The People of the State of Illinois, Plaintiff-Appellee, v. Billy Rose Sprinkle, Defendant-Appellant, 4 Ill. App. 3d 6

Mr. JUSTICE SCOTT deHvered the opinion of the court: The defendant was charged by indictment in WH1 County with the crimes of murder and deviate sexual assault. Subsequently he pleaded guilty to both of these charges and was sentenced to a term of not less than 75 nor more than 90 years for murder and to a term in the penitentiary of not less than 13 nor more than 14 years for deviate sexual assault. The sentences were to run concurrently. The sentencing of the defendant resulted from offenses which occurred in the late afternoon on September 16, 1968, in the city of Joliet.

On that date the defendant was 14 years of age and with a companion, James David Perrequet, who was of the same age. The defendant and Perrequet encountered a 14 year old boy named David Stukel, who was on his way home from school. The defendant and Perrequet attempted to sell Stukel a transistor radio and when Stukel refused to purchase the radio a scuffle ensued in which he was hit, pushed and ultimately dragged into a vacant lot covered with high brush. While in this lot the victim Stukel was forced to submit to acts of fellatio and pederasty.

After these acts were completed Stukel was beaten by the defendant and Perrequet with then fists, kicked with their feet and then further struck about the head with a metal bar and a concrete block. The immediate cause of the victim’s death was brain damage resulting from the beating. When the victim’s body was found later in the evening an examination disclosed that his back was covered with contusions, lacerations and abrasions. His head was completely covered with blood and deep lacerations. On the victim’s back was found a Marlboro cigarette butt, cigarette ash and some discoloration of the skin.

Multiple fractures and brain hemorrhages were found when an autopsy was performed. A police investigation did not indicate that there had ever been any prior contact between the victim, the defendant and Perrequet. The defendant attacks the constitutionality of the statute which governs the transfer of cases from the juvenile division of the circuit court to the criminal division,

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Section 702 — 7(3), Illinois Revised Statutes. He argues that it fails to afford a meaningful hearing on the transfer because it does not require the court to give reasons for not objecting to a transfer, and that in the instant case a hearing was not held. Also the defendant argues that the statute is infirm regarding allocation of the burden of proof, that it is vague and ambiguous and because of a lack of standards denies to a defendant an equal protection of the law. The relevant provisions of the governing statute of the Juvenile Court Act are: “If a petition alleges commission by a minor 13 years of age or over of

an act which constitutes a crime under the laws of this State, the State’s Attorney shall determine the court in which that minor is to be prosecuted; however, if the Juvenile Court Judge objects to the removal of a case from the jurisdiction of the Juvenile Court, the matter shall be referred to the chief judge of the circuit for decision and disposition. If criminal proceedings are instituted, the petition shall be dismissed insofar as the act or acts involved in the criminal proceedings are concerned.

Taking of evidence in an adjudicatory hearing in any such case is a bar to criminal proceedings based upon the conduct alleged in the petition.” “If a petition alleges commission by a minor 13 years of age or over of

an act which constitutes a crime under the laws of this State, the minor, with the consent of his counsel, may, at any time before commencement of the adjudicatory hearing, file with the court a motion that criminal prosecution be ordered and that the petition be dismissed insofar as the act or acts involved in the criminal proceedings are concerned. If such a motion is filed as herein provided, the court shall enter its order accordingly.” Ill. Rev. Stat. 1967, ch. 37, par. 702— 7.

On September 17, 1968, a petition was filed in the juvenile court division of Will County (Will County designates their court having juvenile jurisdiction as the family court division) which charged the defendant with being a delinquent. At hearing held on this date the coroner testified as to the cause of death of David Stukel and an investigator of the Sheriff’s office related that the defendant was in custody in connection with said death and that the defendant had admitted his involvement. At the conclusion of the hearing that court found further detention of the defendant was required.

On September 27, 1968, the prosecution again appeared in the juvenile court and petitioned that the case be removed to the criminal division of the circuit court of Will County. Counsel for the defendant consented and the trial court stated that it had no objections so the case was so transferred. The defendant strongly urges that the case of Kent v. U.S., 383 U.S. 541, is controlling of the issues he has raised regarding the validity of the procedures in our Juvenile Court Act pertaining to the transfer of cases from the juvenile court to the criminal division. In Kent the U.S.

Supreme Court held that a waiver of jurisdiction (by the juvenile court) is a “critically important” action determining the vitally important statutory rights of a minor. The Supreme Court further held that a minor defendant was entitled to a hearing as to waiver and to a statement of reasons for the juvenile court’s decision. It is to be noted, however, that Justice Fortes stated in Kent that such a result was required by the District of Columbia statute when read in context with the constitutional principles relating to due process.

The District of Columbia statute is different from the Illinois statute regarding waiver of jurisdiction of a minor in that in the District of Columbia the judge is permitted to waive jurisdiction only after a full investigation. In the Kent case counsel for the defendant arranged for his client to be examined by two psychiatrists and a psychologist.

He thereafter filed with the juvenile court a motion for hearing on the question of waiver of the juvenile court’s jurisdiction, together with an affidavit of a psychiatrist testifying that the defendant was a victim of severe psychopathology and hospitalization for psychiatric observation was recommended. Counsel for the defendant in support of his motion to the effect that the juvenile court should retain jurisdiction offered to prove that if the defendant were given adequate treatment in a hospital under the aegis of the juvenile court he would be a suitable subject for rehabilitation.

Counsel for the defendant further moved that the juvenile court provide him access to a social service file relating to the defendant and which had been compiled by the staff of the court. It was the argument of the counsel that access to this file was essential to his providing the defendant with effective assistance of counsel. The District of Columbia Juvenile Court judge did not rule on any of the motions filed by defense counsel. He further held no hearing.

He did not confer with the defendant, his parents or counsel, but instead entered an order reciting that after full investigation he waived jurisdiction of the defendant and directed that he be held for trial under the regular procedure of the United States District Court for the District of Columbia. No findings were made, no reason for the waiver was stated, defense counsel’s motions were merely ignored as far as any reference to them was concerned.

Sub silentio he denied motions for a hearing, the recommendation for hospitalization, the request for access to records and the offer to prove that the defendant was a fit subject for rehabilitation. In the case before us the record discloses a far different procedural picture. On September 17, 1968, a petition for delinquency was filed in which it was alleged that the defendant was involved in a murder.

In support of this petition the prosecutor presented two witnesses, one the coroner who testified as to the corpus delicti, and a chief investigator for the sheriffs office who testified that defendant had made a statement which involved him in the alleged murder. At the hearing the defendant was represented by counsel and his father was present. The record shows that the court was quite solicitous as to the question of whether or not counsel for defendant was ready to proceed to a hearing or if additional time for preparation was necessary.

During the course of the hearing the court granted a motion of defense counsel which required that certain tapes containing statements of the defendant be produced. The court found that detention of the defendant was required and continued the adjudicatory hearing to September 27, 1968. On this latter date the defendant was again present in court along with his counsel and with both his mother and father. The prosecution then filed a verified petition to locate the case in the criminal division of the circuit comt.

The petition aHeged that the defendant had previously been placed under the supervision of the Juvenile Probation Officer for conduct ranging from criminal damage to property to theft and burglary. The petition further aHeged that defendant committed certain acts resulting in the murder of David Stukel. Counsel for the defendant acknowledged that he had been previously served with a copy of the petition and that he could concede to its prayer. The court advised defendant’s counsel as to the purpose of the hearing and stated that it was ready to listen to any evidence or arguments.

Counsel for the defendant then stated: “We understand that fully. I would say the detention hearing which went into considerable detail and was very lengthy afforded us a fuU opportunity for examination under that and further we are adequately advised in the premises and do consent to the petition to let the matter be transferred to the Criminal Division of the Circuit Court.” The comt then advised that it had no objection to the petition and the case was transferred to the criminal court division of the circuit court.

We have set forth in detail the procedural aspects of Kent and the case before us on appeal because we deem that such a recital is pertinent to the issues raised by the defendant. With this conclusion the defendant does not agree, since his contention is to the effect that the Illinois Juvenile Comt Act as far as its provisions pertaining to waiver of jurisdiction are concerned is on its face unconstitutional. Certainly Kent did not so hold since the Supreme Court specifically held that its decision was required by the District of Columbia statute when read in the context of constitutional principles.

In re Urbasek, 38 Ill.2d 535, 232 N.E.2d 716, om Supreme Court stated that Kent was limited in its application to the District of Columbia, but that this limitation was effectively removed by the comt’s admonition in In re Application of Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527, which held that neither the fourteenth amendment nor the BiH of Rights is for adults only. We quarrel not with the decision of Urbasek or Gault but we do not believe that they ipso facto hold that the Illinois Juvenile Act provisions regarding waiver of juris diction and hearings held thereunder are unconstitutional.

The Urbasek case was concerned with the quantum of proof required for a finding of delinquency for misconduct which would be criminal if charged against an adult; and Gault was limited in its scope to four essentials of due process that are required in a juvenile adjudicatory hearing, to-wit, adequate advance notice of charges, right to counsel, privilege against self incrimination, and the right to confrontation and cross examination of witnesses. In People v.

Jiles, a 1969 case, 43 Ill.2d 145, 251 N.E.2d 529, the constitutionality of the statute which governs the transfer of cases from the juvenile division of the circuit court was attacked on the grounds that it failed to afford intelligible guide lines to the judge or to the parties involved as to the issues to be decided; and the allocation of the burden of proof, and that it is an invalid delegation of legislative power since it fails to provide adequate standards.

The defendant also attacked the statute on the grounds that it is so vague and ambiguous as to violate the equal protection and due process clauses of the fourteenth amendment to the constitution of the United States. It is interesting to note that the identical statute with which we are concerned was under attack for almost the identical reasons that are raised by the defendant in the case before us.

Our Supreme Court did not determine these constitutional questions, however, the court expressed in the form of dictum the following observations: . “While there would probably be almost universal agreement that it is desirable for a State to maintain a juvenile court and to establish special facilities for the treatment of a separate category of “juvenile delinquents”, we are aware of nothing in the constitution of the United States or of this State that requires a State to do so.

Similarly, while it may be highly desirable to commit to the judge of a specialized juvenile court the determination of whether or not a particular juvenile is to be prosecuted criminally, we are aware of no constitutional requirement that a State must do so. “Illinois has chosen not to do so. Under the Illinois Juvenile Court Act the juvenile and his attorney have an uncontrolled discretion to choose to be proceeded against in the criminal court. They may make that choice without regard to any considerations relating to the public interest, or even to the ultimate best interest of the juvenile.

No judge has any authority to interfere with that choice. Under the statute a State’s Attorney has a similar discretion to determine whether or not to proceed criminally against an alleged juvenile offender. His discretion, however, is not entirely uncontrolled. If the judge who hears the matter in the juvenile division objects to the removal of the case from that division the matter is to be referred to the chief judge of the circuit for decision.” We realize that the remarks from Jiles which we have set forth are dicta.

Dicta has been defined “as an observation or remark made by a judge in pronouncing an opinion upon a cause, concerning some rule, principle, or application of law, or the solution of a question suggested by the case at bar but not necessarily involved in the case or essential to its determination.” (Blacks Law Dictionary, 4th Ed.) Accepting the fact that the court’s remarks in Jiles are dicta only, they nevertheless give us an insight as to how our state’s highest tribunal would rule if the constitutionality was questioned of our statute which governs the transfer of cases from the juvenile division to the criminal division of our circuit courts.

We can only conclude that our statute’s constitutionality would be upheld. The remarks of the court in Jiles are not without supporting precedent. (See People v. Hester, 39 Ill.2d 489, 237 N.E.2d 466; People v. Latimore, 362 Ill. 206,199 N.E. 275.) In the Lattimore case it was held that the juvenile court was one of limited jurisdiction while the jurisdiction of the criminal court to try cases was vested by

Section 26 of

Article VI of the State Constitution and that “the legislature is without authority to confer upon an inferior court the power to stay a court created by the constitution from proceeding with the trial of a cause jurisdiction of which is expressly granted to it by the constitution.” The Lattimore case arose under the Judicial

Article of the Constitution of 1870 as it existed prior to 1964 when the Juvenile Court of Cook County was a court of separate jurisdiction created by statute and the Criminal Court of Cook County was a court of separate jurisdiction created by the constitution. Under the present Juvenile Court Act the juvenile court is a division of the circuit court but the reasoning in Lattimore was held applicable in the 1968 case of People v. Hester, supra. After reviewing these cases we conclude that neither Kent, Urbaselc or Gault can be interpreted to hold the statute in question unconstitutional on its face.

Following the reasoning laid down in the cases of Jiles, Hester and Lattimore, it is evident to us that our Supreme Court does not accept the defendant’s contention that

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Section 702 —7(3), Illinois Revised Statutes, is unconstitutional because a hearing on the question of waiver as well as the statement of reasons by the court for its action is not specifically required. It is interesting to note that the defendant makes the assertion that it is questionable if our statute even permits a hearing on the question of waiver of jurisdiction. Not only does our statute allow such a hearing but such hearings frequently occur. In the instant case the trial court offered the defendant such a hearing, but the offer was declined. Such a hearing was held in People v.

Davenport, 111 Ill.App.2d 197, 249 N.E.2d 328, though on appeal the reviewing court rejected defendant’s argument that tibe determination to relinquish jurisdiction of a minor by a court acting under

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Section 702 — 7, Illinois Revised Statutes, is a judicial act and that there must be supporting evidentiary basis upon which the court can act. An analyzation of the procedure followed in the juvenile court in the instant case can only serve to refute the defendant’s assertion that he was denied due process of law and that the burden of proof was allocated to him rather than the prosecution. Unlike Kent, the juvenile court of Will County conducted a hearing which determined that defendant should be detained in custody.

During the hearing detailed testimony was heard concerning the occurrence of a murder and defendant’s involvement in the same. At this hearing the defendant was represented by counsel and his father was present. Ten days later the prosecution filed a verified petition setting forth defendant’s age, his attendance and disciplinary records at school, his prior offenses, and detailed facts concerning the murder of David Stukel and defendant’s participation in this alleged crime. The petition contained a request that the case be transferred to the criminal division.

A far different situation prevailed in Kent where the court ignored motions of defendant and on its own initiative ordered transfer of the case after disregarding the District of Columbia’s statutory mandate that a waiver of jurisdiction could be ordered “only after a full investigation.” Before the juvenile court of Will County at the time the petition for waiver was filed was the defendant, his counsel, mother and father. The judge who had presided at the previous hearing which resulted in the defendant’s detention was also presiding when the petition for transfer was filed.

The judge explained the nature of the proceedings and advised defense counsel as to defendant’s right to a hearing. The parties present had previously heard in the same court testimony that sustained the allegations in the petition regarding the murder and the defendant’s involvement. The defendant’s counsel was well aware of the content of a statement made by the defendant and which was in the possession of the sheriff’s office since the court had previously granted a motion for the production of a recording of such statement.

We fail to see where due process of law was denied to the defendant when both his counsel and the court consented to a transfer of the case to the criminal division. Under our present Juvenile Act, which we deem constitutional, everything necessary was done to afford due process of law to the defendant. It is especially pertinent to realize that the waiver of jurisdiction proceedings were commenced by an informative and detailed petition.

The prosecution had previously in the same court and before the same judge produced ample evidence to support the critical allegations of this petition and it is not an unwarranted assumption to say that if objection to the transfer had been made the same evidence was still available. The mere fact that such evidence had been produced and was still available for further production refutes the defendants contention that the burden of proof had shifted to him. Haziel v.

United States, 404 F.2d 1275, is cited by the defendant as holding that “waiver of jurisdiction” by counsel for a minor defendant is not sufficient but a full hearing on the question is still a requisite if due process of law is to be fulfilled. In reviewing Haziel we are first impressed with the fact that again we have a District of Columbia case where by statute a “full investigation” is required. Secondly, the court makes it abundantly clear that neither the minor defendant nor his parents were ever consulted prior to the defense attorney’s decision to consent to a waiver of jurisdiction.

In fact, in Haziel one of the determining factors supporting its opinion was that the defendant, although indigent, was not afforded counsel for a period of exceeding five months from the time of his apprehension. The Haziel opinion is distinguishable by its inapplicability to the case presently before us. There is no authority to sustain the proposition that due process requires a hearing for all that is required is that the defendant be afforded the opportunity and the right to such a hearing.

The defendant in the case before us possessed such a right and we hold that our Juvenile Act provides for a procedure which meets the basic requirements of due process, namely a just and fair hearing. The defendant further asserts that

Section 702 — 7(3) of the Juvenile Court Act violates the constitutional guarantees of due process and equal protection because of vagueness and ambiguity and that there is a delegation of legislative power without adequate standards relating to its application. In considering these contentions we are mindful of the rule consistently applied by courts of review in our state that laws of the General Assembly are presumed to be constitutional and valid and must be shown to be invalid beyond a reasonable doubt before they will be so construed. (See Liberty Foundaries Co. v.

Industrial Com., 373 Ill. 146, 25 N.E.2d 790; People Gas Light & Coke Co. v. Slattery, 373 Ill. 31, 25 N.E.2d 482; People v. Board of Education, 393 Ill. 345, 65 N.E.2d 825; North Shore Post No. 21 v. Karzen, 38 Ill.2d 231, 230 N.E. 2d 833.) The proper test to be applied when the constitutionality of a statute is challenged on the grounds of vagueness and ambiguity is set forth in the case of People v.

Board of Education, supra, when our Supreme Court stated: “The omission in the statute to specify every detail step by step, and action by action, will not render a law vague, indefinite or uncertain from a constitutional standpoint. In Husser v. Fouth, 386 Ill. 188, 53 N.E.2d 949, 954, we said: “to establish the principle that whatever the Legislature shall do it shall do in every detail or else it will go undone, would, in effect, destroy the government. The government could not be carried on if nothing could be left to the judgment and discretion of the administrative officers.

The true distinction is between the delegation of power to make the law, which involves a discretion as to what the law shall be, and conferring an authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no objection can be made.’ ” To the same effect is Department of Finance v. Cohen, 369 Ill. 510, 17 N.E.2d 327.

Its only when the legislative act is so indefinite and uncertain that the courts are unable, by accepted rules of construction, to determine with any reasonable degree of certainty what the legislature intended, or when it is so incomplete and inconsistent that it cannot be executed, that constitutes such indefiniteness and uncertainty that will invalidate the law. Mayhew v. Nelson, 346 Ill. 381, 178 N.E. 921." Applying this test we cannot agree with the defendant that the statute is vague and ambiguous.

We fail to see that there exists uncertainty as to the application of the provisions of our Juvenile Court Act. The law is not incomplete nor are its provisions indefinite. We acknowledge that the statute grants certain discretion to the States Attorney but this discretion does not embody the power to make a law but instead confers upon him in certain instances the authority to determine the jurisdiction of a proceedings against a minor defendant; yet this discretion is not unbridled but is subject to a final determination by the judiciary.

We further find that the statute is not lacking in standards and thereby there is no denial of equal protection of law to the defendant. The test of equal protection of law is whether the legislation in question operates equally on all persons in the class to which it applies and not whether that class is treated the same as another class. (Hanson v. Raleigh, 391 Ill. 536; 63 N.E.2d 851; Smith v. Murphy, 384 Ill. 34, 50 N.E.2d 844; Murphy v. Cuesta Rey & Co., 381 Ill. 162, 45 N.E.2d 26; People v.

Warren, 11 Ill.2d 420, 143 N.E.2d 28.) The fact that a minor will be treated as an adult as was done in the instant case does not deny him equal protection under the law. Prior to the “waiver of jurisdiction” provided in the Juvenile Act all minors have the same rights and protection and subsequent to a waiver they have the same rights and privileges as that which accrues to all other defendants who have had their case transferred from the juvenile court to the criminal division. A statute does not deny equal protection unless it treats one person in a class different from another in the same class.

We fail to see any such differentiation or disparity in the execution and administration of the statute being questioned. Defendant also contends that the sentence of 75 to 90 years should be reduced on appeal. Such a sentence may not be consistent with the principles announced in People v. Jones, 92 Ill.App.2d 124, 235 N.E.2d 379, where the court recommended imposition of a minimum sentence of not in excess of one-third of the maximum sentence, but as indicated in People v. Scott, 117 Ill.App.2d 344, that standard is quoted only as a guide and not as a hard and fast rule. Defendant cites the case of People v.

Cannon (1971), 49 Ill.2d 163, in support of his contention that the sentence should be reduced. In the Cannon case the Supreme Court held that a death sentence was not appropriate for 16 and 17 year old defendants with no prior criminal record and reduced the sentence to 40 to 60 years in the penitentiary. We find almost no similarity in the Cannon case to the case before us. Without further recitation of the facts, we conclude that in view of defendant’s past criminal record and the brutality of the crime we do not believe that we would be justified in modifying the sentence. See People v.

Caldwell, 39 Ill.2d 346, 236 N.E.2d 706; People v. Fox, (Ill.App.2d), 264 N.E.2d 502. For the reasons given the judgment of the trial court is affirmed. Judgment affirmed. ALLOY, P. J., concurs.