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In re M.G.

November 20, 1998

IN RE M.G., A MINOR (THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE,
v.
M.G., A MINOR, RESPONDENT-APPELLANT).



The opinion of the court was delivered by: Justice Greiman

Appeal from the Circuit Court of Cook County.

96 JD 15032

The Honorable Daniel Kelly Judge Presiding.

Respondent M.G., a 13-year-old, challenges his adjudication of delinquency and Disposition pursuant to section 5--36 of the Juvenile Court Act of 1987 (commonly known as the Violent Juvenile Offender Act) (705 ILCS 405/5--36 (West 1996)), for aggravated discharge of a firearm (720 ILCS 5/24--1.2(a)(2) (West 1996)). M.G. argues (1) that the mandatory Disposition provision of the Violent Juvenile Offender Act violates the United States Constitution and the Illinois Constitution; (2) the State failed to provide sufficient notice of the proceedings to his father; and (3) the State failed to provide M.G. with adequate notice of its intent to prosecute him under the Violent Juvenile Offender Act. We affirm.

On October 15, 1996, a petition was filed for an adjudication of wardship alleging that on October 11, 1996, M.G. committed the offense of reckless discharge of a firearm in violation of section 24--1.5(a) of the Criminal Code of 1961 (720 ILCS 5/24--1.5(a) (West 1996)). The trial court first heard the matter that same day, with M.G. receiving legal representation from the Northwestern University Legal Clinic. The court questioned M.G. and he identified his mother, who was present in court that day. M.G. identified his father as Albert G. M.G.'s mother added that the father was incarcerated, and M.G. indicated that his father was in "Pontiac." The petition includes the names of M.G.'s parents but lists Albert G.'s address as "unknown." However, there is handwriting on the document indicating "Pontiac." The court stated "Mother in court; certified mail to father."

At that initial hearing, the State requested leave to amend the petition to include a second count for aggravated discharge of a firearm. The court then asked M.G. if he understood this count and he said, "Yes." M.G. waived formal reading of petition.

On October 18, 1996, the court conducted an emergency hearing with only a representative of the State's Attorney's office being present. The State sought leave to file a notice of intent to prosecute M.G. as a violent juvenile offender. The Assistant State's Attorney indicated that he gave notice to M.G.'s attorneys via fax the day before the hearing. The attorney further stated: "I have spoken to Northwestern Legal Clinic this morning. Sheryl Graves is not in town, and her partner on the case Angela [Coin] is also not in town. I spoke with a Steven Drizin *** and he has faxed a note to me indicating that, in fact, their office was in receipt of the State's motion and notice of motion as of 1:09 p.m. yesterday ***. However, Mr. Drizin also wanted this Court to be informed that in no way are they at this time conceding whether the service was proper nor timely, and wanted me to make that representation to the Court."

There is no indication that M.G. was present or absent from that hearing. The court held the matter over until October 22, 1996.

On October 22, 1996, Angela Coin of the Northwestern University Legal Clinic appeared on behalf of M.G. She moved to quash the State's notice of intent to file as a violent juvenile offender. She stated that on the afternoon before the date of the last hearing, the State faxed her office the notice. However, the two attorneys and the law students working on the case were not in town that day and did not receive the notice. The trial court denied the motion to quash the notice. M.G. then moved to dismiss the notice of intent to prosecute the minor as a violent offender.

On December 4, 1996, *fn1 the court heard the matter again. At that hearing, the Assistant State's Attorney stated, "I need to make a record that summons by certified mail was tendered to Albert [G.], the father of the minor respondent. I have received a green card. I'd like to make that of record and put it in the file." There was no objection.

On December 13, 1996, the parties presented argument on the motion challenging the constitutionality of the Violent Juvenile Offender Act. The court found it constitutional and denied the motion to dismiss. On January 14, 1997, a jury was selected, and on January 15, 1997, the jury heard the testimony of several witnesses. M.G.'s mother was present. The jury found M.G. delinquent by reason of aggravated discharge of a firearm.

On February 28, 1997, the trial court denied M.G.'s motions for a new trial and judgment notwithstanding the verdict. The court then began to conduct a Dispositional hearing. The court recognized, however, that it had no discretion in selecting the appropriate Disposition. The court stated it could consider evidence but, according to the statute, the Disposition would be to commit M.G. to the Department of Corrections regardless of the evidence. The State tendered a verified statement indicating that M.G. was previously adjudicated delinquent for the offense of aggravated criminal sexual assault, a Class X felony, on March 8, 1996.

The trial court found that M.G. was served with written notice of the intent to prosecute under the Violent Juvenile Offender Act within the statutory time period; he was previously adjudicated delinquent for the offense of aggravated criminal sexual assault which, had he been an adult, would have been a Class 2 or greater felony involving the use or threat of physical force or violence on an individual; and he was adjudicated delinquent for the subsequent offense of aggravated discharge of a firearm which, had he been prosecuted as an adult, would have been a Class 2 or greater felony involving the use or threat of physical force or violence against an individual. M.G. was adjudicated a violent juvenile offender and committed to the Department of Corrections until his twenty-first birthday.

This appeal is a case of first impression calling upon this court to examine the Violent Juvenile Offender Act. M.G. contends that the Violent Juvenile Offender Act's mandatory Disposition provision violates the Illinois Constitution as well as the due process and equal protection clauses of the United States Constitution.

The Violent Juvenile Offender Act provides in ...


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