THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. GARY CLARK, Appellant.
No. 63993
Supreme Court of Illinois
December 30, 1987
MILLER, J., concurring in part and dissenting in part.
Neil F. Hartigan, Attorney General, of Springfield, and Jeffrey K. Davison, State‘s Attorney, of Decatur (Kenneth R. Boyle, Robert J. Biderman and Kenneth R. Baumgarten, of the State‘s Attorneys Appellate Prosecutor, of Springfield, of counsel), for the People.
JUSTICE MORAN delivered the opinion of the court:
A juvenile petition naming the defendant, Gary Clark, was filed in the circuit court of Macon County seeking to have the defendant, who was born February 7, 1970, made a ward of the court and asking the court to commence proceedings against him pursuant to the
Plea negotiations commenced. The defendant agreed to plead guilty to the intentional murders of Effie and Prentice Curfman in exchange for the dismissal of all other charges. The plea was accepted and judgment was entered on the plea. One week later, the State filed a motion to compel withdrawаl of the plea on grounds that the trial court did not give the proper admonition regarding the maximum sentence applicable to defendant‘s plea. (
The defendant moved for a change of venue due to adverse publicity. His motion was granted and the case was tried before a jury in the circuit court of Tazewell
Defendant appealed his convictions urging several errors, chief among which was the inadequacy of the hearing held on the State‘s motion to transfer the proceedings against him from a juvenile to an adult prosecutorial forum. A divided appellate court affirmed, “find[ing] that there was sufficient evidence to transfer the defendant” and further “find[ing] no abuse of discretion on the part of the trial court in authorizing the transfer to adult prosecution.” (144 Ill. App. 3d 420, 427, 428.) The dissent focussed on the fact that neither the prosecution, the defense, nor the court were aware that defendant would be subject to a mandatory sentence of natural life imprisonment if tried as an adult and convicted of murdering both of the Curfmans. The result was that no evidence was presented at the transfer hearing to support a finding that it was in the best interest of the defendant and the public that he be incarcerated not just beyond the age of majority, 21, but for the rest of his life. The case is before this court on defendant‘s petition for leave to appeal.
The principal issue for decision is whether the defendant received a legally adequate transfer hearing under
The defendant also raises two challenges under the Illinois Constitution to the imposition of mandatory natural life imprisonment on a juvenile who was only 14 years old at the time of the offenses. The State has moved to strike defendant‘s constitutional challenges, pointing out that these issues are not before this court because defendant‘s petition for leave to appeal did not urge reversal on these or any constitutional grounds. We took the State‘s motion with the case.
We have reviewed defendant‘s petition and agree that the constitutional issues were not relied upon as points for reversal as required by our Rule 315(c)(3). (
The remaining issue concerns the adequacy of defendant‘s transfer hearing. Such hearing is required by statute pursuant to
“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, and, on motion of the State‘s Attorney, a Juvenile Judge, designated by the Chief Judge of the Circuit to hear and determine such motions, after
investigation and hearing but before commencement of the adjudicatory hearing, finds that it is not in the best interests of the minor or of the public to proceed under this Act, the court may enter an order permitting prosecution under the criminal laws. (a) In making its determination on a motion to permit prosecution under the criminal laws, the court shall consider among other matters: (1) whether there is sufficient evidence upon which a grand jury may be expected to return an indictment; (2) whether there is evidence that the alleged offense was committed in an aggressive and premeditated manner; (3) the age of the minor; (4) the previous history of the minor; (5) whether there are facilities particularly available to the Juvenile Court for the treatment and rehabilitation of the minor; and (6) whether the best interest of the minor аnd the security of the public may require that the minor continue in custody or under supervision for a period extending beyond his minority.” (Emphasis added.) (
Ill. Rev. Stat. 1983, ch. 37, par. 702-7(3) .)
However, a juvenile charged, as was the defendant, with the offenses of first degree murder and aggravated criminal sexual assault is tried automatically as an adult if he or she was at least 15 years of age at the time of the alleged offenses.
The procedures governing a transfer hearing and the criteria to be considered are controlled by statute. The statute itself is rooted in the constitutional requirement of procedural due process as stated by the Supreme Court in Kent v. United States (1966), 383 U.S. 541, 557, 16 L. Ed. 2d 84, 95, 86 S. Ct. 1045, 1055. (See People v. Taylor (1979), 76 Ill. 2d 289, 298-300; Ill. Ann. Stat., ch. 37, par. 702-7, Council Commentary, at 84 (Smith-Hurd Supp. 1987).) We turn then to an examination of the transfer hearing held in this case.
The State called Mark Barthelemy, a police officer for the city of Decatur, Illinois. He testified that the defend-
The State inquired into the defendant‘s prior involvement with the authorities. Barthelemy stated that the defendant, at age 10, attempted to steal some toy cars; that he was unsuccessful; and that he then acted as a “shield” while a companion attempted to stеal the toys. Defendant received a station adjustment, which is a verbal warning from the police. A second station adjustment occurred when the defendant was 12. This incident involved an alleged theft under $150, but the details of this incident were not made known to the court. A third incident involving disorderly conduct allegedly occurred when the defendant was 13. However, Barthelemy stated that, while present, “Gary was never actually involved in [the incident].” It was established that the defendant had never been under court or police supervision or adjudicated a delinquent and made a ward of the court. The State did establish that a juvenile petition
The State called Robert Ernest, chief probation officer for the Macon County probation department. He testified that he did not know the defendant and that he had not interviewed the defendant. He also testified that he was unaware of any facilities available in Illinois for the treatment or rehabilitation of the defendant. No reasons were given for this conclusion. Ernest gave his opinion that the best interests of the defendant and society required his confinement beyond age 21 but, again, the record contains no reasons in support of this view. Significantly, neither the assistant State‘s Attorney, defense counsel, the court, nor any witnesses indiсated an awareness that transfer of the defendant from juvenile to adult prosecution might result in imprisonment for the remainder of his life and not just “for a period extending beyond his minority.”
Defense counsel objected to both of Ernest‘s opinions regarding the existence of rehabilitative facilities and the necessity of incarcerating the defendant beyond age 21. Counsel argued that Ernest‘s opinions and, ultimately, the findings of the court should be predicated on facts developed through an investigation rather than on conjecture. Defense counsel‘s objections were overruled.
The record also indicates that no inquiry was undertaken, as required by the Act, with respect to the social or personal history of the defendant. No information was presented as to his adjustment in school. No information was presented regarding defendant‘s physical or mental health, particularly as this might bear on defendant‘s rehabilitative potential. However, the court allowed the defendant‘s mother to make a short statement in which she stated that the defendant was her only source of
“Finding there is sufficient evidence upon which a grand jury may be expected to return an indictment; that there is evidence that the alleged offenses were committed in an aggressive and premeditated manner; that the age of the minor is fourteen years; that there are no facilities particularly available to the Juvenile Court for the treatment and rehabilitation of the minor; that the best interests 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 21st birthday. Finding that the evidence as a whole, including evidence as to the previous history of the minor, as well as the circumstances of the offenses presently alleged, indicates and confirms that it is not in the best interests of the minor and of the public to proceed under the Juvenile Court Act.”
Central to determining the legal adequacy of defendant‘s transfer hearing is an understanding оf the purpose and operation of
Kent was the catalyst for the present version of
The history of the present transfer provision makes it clear that a decision to transfer a juvenile from the jurisdiction of the juvenile court to the jurisdiction of the criminal court requires faithful adherence to the statutory requirements governing the transfer proceeding in light of the purpose of those requirements. A careful analysis of
We note with interest that the legislаture itself balanced the competing interests of minor offenders and society where it is alleged that a minor has committed “murder, [or] aggravated criminal sexual assault” and “was at least 15 years of age” at the time of the alleged offense. ( The State alleged at defendant‘s transfer hearing that he had murdered two people and committed aggravated criminal sexual assault. Consequently, if the defendant had been 15 years of age at the time he allegedly committed these offenses, he would have been tried automatically as an adult under the Criminal Code. However, the defendant was 14 years of age at the time. Thus, the defendant is a minor whom the legislature in- Where the juvenile judge considers evidence on the various statutory factors and evidence on any other relevant matters as providеd in The history of the transfer provision makes clear that a juvenile judge in a transfer proceeding must weigh relevant statutory and nonstatutory factors in striking the balance for society by transferring the alleged juvеnile offender or in striking the balance for the juvenile by retaining jurisdiction. (People v. M.D. (1984), 101 Ill. 2d 73, 83-84; People v. Taylor (1979), 76 Ill. 2d 289, 299-300.) We believe that a critical nonstatutory element in the instant case is the fact that the defendant allegedly murdered two people, which, upon conviction under the Criminal Code, would result in a mandatory sentence of natural life imprisonment. ( The record before us does not indicate that these two sentencing outcomes were considered. No one at the transfer hearing—not the assistant State‘s Attorney, defense counsel, or the juvenile judge—indicated any awareness that the defendant would be imprisoned for the remainder of his natural life if tried and convicted under the Criminal Code for murdering the Curfmans. Moreover, after defendant‘s transfer for trial under the Criminal Code, the assistant State‘s Attorney and defense counsel entered into a negotiated plea of guilty on two counts of intentional murder in exchange for dismissal of the remaining charges. Defendant‘s plea was presented to and accepted by the trial court without admonishment as to the mandatory sentence of natural life imprisonment. A short while later, defendant‘s plea was withdrawn on motion of the State because of the court‘s failure to give the necessary admonition. Reading the language of This court recently considered the adequacy of a transfer proceeding. In People v. M.D. (1984), 101 Ill. 2d 73, 83-84, the court stated that “[s]ection 2-7(3)(a) of the Juvenile Court Act [citation] lists six factors which the trial court must consider in reaching its decision on whether to prosecute a particular minor as an adult under the criminal laws.” (Emphasis added.) The court then set forth the factors to be considered which, as already noted, include “the previous history of the minor” and “whеther there are facilities particularly available to the Juvenile Court for the treatment and rehabilitation of the minor.” ( We believe that People v. M.D. and People v. Taylor are controlling and require that the juvenile judge receive suffiсient evidence on all statutory factors, including the minor‘s history and the availability of suitable treatment or rehabilitative services. Where the record fails to support the juvenile judge‘s recitation that all statutory factors were considered, there is an abuse of discretion. The record in this case demonstrates that the juvenile judge gave virtually no consideration to the history of the defendant, to the existence of treatment or rehabilitative facilities, or to the amenability of the defendant to treatment or rehabilitation. Instead, the judge received information about three minor encounters with the juvenile authorities, only one of which was supported by The transfer hearing held in this case is stark contrast to the extensive hearings generally held on the State‘s motion for transfer for trial under the Criminal Code. People v. M.D. (1984), 101 Ill. 2d 73, 76-83 (testimony and reports received from the public defender‘s investigator, the juvenile probation officer, a court psychologist, and a psychiatrist); In re R.L.L. (1982), 106 Ill. App. 3d 209, 210-12 (testimony and reports received from supervisor of juvenile probation services of the Department of Children and Family Services regarding availability of treatment services, from Department of Children and Family Services regarding the juvenile‘s early life, from psychiatrists and psychologists); People v. Thomas (1981), 94 Ill. App. 3d 895, 896-97 (testimony and reports received from the juvenile probatiоn officer, from the juvenile‘s teacher, both parents, and a court psychiatrist); People v. Stocks (1981), 93 Ill. App. 3d 439, 443-44 (testimony and reports received from the juvenile‘s counsellor, a juvenile probation officer, and the juvenile‘s mother); People v. Liggett (1980), 90 Ill. App. 3d 663, 665-67 (testimony and reports received from the juvenile probation officer, a clinical psychologist, and a psychiatrist); In re Burns (1978), 67 Ill. App. 3d 361, 365-70 (testimony and reports received from the juvenile probation officer, psychologist, and a psychiatrist); People v. Underwood (1977), 50 Ill. App. 3d 908, 910-11 (“The court considered a detailed survey of the defendant‘s social history which was compiled by the assistant director of court services[] *** [and] considered the adult and juvenile rehabilitation or treatment facilities available for the defendant and the bеnefit that might accrue if those facilities would be used in the instant case“), modified on other grounds (1978), 72 Ill. 2d 124. Viewing the record of the transfer hearing in the instant case in its entirety in light of the language and purpose of the transfer provision and in light of People v. M.D. and People v. Taylor, supra, we conclude that defendant‘s transfer hearing was inadequate. In reaching this conclusion, we do not minimize the seriousness of the offenses for which defendant was charged and, after two trials, ultimately convicted. However, we are unable to ignore the fact that this defendant had no history of violent criminal conduct and, in fact, apparently had For the reasons stated, we reverse the judgments of the appellate court and the circuit court, vacate the order entered by the juvenile judge of Maсon County ordering defendant transferred for trial as an adult under the Criminal Code, and remand the cause for a new trial commencing with a transfer hearing to be conducted in conformity with the views expressed herein. Motion allowed; judgments reversed; order vacated; cause remanded. JUSTICE CUNNINGHAM took no part in the consideration or decision of this case. JUSTICE MILLER, concurring in part and dissenting in part: I agree with the majority that a new transfer hearing should be conducted in this case. Nothing in the record indicates that the trial judge who presided at the original transfer hearing was aware that the defendant would have to be sentenced to a term of natural life imprisonment upon conviction of the charges here. That important information was necessary for the court and parties The majority opinion also holds that the transfer hearing was deficient in two additional respects: that the court failed to investigate the defendant‘s history, “especially as it related to his potential for rehabilitation,” and that the court failed “to investigate the availability of rehabilitative services available for the defendant if he were retained under the jurisdiction of the Act.” (119 Ill. 2d at 16.) I do not believe that the transfer hearing can be faulted on those grounds, and I do not join that part of the majority opinion. The judge heard sufficient evidence regarding the defendant‘s personal history and potential for rehabilitation. All prior encounters with the police were disclosed, and the defendant‘s interview with the juvenile authorities, who inquired into his background, was entered in evidence. Also, the defendant‘s mother testified at the hearing. With respect to the availability of rehabilitative services, the chief juvenile probation officer of Macon County testified at the hearing, and he explained that he was not aware of any resources that would be suitable for the defendant. In reaching that conclusion, the probation officer indicated his knowledge of the criminal offenses with which the defendant could be charged if tried as an adult. I would conclude that an adequate inquiry into those subjects was made at the transfer hearing, and I do not believe that due process required more. In People v. Taylor (1979), 76 Ill. 2d 289, 305, this court stated that the circumstances to be considered by a trial judge at a transfer hearing cannot be assigned rigid weights, nor can the decision be reduced to the certainty of a mathematical formula. Moreover, Taylor noted that ” ‘not all The defendant was charged with the brutal murder of an elderly couple, as well as with robbery, residential burglary, home invasion and aggravated criminal sexual assault. Any one of the charges alone could sustain a decision to transfer; in combination they would provide overwhelming support for that decision when balanced against the alternative of retaining the minor in the juvenile system until he attains the age of 21. It is not evident what further information, apart from that concerning the potential punishment for these offenses, could have been presented at the transfer hearing and would have outweighed the seriousness of these charges. Unlike the majority, then, I do not believe that we may seriously question either the adequacy of the information concerning the defendant‘s personal history, or the chief juvenile probation officer‘s opinion that there were no juvenile programs suitable for this defendant. In suggesting that further inquiry into those matters was necessary, the majority disregards Taylor‘s analysis of the transfer provisions and slights the gravity of the crimes committed here. The significant inquiry in this case concerned the period of incarceration to which the defendant could be sentenced upon conviction. Because there is no indication in the record that the parties and the court were aware that a term of natural life imprisonment would be the required punishment upon a transfer and conviction of the murders, I agree with the majority that a new transfer hearing should be conducted here.