*1 v. Delbert State Plaintiff-Appellee, Ellis, Defendant-Appellant. cons.; 11964-66
(Nos. Fourth February District *2 TRAPP, J., dissenting. McNichols, of Defender of Project, Springfield, appellant. F.
John Greanias, Decatur, Basil Coryell, G. State’s R. Attorney, of (James Assistant State’s of for the Attorney, counsel,) People. the delivered the of Mr. PRESIDING CRAVEN JUSTICE
court: guilty from convictions entered his appeals plea and charge to one two Three concurrent forgery charges burglary. six sentences of not less than two nor more were years imposed. than years offenses in December The here involved were committed October and The relates to the the maker signature forgery charge forging the relate two (1) taking on a check and two burglary charges $5 radios, a a establishment record and in cash from business $140 player Auction, set, as a a known Colonel’s television record (2) taking box residence. guitar, from a player, jewelry private 1954, thus, defendant born in he was August The was old at years at time of the offenses and the time of all the the under here proceedings He the treatment urges 17-year-old review. male adult as an of his right is violative inas- the law at the much time of these 17-year-old proceedings would to the subject Court Act. provisions this The in case pleas guilty originated through plea bargaining after the defendant had been in jail for some 98 days in lieu of bail. negotiation reached was agreement one to the effect that defen- dant would enter pleas guilty ask for probation. matter would be referred officer and probation the State’s Attorney agreed concur in the recommendation of the officer probation with reference to issue of In the probation. event that probation denied, then three be the imposition recommendation of sentences, maxi- a minimum two concurrent each with mum of six years. court in May in circuit officer filed probation report the petition pro- denial of 1972 and that recommended the report in concurred Attorney State’s
bation. At on petition, father, his denial. The defendant recommendation urged Ellis, for probation. William testified in of the petition support At the it that the defendant had been involved hearing, developed at an in the earlier date theft of some had been bicycles as a had County result of a Moultrie delinquency proceeding curfew 1971. The was his criminal foregoing violation ofMay children, thirteen The evidence was that defendant one of record. nine of at with the The father was living whom were still home parents. income then and had been for several months. The unemployed family and income from the Aid to received unemployment compensation health Children The mother is described program. poor Dependent had and an of tuberculosis and suffering stage from diabetes inactive for four months. Three other children of recently been hospitalized had either in criminal or family proceedings been involved delinquency in Macon court observed to County. denying probation, father that: *3 Ellis, in on these we’re always looking passing petitions
“Mr. think on which we will favorable something maybe work, that we that we can it will be grant probation in hope successful. life, us, is much look for what his home things
One of we how he his and here couldn’t have a more get parents, will from we help As far as you than what father picture report miserable shows. winter, to be a failure. You haven’t worked all appear complete ADC, asked about you say off of When you’re living welfare. some, like it is shows a lot you’re drawing pittance report hundred some on ADC two compensa- of money, $338.00 that years, you? had of this boy You haven’t control school he was kicked out of Mt. Zion back in ’69 this shows he 14 then. shows report can when family, you,
You manage your can’t has been to the his younger his brother penitentiary older that in now? are trouble brothers home, be the slightest to wouldn’t your you returned
If he were him, you?” influence bit of good Section ch. 37 of the Act Rev. (Ill. Stat. 702— Juvenile ch. “any who par. 2), boy defines minor delinquent prior 702— to his has birthday birthday 17th or her 18th violated girl who to * * * * * * * * or to law attempted any violate Section Court Act Rev. Stat. (Ill. ch. 702— Juvenile ch. out in par. 7), unless the set provides procedure was under 17 boy years followed: “No who Juvenile or girl who was under 18 at the time alleged * * may be under the criminal laws this state prosecuted offense (Emphasis supplied.) defendant thus female defen argues dant under the exact same facts and those circumstances as existing his case would be afforded the of at least having Court Act followed adult procedure prior to an felon. prosecution different classification said to by age because of sex is be violative equal protection of the laws by section specifically prohibited of article of the 1970 This Illinois Constitution. constitution became effective on July 1971 and is That section reads: fully applicable here. “The equal shall laws not be denied or abridged on account sex the State its units of local government or S.H.A., Const., school districts.” Art. Sec. 18.
The contention of the defendant with reference to unconstitutional classification was considered the Illinois Court in 656. That filed in N.E.2d November 1970 and rehearing denied in 1971. The court in Pardo was January considering validity of the Court Act with reference to the clause of the tiren Illinois Consti tution and upheld the classification as neither nor arbi being invidious but trary within the discretion. legislative in Pardo as his acknowledges holding contrary contentions and
present asserts that new subsequent constitution and that in the subsequent area developments pro- tection as it relates to sex classfication based are such that Pardo no may longer be These controlling. subsequent developments are that the United States Supreme Court Reed v. 92 S.Ct. an invalidated Idaho statute gave mandatory preference to male female with applicants over reference applicants appointment administrators of decedent’s estate. Such held to *4 be violative of the equal Constitu- clause United States
In v. Stanley 645, 551, Illinois 31 (April 1972), 405 L.Ed.2d U.S. United States made held an statute which Illinois umyed fathers children death of the wards
220 the court equal protection, mother unconstitutional. It was a denial of held, to and their to refuse a unmarried fathers as to to fitness fathers that unwed custody children to presume their and In the parents. opposed neglectful unwed mothers are unsuitable or in an York, York case of A of New v. New City appeals court of 33, 83, held 7, 1972, rendered 31 335 N.Y.S.2d July N.Y.2d New males -York between statute that to differentiate purported said: on the basis The court age to be unconstitutional. classes “(3) Discrimination the State between different must, to the least, pur relevance citizens at the some very “have Herold, v. (Baxstrom for which the classification is made/ pose 620; also, see, Stan 107, 760, 763, 383 15 L.Ed.2d Ill. 86 S.Ct. U.S. 551, decided 1208, L.Ed.2d 645, 92 31 ley U.S. S.Ct. v. 1029, 31 438, 1972; Baird, 92 S.Ct. Eisenstadt April 405 U.S. Reed, 404 1972; U.S. L.Ed.2d decided March Reed Dundon, 29 225; S.Ct. Matter Jesmer House, D.C., 308 5, 9; N.Y.2d Old Ale Seidenberg McSorley’s 1253; Cal.Rptr. 5 Cal.3d F.Supp. Inn, Kirby, Sail’er Inc. v. N.Y.S.2d 529; B., Misc.2d 485 P.2d Matter Louise ‘must be differently, 702.) Phrased somewhat ground some rest upon and must reasonable, arbitrary, object relation substantial a fair and having difference shall similarly circumstanced all so that legislation, persons 92 S.Ct. alike. (Reed be treated 254, supra.) rehabilitation the PINS statute is to object provide
(4) of conduct who in the sort young engage treatment persons however, for ground, This affords no reasonable there proscribed. under 18. over between males and females differentiating truancy, are than prone boys Girls bracket no more disobedience, like, nor are more they conduct incorrigible rehabilitation and treatment reason of such conduct.” need of was not alone dis- Court noted that Illinois our males females on the basis of tinguishing purposes between statu- their status Oklahoma and Texas determining juvenile and cited The Oklahoma statutory provision subject tory provisions. review, State, in Lamb v. 475 P.2d the court classifica- upheld the demonstrated facts of life” refused to inter- tion “premised upon fere legislative judgment. Subsequent with opinion, Circuit, Brown, 10th in Lamb v. United States of Appeals, statute and concluded that F.2d declared the unconstitutional there for the justification disparity treatment between males yvasno rational *5 thus age. They of like through 18 females of 16 between the ages the statute. invalidated changed here under review was in Illinois statutory provision has been 702—7 of Corrections section of the new Code
part at age under that no minor who was to provide amended as provided may prosecuted except of the offense alleged time by Such amendment Public Court Act. attack, under classification here effective January time, Oklahoma changed. to Illinois at the has been unique while not Texas is it now statute has changed appears likewise the basis of males and unique distinguishing between attached their status. An purposes determining juvenile appendix all brief the statutory provisions makes reference to appellant’s males of the and the now between distinguishes states and sex is determining by females for status purposes juvenile the State Texas.
Hie the Illinois decision of Supreme in Pardo is determina of the issue and clearly binding tive this court upon the issues upon validity However, classification under the constitution of 1870. subsequent of the new constitution and the specific provision Rights in the Bill of of that constitution of a self-executing prohibition a against denial equal protection of the law on account of sex is now is This clearly addition to the applicable. clause and protection carves out an additional protection. The statutory here under provision a review is denial of equal clearly based a protection the state on account of sex and the same by is invalid unconstitu was, therefore, tional. at least entitled to the procedural Court Act before prosecution an adult. The denial of that and the of such granting protection to female situated similarly defendant amounts to a clearly denial of equal protec This issue was not presented nor ruled upon the trial court and it is held that generally such failure precludes raising the issue the first time upon appeal. (People Amerman, 50 Ill.2d 279 N.E.2d however, are, 353.) There exceptions to that rule which we think are here. Under applicable Supreme Court Rule 615 and predecessor statute with reference to error, plain tins court is permitted to note sub stantial defects or plain errors that affect substantial rights or that relate to fundamental fairness. We do so even if the issue was presented not to and passed upon trial In People court. v. Shelton, 42 Ill.2d 65, the 248 N.E.2d Court noted plea of guilty not preclude inquiry into an asserted violation of constitutional rights. Evans, People N.E.2d the defendant had trial court but claimed that voluntarily guilty entered plea knowingly not have so that he could admonitions were inadequate Evans, a case, as in sub In this waived rights. constitutional intelligently right That is of is involved. stantial defendant right court, under au trial raised in the dimensions and although af error 615 and the doctrine of plain Court Rule thority Weinstein, issue. See we reach the rights, substantial fecting Henderson, 432; People Ill.App.2d Ill.2d 220 N.E.2d 84; 8 Ill.App.3d N.E.2d People McCollough (1972), N.E.2d 505. upon denial imposed note here that sentence
We a penitentiary *6 was a the situation of reflects home the record clearly not succeed. might that probation in the trial court’s determination factor Court We had been instituted under the note that if proceedings options additional dispositional of by way petition, delinquency a determination of upon court would have become available to the trial 2, 37, seq.) et We ch. (See par. Ill. Rev. Stat. delinquency. time the alleged also note that the statute refers “at the offense” of Ill. Rev. time of proceeding. and not at the (emphasis supplied) 1971, ch. 702—7. par. Stat. is reversed and of the circuit court Macon
The judgment County this afford defen cause is remanded to that court with directions to he have had but Act would rights dant those under the Court date of this offense notwith the denial of as of equal protection of the present age defendant. standing directions. Reversed remanded with SIMKINS, concurs. J., dissenting:
Mr.
TRAPP
JUSTICE
be affirmed
upon
authority
The conviction should
v.
Pardo
claim of
265 N.E.2d
In
there was
denial
656.
under the Fourteenth Amendment of
United
equal protection
United
1971, the
States Supreme
States Constitution. On
Court
May
question”.
want of
substantial federal
dismissed Pardo’s appeal “for
Illinois,
158, 91
S.Ct.
(Pardo
2179.)
L.Ed.2d
There is
U.S.
State, Me.,
266 A.2d
similar constitutional
in Wark
history
Court of
a classification between males and
Supreme
Maine held valid
the offense of
females for the
sentence imposed
escape.
purpose
denied,
Thereafter,
(Cert.
255).
L.Ed.2d
S.Ct.
denial of equal protection
habeas
was
corpus based
claim
denial
affirmed in
Wark
denied
the Federal
Court. Such
District
Robbins,
Illinois Constitution of Proceedings 1970. A search of the of the Report Convention reveals no committee or examination the Section report upon no debate thereon. That Constitution in Art. that no provides § person shall be denied due or “the process law”. principle has since the explored of the Fourteenth Amendment of United States Constitution. Section appears Amend- substantially language Fourteenth adopt ment, its presumably meaning. Court said: clause,
“In has applying recognized consistently the Fourteenth Amendment does not the States the deny *7 to treat power different classes of in different persons ways.” I, The Records of Vol. 547 and of the Sixth Proceedings, pages Convention, Illinois Constitutional reveals August Journal that such Art. 18 was first from floor of presented Convention * * the language “Equality under the law *.” motion made and Upon read, adopted, language amended to “The * * law *.” Such action gives reasonable basis for concluding is to “equal protection” be within the applied Art. perimeter established constitutional rather than to history, create new inflexible equality. the infinite breadth
Despite of the spectrum Amendment, clause of the Fourteenth the principal opinion would create a new which could protection” only or at “equal operate independently variance within established constitutional Since history. “equal pro- tection” “equal can cre- protection”, anamoly ated required. is not