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People v. Brown, No. 2-96-1492 2nd Dist. 12/31/98 |
No. 2--96--1492
December 31, 1998
____________________________________________________________ _____
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
____________________________________________________________
_____
ILLINOIS, Plaintiff-Appellee, v. JAMES S. BROWN, Defendant-Appellant. of Lake County. No. 96--CF--2557 Honorable Raymond J. McKoski, Judge,
Presiding. JUSTICE HUTCHINSON delivered the opinion of the
court: Defendant, James S. Brown, was charged by indictment
with two counts of first degree murder (720 ILCS 5/9--1(a)(2), (a)(3) (West
1996)) and two counts of aggravated arson (720 ILCS 5/20--1.1(a)(1), (a)(2)
(West 1996)). Defendant was transferred from juvenile court to the criminal
court system for prosecution. The cause proceeded to trial where a jury found
defendant guilty of the lesser included offenses of involuntary manslaughter
(720 ILCS 5/9--3 (West 1996)) and reckless conduct (720 ILCS 5/12--5 (West
1996)). The trial court entered its judgment of conviction and imposed a
sentence of four years' imprisonment in the Juvenile Department of Corrections.
The trial court denied defendant's posttrial motion, and defendant timely
appeals. On appeal, defendant asserts that (1) his confession
was involuntary; (2) his transfer from juvenile court to the criminal
court was an abuse of discretion; and (3) the trial
court erred in denying his motion to transfer him back to juvenile court for
sentencing purposes. We affirm in part, vacate in part, and remand. In September 1996 a hearing was conducted to
determine whether defendant, who was approximately 14 years, 11 months old at
the time of the offense, should be tried as an adult. See 705 ILCS 405/5--4(3)
(West 1996) (pertaining to discretionary transfers). The trial court heard the
testimony of several witnesses, including juvenile detective Brian Hanna, who
interviewed defendant concerning the fire. Defendant told Hanna that he and
Anthony Robinson were out walking and spotted a gasoline can. They picked it up,
and Robinson retrieved some matches. Robinson suggested that they set garbage
cans on fire. Defendant accompanied Robinson, whereupon they found a garbage can
near a residence. Robinson poured gasoline in it and started a fire; they both
then ran. Two additional garbage can fires were set. The record reflects that
defendant was unaware that an infant had perished in a residential fire as a
result of one of the fires. Dr. Steve Peters, a clinical psychologist and
director of adolescent psychology at St. Therese Hospital, performed a
psychological evaluation of defendant. Dr. Peters opined that defendant would be
appropriate for a residential treatment program that St. Therese recently
developed. He described defendant as open and reasonably cooperative toward
treatment. Robert Schroeder, a probation officer, testified
regarding placements for minors involved in arson-type offenses. Schroeder
believed that defendant's behavior and his adjustment to the situation has
progressively improved. He also believed that defendant was amenable to
treatment, but also a significant risk to the community. He noted that defendant
had no prior criminal background, with the sole exception of a branch court
referral for theft. He recommended that defendant remain within the juvenile
court system. James Fuller, senior juvenile counselor at the Hulse
Juvenile Center, testified that he has observed a positive change in defendant
since his detention. George Saxton, a family and individual therapist with the
juvenile court system, testified that defendant was amenable to
treatment. After hearing closing arguments, the juvenile court
discussed defendant's flight from the scene of the fires; his accountability for
the alleged offenses; his failure to warn any parties regarding the fires; and
the failure to report the incident. The court concluded that sufficient evidence
existed upon which a grand jury may be expected to return an indictment. The
court also considered the statutory factors, determined that defendant's case
should be treated in adult court, and ordered it transferred. Defendant subsequently filed a motion to suppress
his confession. At the hearing conducted on this motion, Detective Hanna
testified that, on July 1, 1996, he went to defendant's home and spoke with his
mother, Clotel Clark. Hanna told Clark that he needed to speak with defendant
regarding some garbage cans fires that were started earlier that morning.
Defendant came to the door and Hanna informed them both of his desire to speak
with defendant regarding the fires. Defendant went to the squad car, and Hanna
spoke with Clark further. Clark asked whether she should go to the station.
Hanna "advised her that if she wanted to come down to the police station she
could. It was up to her if she wanted to come. She could come and ride in [the]
squad car if she wanted to." In response Clark decided she would stay home.
Hanna told Clark that they would contact her when they were finished questioning
defendant. Once at the station, Hanna gave defendant the Miranda
warnings and the juvenile's rights warning waiver. After that process was
complete, defendant admitted that he was with Anthony Robinson, and that
Robinson had started all of the fires. Defendant agreed to give a written
statement. Hanna and Detective Timothy Mormino typed a statement and reviewed it
with defendant, who informed them that it was correct and signed the statement.
After the interview had finished, Clark telephoned the police
station. On cross-examination, Hanna admitted that he had not
told defendant or defendant's mother that an infant had died as a result of one
of those fires. He stated that defendant and Clark were not given this
information until defendant had finished making a statement to the police. Clark
then visited with defendant; afterwards, Hanna transported Clark back
home. Detective Mormino testified next and generally
corroborated Hanna's testimony. Howard Atlas, chair of the psychology department
at the Waukegan public schools, testified regarding defendant's academic
achievement. Defendant attended regular education classes, but was referred for
a case study evaluation for special education in February 1996. Dr. Peters discussed the results of his testing of
defendant, which showed that defendant had a verbal scale intelligence quotient
(IQ) of 80, performance scale of 86, and a full scale of 81. Peters opined that
defendant would have understood the Miranda warnings given to him by
the detectives. Clark testified next. She stated that an officer
came to her house and informed her that he wished to speak with defendant "about
some garbage cans being set on fire." The officer told her that he wanted to
take defendant downtown and ask him a few questions. Clark allowed defendant to
leave with the officer. She decided it was unnecessary to accompany defendant
based upon the information she had been given. Shortly thereafter, however, she
decided to go to the police station. She telephoned the station and a squad car
was dispatched to pick her up. Once at the station, she asked to see defendant.
Defendant was brought into the room that she was in. By this time, though, Clark
had learned that an infant had died in the fire and defendant had already given
a statement. Defendant testified that Hanna wanted to ask him
about some fires. He accompanied the officers to the station. Defendant stated
that, before Hanna read the Miranda warnings and the juvenile warnings,
he asked to see his mother. He testified that he did not understand three of the
warnings. On cross-examination, defendant agreed that he told the officers that
he understood the warnings, but explained that he was just
frustrated. After hearing arguments, the trial court found that
the waiver was made knowingly and voluntarily, was not coerced, nor was
defendant's will overborne. The trial court denied defendant's motion to
suppress. Defendant's jury trial commenced November 4, 1996.
Evidence adduced at trial indicated that, during the early morning hours of July
1, 1996, defendant was with his friend, Anthony Robinson. Robinson found a gas
can containing gasoline. He told defendant he was going to set some garbage cans
on fire, and defendant walked with him. Robinson went behind a house where an
Hispanic family lived and poured gas onto a city garbage can. He then lit a
match and threw it on the garbage can, which caught on fire. Defendant and
Robinson ran away. Robinson went to another location, a store, and
pulled a garbage can close to the fence behind the store. He then poured gas and
lit a match, throwing it in the can. Robinson set a third garbage can fire,
which they then tried to extinguish at the urging of other people. An Hispanic
man came out and yelled at them. Defendant and Robinson then went to a friend's
house to sleep. John Sherwood, a firefighter with the Waukegan fire
department, testified that he responded to a residential fire in Waukegan at
approximately 3 a.m. on July 1, 1996. The house was still on fire at that time.
Sherwood stated that the fire originated in a garbage can approximately two feet
from the basement door and spread to the house. Two bedrooms were damaged by
smoke and heat, but Sherwood noted that there was not a lot of
charring. Gerario Andrade testified that he lived on the
second floor with his wife, their two children, and his sister. They were
awakened by a phone call from their family on the first floor telling them of a
fire. Because of the smoke and flames, they could not get to the exit and left
through the second floor bedroom windows. Gerario's sister jumped from her room
and Gerario took his daughter onto the roof from their bedroom window. The
window became stuck as his wife, Marlen Albarran, tried to escape. Gerario
helped his wife get out; however, the infant was still inside. The infant later
died of smoke inhalation. At the close of the evidence, both sides presented
closing arguments. The trial court instructed the jury. Upon returning from its
deliberations, the jury found defendant guilty of involuntary manslaughter and
reckless conduct. Defendant's counsel moved to have defendant
transferred back to juvenile court for ruling and disposition because defendant
was found guilty of the lesser included offenses. The State objected. The trial
court ordered both sides to review this issue and set a future date for hearing.
At the hearing, defendant's counsel argued that, when such verdicts were
rendered in automatically transferred cases, unlike defendant's, those cases
were automatically transferred back to juvenile court unless the State requested
a hearing. Counsel argued that, because defendant's case was not a mandatory or
automatic transfer, section 5--4(3)(a) of the Juvenile Court Act of 1987 (the
Act) (705 ILCS 405/5--4(3)(a) (West 1996)) applied; therefore, the trial court
had discretion to determine the appropriate court for defendant. The State
contended that the trial court had no discretion and that defendant should
remain in adult court. The trial court determined that section 5--4(3)(a)
of the applicable statute did not provide for another hearing where one had been
previously held regarding transfer or for judicial discretion on the issue. The
trial court stated: The trial court denied defendant's posttrial motion,
and defendant was sentenced as an adult to 4 years' imprisonment in the Juvenile
Department of Corrections. Defendant timely appeals. On appeal, defendant first contends that the trial
court erred by finding that his statements on July 1, 1996, were made knowingly
and voluntarily. In support of his contention, defendant argues that he and his
mother were deceived by Officers Hanna and Mormino into believing that defendant
would be questioned about garbage can fires, "a minor offense." Defendant admits
that his mother initially decided not to accompany him to the station, but that
this notice to the parent should be insufficient due to the officers' omission
of the crucial fact that an infant had perished in the fire. A reviewing court will not disturb a trial court's
finding denying a motion to suppress an incriminating statement made by a
defendant unless its finding is contrary to the manifest weight of the evidence.
In re J.J.C., 294 Ill. App. 3d 227, 235 (1998). Persons subjected to
custodial police interrogation regarding matters that might tend to incriminate
them are entitled to the procedural safeguards outlined in Miranda v.
Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966). These
rights may be waived, if the waiver is made knowingly and intelligently.
Miranda, 384 U.S. at 475, 16 L. Ed. 2d at 724, 86 S. Ct. at 1628.
Juvenile defendants are also protected by the Miranda safeguards, and
the State bears the burden to show by a preponderance of the evidence that a
confession was given knowingly and intelligently. J.J.C., 294 Ill. App.
3d at 234. This court looks at the " 'totality of the
circumstances' " in determining whether a statement has been voluntarily given.
J.J.C., 294 Ill. App. 3d at 234, quoting People v. Oaks, 169
Ill. 2d 409, 451 (1996). In determining voluntariness, the test is whether the
incriminating statement was made freely, voluntarily and without compulsion or
inducement of any sort, or whether the defendant's will was overcome at the time
of the confession. In re L.L., 295 Ill. App. 3d 594, 600 (1998); see
also People v. Miller, 173 Ill. 2d 167, 181 (1996). Many factors are
considered, including the age, education, intelligence, and emotional
characteristics of the accused; the duration of questioning; whether the accused
was informed of his constitutional rights or was subjected to any physical
punishment; previous experience with the criminal justice system; and whether
the confession was induced by police deception. L.L., 295 Ill. App. 3d
at 600. Where juveniles are concerned, additional factors must be considered,
including the time of day and the presence of a parent or other adult concerned
about the juvenile's welfare. L.L., 295 Ill. App. 3d at 600. The
determination of voluntariness does not rest on one factor alone; the question
must be answered based on the circumstances of each case. L.L., 295
Ill. App. 3d at 600, citing J.J.C., 294 Ill. App. 3d at 238. The gravamen of defendant's argument that his
statement was involuntarily given is that the statement was obtained through
police deception. The act of deception, or subterfuge, occurred when the police
withheld the fact that an infant had died in one of the fires for which
defendant was being questioned. Initially, we note that defendant was under no
compulsion to accompany the officers and was free to leave the station prior to
making his incriminating statements. Defendant and his mother were both aware
that the officers were going to question defendant regarding garbage can fires.
Indeed, the officers did question defendant regarding the garbage can fires. The
issue then becomes to what extent must officers inform parties of the nature of
their desired questioning, or, more specifically as it relates to this case,
whether the officers had a duty to inform defendant and his mother that the
questioning could encompass a fatality resulting from one of the garbage can
fires. We acknowledge that the record supports an argument
that the officers' conduct could be construed as subterfuge by their act of
withholding information on the exact nature of the police questioning when
seeking both Clark's permission and defendant's agreement to accompany the
officers to the station. See People v. Torres, 283 Ill. App. 3d 281,
289 (1996), citing People v. Arias, 179 Ill. App. 3d 890, 896-97
(1989). However, the officers' act does not invalidate defendant's consent to
accompany the officers to the station. Furthermore, we believe this act is
insufficient to render defendant's statement involuntary. Reviewing courts have
both condoned and condemned the act of police subterfuge while conducting a
criminal investigation involving a juvenile suspect. See Arias, 179
Ill. App. 3d at 896-97; People v. Bridges, 198 Ill. App. 3d 534, 538-39
(1990). Undeniably, though, criminal suspects do not have the right to be
informed of the specific criminal offense or potential criminal offenses for
which they may be charged when questioned by the police. Torres, 283
Ill. App. 3d at 290, citing People v. Prude, 66 Ill. 2d 470, 475-76
(1977). In the present case, we find that the officers were
under no affirmative obligation to disclose the entire scope of their
investigation to defendant and his mother. Officer Hanna specifically and
unequivocally told defendant and his mother that he wished to question defendant
regarding some garbage can fires. Defendant agreed to go to the station with
Hanna and Mormino. Defendant's mother declined to accompany her son to the
station. The trial court gave detailed findings regarding the
voluntariness of defendant's statement. It discussed applicable case law;
defendant's testimony; the officers' testimony; defendant's ability to read
without hesitation; his age; his mental functioning; his ability to express
himself; his prior contact with police; the duration of the interview; the
presence of a juvenile officer; and the officers' conduct in withholding the
information on the fatality. Based on the facts and circumstances presented, we
find that the evidence clearly demonstrates that the trial court's finding was
not against the manifest weight of the evidence. Defendant's second issue on appeal is whether the
trial court abused its discretion in transferring his case to the criminal court
for prosecution as an adult. Defendant asserts that he should not have been
transferred in light of the statutory factors and the abundance of testimony
concerning his favorable response to treatment. Section 5--4(3)(a) of the Act permits the
prosecution of a minor 13 years of age or over under the criminal laws for any
offense if, upon the motion of the State's Attorney, a juvenile court judge
finds that it is not in the best interests of the minor or of the public to
proceed under the Act. 705 ILCS 405/5--4(3)(a) (West 1996); People v.
Fuller, 292 Ill. App. 3d 651, 657 (1997). The State bears the burden of
presenting sufficient evidence to persuade the juvenile court to grant the
motion to transfer. Fuller, 292 Ill. App. 3d at 657, citing People
v. Taylor, 76 Ill. 2d 289, 304 (1979). Our standard of review on a trial
court's ruling on a motion to transfer pursuant to section 5--4(3)(a) is whether
the juvenile court abused its discretion. In re L.J., 274 Ill. App. 3d
977, 979 (1995). Section 5--4(3)(b) of the Act (705 ILCS
405/5--4(3)(b) (West 1996)) lists eight factors that a juvenile court must
consider, among other matters, in determining whether to grant or deny a motion
to transfer. Fuller, 292 Ill. App. 3d at 657. The factors include:
No single factor is dispositive, and equal weight
need not be given to each factor. Fuller, 292 Ill. App. 3d at 657. All
factors need not be resolved against the juvenile for a trial court to find that
such a transfer is warranted. People v. Cooks, 271 Ill. App. 3d 25, 39
(1995). Finally, our function is not to reweigh all of the factors, but to
determine whether an abuse of the trial court's discretion occurred.
Fuller, 292 Ill. App. 3d at 659. At the transfer hearing in the present case the
juvenile court considered the number of fires that were set, all of which
involved the presence of defendant and his knowledge; his continued contact with
the other offender after the commission of the crime; his flight from the scene;
his failure to report the incident; and his failure to warn any party who might
suffer as a result of the fires. The juvenile court also considered the
statutory factors, noting that sufficient evidence existed such that a grand
jury would be expected to return an indictment and defendant's implicit
knowledge as well as his indifference to the possible consequences of starting
fires and the categorization of starting fires in close proximity to a residence
being an aggressive act. The juvenile court also considered defendant's age, 14
at the time the offenses were committed. Although defendant highlights the fact
that he was only 14 at the time the offenses occurred, we note that he was
barely six weeks shy of his 15th birthday when he committed the crimes charged,
which would have garnered an automatic transfer. See 705 ILCS 405/5--4(6)(a)
(West 1996). The juvenile court noted defendant had no previous involvement with
juvenile detention or criminal activity. The next factor the court discussed was the
facilities available to defendant for treatment and rehabilitation. Defendant
was referred to treatment at a number of facilities; however, all but one
rejected defendant for reasons concerning defendant's "fire starting behavior."
The only facility that accepted defendant, the court noted, was not a realistic
option in that it was an insecure setting, was not immediately available, and
had no treatment program in effect at that time. In addressing this factor we
note that if defendant was transferred to the adult criminal court for
prosecution and later convicted and sentenced to imprisonment, he may still be
confined in the juvenile division of the Department of Corrections. See 730 ILCS
5/5--8--6(c) (West 1996) (providing that "[a]ll offenders under 17 years of age
when sentenced to imprisonment shall be committed to the Juvenile Division of
the Department of Corrections *** and such sentence shall apply whenever the
offender sentenced is in the control and custody of the Adult Division of the
Department of Corrections"). Therefore, the facilities available to benefit
defendant may be the same while he remains a minor whether he is adjudged a
delinquent in the juvenile court or found guilty of first degree murder in the
adult criminal court. Regarding the best interest of defendant and the
security of the public, the juvenile court offered a favorable response to
defendant's progress since he was detained. Lastly, the juvenile court found
that gasoline and matches were not per se deadly weapons, but rather,
from a practical standpoint they could lead to deadly results. The eighth factor
was not applicable. The court noted its difficulty in making a decision, but
concluded "both for the security of the public and safety of the minor *** there
[was] a probable necessity of detention or supervision beyond minority." The
trial court ordered defendant's case transferred to criminal court. In light of the juvenile court's findings in
relation to the statutory factors and other evidence presented, we determine
that the record presents sufficient evidence to support the juvenile court's
order transferring defendant's case. Accordingly, we determine that the juvenile
court did not abuse its discretion in granting the State's motion to
transfer. Defendant's final issue is whether the trial court
erred in denying his motion to transfer his case back to juvenile court for
purposes of sentencing. Prior to trial, the trial court conducted a hearing
pursuant to section 5--4(3)(a) and determined that defendant should be
prosecuted as an adult. Parenthetically, we note that the trial court's order
allowing defendant to be tried as an adult was not a final and appealable order
and, as such, was subject to reconsideration by the trial court. See 155 Ill. 2d
R. 304(a). He was tried for first-degree murder and aggravated arson. He was,
however, convicted of involuntary manslaughter and reckless conduct. Subsequent
to the conviction, defendant moved the trial court to transfer his case back to
juvenile court for sentencing. The trial court denied defendant's motion.
Defendant focuses upon the fact that he was only 14
at the time the offense was committed and therefore, not subject to the
automatic transfer provisions contained in section 5--4. If defendant was 15, he
would have been automatically transferred to adult court, and upon his
conviction of a lesser included offense, he would have been automatically
transferred back to juvenile court. See 705 ILCS 405/5--4(6)(a), (6)(c)(ii)
(West 1996). Defendant maintains that the trial court erred in determining that
it had no discretion to return defendant to juvenile court for sentencing or to
hold another transfer hearing on the matter. Alternatively, defendant contends
that the transfer provisions of the Act violate his constitutional rights of due
process and equal protection of the laws. See Ill. Const. 1970, art. I,
§2. In our resolution of this issue, we need not reach
the constitutional questions. See generally People v. DePalma, 256 Ill.
App. 3d 206 (1994). For the reasons that follow, we find that the trial court
abused its discretion and accordingly, vacate and remand on this
issue. Initially, we note that section 5--4 is not limited
to the transfer and transfer back of juvenile offenders. Rather, as stated in
the heading, the statute relates to all criminal prosecutions of
individuals under 17 years of age. Once convicted, the trial court enters
judgment on the verdict pursuant to section 2--5 of the Criminal Code of 1961
(720 ILCS 5/2--5 (West 1996)). We do, however, acknowledge that no explicit
provision exists for those juvenile offenders transferred pursuant to section
5--4 (3)(a) to be automatically transferred back to the juvenile justice system
upon conviction of a lesser included offense. Although such a provision would be
helpful and consistent with the other transfer provisions enunciated in section
5--4 of the Act, we believe that its absence is not fatal to our disposition of
this issue. After all, " 'classification by age is not a new concept and
has been held to be a permissible distinction.' " People v. Williamson,
131 Ill. App. 3d 321, 323 (1985), quoting People v. J.S., 103 Ill. 2d
395, 403 (1984). We believe that a trial court is not precluded from
using its discretion on cases in which the automatic transfer provisions do not
apply. In examining statutes, we have found it instructive to consider relevant
statements by legislators concerning the proposed legislation. See People v.
Rasmussen, 233 Ill. App. 3d 352, 363 (1992), citing Sulser v. Country
Mutual Insurance Co., 147 Ill. 2d 548, 555 (1992). In amending the statute
to include the automatic transfer provisions, the legislature provided insight
as to the interpretation of the statute. The legislative debates indicate that
the proposed transfer provisions were not meant to restrict, but enhance
judicial discretion. Rather than having all cases which were originally
transferred to adult court via judicial discretion automatically sent back to
juvenile court upon acquittal or conviction of a lesser included offense, the
legislature indicated through this amendment that it wished to authorize the
judiciary the discretion to keep those offenders aged 15 and 16 in the adult
criminal court for sentencing. At the time of the hearings, Representative
Saviano explained that, without the automatic transfer provisions, "if a minor
is charged with first-degree murder [and] *** found guilty of second-degree
murder *** he slides back to the juvenile courts and is sentenced under those
guidelines." 88th Ill. Gen. Assem., House Proceedings, April 20, 1993, at 142.
Representative Saviano also agreed with Representative Homer's
interpretation: Moreover, by way of analogy, section 6--1 of the
Criminal Code of 1961 (720 ILCS 5/6--1 (West 1996)) states that "[n]o person
shall be convicted of any offense unless he had attained his 13th birthday at
the time the offense was committed." 720 ILCS 5/6--1 (West 1996). This statute
does not mean that any individual under the age of 13 has the unfettered ability
to commit crimes and not be subject to any consequences. This statute also does
not prohibit or preclude a trial court from exercising its discretion to
continue a case until the juvenile offender turns 13 for a dispositional
hearing. See People v. Griffin, 92 Ill. 2d 48 (1982) (holding that,
even though the defendant was 12 at the time of offense, it was permissible for
the trial court to continue the case for a dispositional hearing until the
juvenile offender was 13 to enable the juvenile to be committed to the Juvenile
Department of Corrections). Therefore, the State may present a motion, either at
the time of conviction or any time prior to sentencing, calling for the
retention of the minor in the jurisdiction of the adult criminal court.
Similarly, the minor may present a motion requesting a transfer back to the
jurisdiction of the juvenile court. By doing so, the trial court may find that
the juvenile offender should be transferred back to the juvenile justice system
for the purpose of sentencing under Chapter V of the Unified Code of Corrections
or retained in the adult court for sentencing under the criminal laws of the
State. Cf. Griffin, 92 Ill. 2d 48. Alternatively, the trial
court may, on its own, enter a finding of jurisdiction at the time of
conviction. By allowing the trial court discretion to determine whether to
transfer the juvenile back to juvenile court, the trial court is afforded the
opportunity to balance the interests of the community and the minor in reaching
a sentencing determination, just as it had an opportunity to balance the
interests in reaching a prosecutorial determination. Further, the trial court
should use the same guidelines provided in section 5--4(3)(b) in reaching a
decision on whether to transfer the juvenile. Cf. In re D.T.,
141 Ill. App. 3d 1036 (1986). In the present case, the trial court determined
that, because the statute did not provide either for another hearing or for
judicial discretion on the issue, it had no choice but to sentence defendant as
an adult after he was convicted of the lesser included offenses. We find that,
by failing to exercise any discretion, the trial court abused its discretion in
determining whether to transfer defendant back to the juvenile justice system
for purposes of sentencing. Therefore, we vacate the order of the trial court
and remand for a determination as to whether defendant should be transferred
back to the juvenile court or retained in the adult court system for purposes of
sentencing. For the foregoing reasons, the judgment of the
circuit court of Lake County is affirmed in part, vacated in part, and remanded
for further proceedings consistent with this opinion. Affirmed in part, vacated in part and
remanded. McLAREN and THOMAS, JJ.,
concur.
PEOPLE OF THE STATE OF
Appeal from the Circuit
Court
"[T]here has already been a hearing because it [was] under the
discretionary transfer provisions. *** [T]he [j]udge *** decided that this
case should be handled in adult court and in exercising *** his discretion in
this case sent the case here to be handled.
***
As a result, I will find *** defendant is
to be sentenced under the adult sentencing provisions because a hearing was
held which a [j]udge decided this case should be in adult court and stays in
adult court under the statutory provisions of (3)(a)."
"(i) whether there is sufficient evidence upon which a grand jury
may be expected to return an indictment; (ii) whether there is evidence that
the alleged offense was committed in an aggressive and premeditated manner;
(iii) the age of the minor; (iv) the previous history of the minor; (v)
whether there are facilities particularly available to the Juvenile Court for
the treatment and rehabilitation of the minor; (vi) 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; (vii) whether the minor possessed a deadly weapon when committing
the alleged offense; and (viii) whether the alleged offense is a felony
offense under Section 5 of the Cannabis Control Act committed while in a
school ***[.]" 705 ILCS 405/5--4(3)(b) (West 1996).
"[T]hat where there's been an automatic transfer or a
transfer of a prosecution of a case from juvenile to adult court, that
*** where there's a finding of 'not guilty' or an acquittal on the underlying
offense that gave rise to the transfer that the court then may
sentence the person as an adult on the lesser charges[.]" 88th Ill. Gen.
Assem., House Proceedings, April 20, 1993, at 140-41.