the motion of the State's Attorney, a "Juvenile Judge, designated by the Chief Judge of the Circuit to hear and determine such motions," finds that it is not in the best interests of the minor or of the public to proceed under the Juvenile Court Act. Ill. Rev. Stat. 1985, ch. 37, par. 702-7(3).
Central to determining the legal adequacy of the defendant's transfer hearing is an understanding of the purpose and operation of section 2 -- 7(3) of the Act. Section 2 -- 7(3) was enacted subsequent to the United States Supreme Court's decision in Kent v. United States (1966), 383 U.S. 541, 16 L. Ed. 2d 84, 86 S. Ct. 1045, and closely parallels the District of Columbia's transfer provision as ruled upon in Kent. (See Ill. Ann. Stat., ch. 37, par. 702 -- 7, Council Commentary, at 89 (Smith-Hurd Supp. 1989).) In Kent, the Supreme Court explained that the possibility of a minor being subjected to severe punishment is one of the reasons why a hearing, a statement of reasons, and the effective assistance of counsel are necessary before permitting criminal prosecution of the minor. (Kent, 383 U.S. at 553, 16 L. Ed. 2d at 93, 86 S. Ct. at 1053.) In Kent, as in the instant case, the issue was the legal adequacy of a transfer hearing to which the defendant was entitled by statute. In concluding that Kent's transfer hearing was inadequate as a matter of law, the Court stressed the critical function of such a hearing. "It is clear beyond dispute that the waiver of jurisdiction is a 'critically important' action determining vitally important statutory rights of [a] juvenile." (Kent, 383 U.S. at 556, 16 L. Ed. 2d at 94, 86 S. Ct. at 1055.) Because of the central significance of a transfer hearing, the Court observed that the juvenile court's discretion to waive jurisdiction must be exercised within the limits of due process and, in addition, must comport with applicable statutory guidelines. The Court then stated that the juvenile court must provide a statement of the reasons motivating the transfer:
"Accordingly, we hold that it is incumbent upon the Juvenile Court to accompany its waiver order with a statement of the reasons or considerations therefor. We do not read the statute as requiring that this statement must be formal or that it should necessarily include conventional findings of fact. But the statement should be sufficient to demonstrate that the statutory requirement of 'full investigation' has been met; and that the question has received the careful consideration of the Juvenile Court; and it must set forth the ...