FOURTH DIVISION

May 31, 2001

Nos. 1-99-2007; 1-99-2008; 1-99-2009

(Consolidated)

JUSTICE SOUTH delivered the opinion of the court:

On November 2, 1997, defendant was arrested for robbery and attempted robbery. OnNovember 24, 2997, after a pretrial conference, defendant pled guilty to both offenses. Althoughdefendant never disclosed this information to anyone, he was only 14 years old at this time. Onthe police report and all other documents, defendant stated that he was 17 years old. Defendantwas sentenced to two years of felony probation, 60 days in the Cook County Jail with 23 dayscredit and 60 days of home confinement. He was also ordered to complete high school. Defendant was also a ward of the court as a result of abuse and neglect proceedings against hisparents and had two outstanding delinquency warrants out for his arrest.

On March 18, 1998, the State filed a petition for violation of probation against defendant. While on probation, defendant failed to comply with the court's sentence of home confinementand was arrested for possession of a controlled substance and burglary. On September 17, 1998,defendant's probation was revoked, and he was sentenced to the Cook County ImpactIncarceration Program (boot camp).

On October 7, 1998, defendant escaped from boot camp. After he was found and chargedwith one count of escape, the public defender assigned to his case discovered for the first timethat defendant was still a minor. Subsequently, hearings were held and the trial court concludedthat defendant was in fact a minor and was a minor at the time his guilty plea was entered.

On March 4, 1999, the court held a hearing to determine whether defendant's escapecharge should be prosecuted under the Criminal Code of 1961 (720 ILCS 5/1-1 et seq. (West1993)) or whether he should be transferred back to juvenile court to be prosecuted under theJuvenile Court Act (Act) (705 ILCS 405/5-4 (West 1993)), and whether his guilty pleas forrobbery and attempted robbery should be vacated because of his status as a minor. After hearingarguments from the State and the defense attorney, the court determined that the defendantshould be charged for escape as an adult, and that his guilty pleas should not be vacated. On May11, 1999, defendant was found guilty of escape. He was sentenced to three years incarcerationfor the robbery charge, one year for the attempted robbery charge, both to run concurrently, andfive years for escape, to run consecutively with the other charges.

Defendant raises two issues on appeal: (1) whether his conviction for escape should bevacated pursuant to the Juvenile Court Act; and (2) whether his convictions for attemptedrobbery and robbery should be vacated pursuant to the Juvenile Court Act.

We shall first address the issue of whether defendant's convictions for attempted robberyand robbery should be vacated.

When a defendant does not file a timely notice of appeal from an order placing him onprobation, we lack jurisdiction to consider errors in the underlying conviction unless such errorsrender the conviction void. People v. Hall, 55 Ill. App. 3d 341, 343, 371 N.E.2d 26, 27 (1977). As Hall correctly states, "[People v.] Smith [59 Ill. 2d. 236, 240, 319 N.E.2d 760, 763 (1974)]and [People v.] Henderson [2 Ill. App. 3d 285, 288, 276 N.E.2d 377, 378 (1971)] suggest thatprosecution of a juvenile in adult criminal proceedings without regard to the transfer provisionsset forth in the statute renders the disposition voidable rather than void." (Emphasis added.)Hall, 55 Ill. App. 3d at 343, 371 N.E.2d at 27.

In Hall, the defendant was indicted for armed robbery and several months later filed amotion to dismiss the indictment, raising age as an issue. Hall, 55 Ill. App. 3d at 342, 371N.E.2d at 26. The trial court denied the motion to dismiss, but defendant subsequently entered aplea of guilty to robbery and was sentenced to five years probation. Hall, 55 Ill. App. 3d at 343,371 N.E.2d at 27. Defendant violated the probation, which was revoked, and was sentenced asan adult to 3 to 9 years in prison. He appealed, stating that the court erred in denying his motionto dismiss and that his sentence should be vacated because he did not waive juvenile jurisdiction,and that the criminal court did not have jurisdiction to hear the case. Hall, 55 Ill. App. 3d at 342-43, 371 N.E.2d at 26-27.

We held that not only did we lack jurisdiction over the original conviction, but thatdefendant had "waived consideration of the fact that the statutory transfer procedures under theJuvenile Court Act were not complied with prior to his plea of guilty." Hall, 55 Ill. App. 3d at343-44, 371 N.E.2d at 27.

In this case, we lack jurisdiction to consider errors in the underlying conviction forattempted robbery and robbery because defendant did not file a notice of appeal from thoseorders. Therefore, the trial court did not err in denying defendant's motion to vacate hisconvictions for robbery and attempted robbery.

Even if we were vested with jurisdiction, defendant has waived his right to be tried as ajuvenile for these offenses due to the fact that he has failed to raise age as an issue.

The cases relied upon by defendant can be distinguished because the minors promptlyraised age as an issue. In People v. Gooden, 56 Ill. App. 3d 408, 371 N.E.2d 1089 (1977), weheld that waiver did not apply. In that case, we specifically stated that "Gooden promptlyattempted before trial to rectify the situation which had brought him to the criminal court, insteadof waiting until after judgment was entered upon a criminal conviction. *** Gooden did notattempt to take advantage of the court by causing it undue expense and effort; on the contrary, heasserted his right to a juvenile hearing promptly." (Emphasis added.) Gooden, 56 Ill. App. 3d at411-12, 371 N.E.2d at 1093.

In People v. G.V., 83 Ill. App. 3d 828, 404 N.E.2d 374 (1980), we held that waiver didnot apply. We reasoned that waiver did not apply because there was "no delay in bringingdefendant's correct age to the court's attention," and there were no repeated misrepresentations tothe court under oath. G.V., 83 Ill. App. 3d at 832, 404 N.E.2d at 377. We specifically noted that"within a span of approximately 12 hours, a 15-year-old boy was arrested, held overnight in acriminal lock-up, convicted of a felony and sentenced." (Emphasis added.) G.V., 83 Ill. App. 3dat 832, 404 N.E.2d at 377, which we held did not constitute a knowing waiver.

In Nichols, 60 Ill. App. 3d 919, 377 N.E.2d 815 (1978), another case relied upon bydefendant, we also held that there was no waiver. In that case defendant moved for a mistrial,raising age as an issue, before the jury rendered a verdict. Nichols, 60 Ill. App. 3d at 921, 377N.E.2d at 817.

Finally, the Illinois Supreme Court, in People v. Smith, 59 Ill. 2d 236, 319 N.E.2d 760(1974), stated that based upon the facts of that case, it could not find that the minor had waivedhis rights under the Act. Smith, 59 Ill. 2d. at 240, 319 N.E.2d at 763. Distinguishing Henderson,where we applied waiver, the supreme court reasoned that "the present case does not involve adefendant's wilful misrepresentation of his age in sworn testimony before the trial court and afailure to attempt to rectify the situation until nearly two months after judgment was entered upona criminal conviction." Smith, 59 Ill. 2d. at 240, 319 N.E.2d at 763.

We have consistently applied waiver, however, in cases where the minor continuallymisrepresents his age to the court and police officers and fails to make age an issue until after heis found guilty. In People v. Fox, 258 Ill. App. 3d 534, 535-36, 630 N.E.2d 1206, 1207-08(1994), this district held that where a "defendant did not raise the issue of his age until after thetrial court found him guilty of the charges," and repeatedly misrepresented his age to the policeand his probation officer, he has waived his rights to statutory procedures under the Act. Upholding the trial court's decision to apply waiver, we held that a "defendant will not bepermitted to proceed through adult criminal proceedings then demand a new trial in juvenilecourt upon an unfavorable outcome." Fox, 258 Ill. App. 3d at 536, 630 N.E.2d at 1208.

We applied the same reasoning in Henderson, Green and Walker. In Henderson, we heldthat where a defendant was tried, found guilty and sentenced, and then asserts age as an issue, shehas waived her right to be prosecuted under the juvenile act. People v. Henderson, 2 Ill. App. 3d285, 276 N.E.2d 377 (1971). Once again, we reasoned that "[d]efendant should not be allowedto take her chances in the Criminal Division, and upon an adverse outcome, demand reversal anda new trial in the Juvenile Court." Henderson, 2 Ill. App. 3d at 288, 276 N.E.2d at 378.

In People v. Green, 104 Ill. App. 3d 278, 432 N.E.2d 937 (1982), although we agreed thatit is error to initiate criminal proceedings against a defendant without first petitioning the juvenilecourt, we held that since "defendant never asserted his right to juvenile proceedings to theprosecutor or to the court before trial *** he has waived any objection to the initiation ofcriminal proceedings against him." (Emphasis added.) Green, 104 Ill. App. 3d at 281, 432N.E.2d at 940.

Finally, in Walker we held that due to defendant's repeated misrepresentations to thepolice, and the fact that his minor status "was not brought to the attention of trial court until aftersentence had been pronounced, [the] trial court in criminal division had jurisdiction to hear [the]charge against defendant, even though defendant made no misrepresentation as to his age in courtwhile under oath." People v. Walker, 19 Ill. App. 3d 798, 313 N.E.2d 217 (1974).

In this case, defendant was arrested for robbery and attempted robbery in November1997, and misrepresented his age to arresting officers as being 17 years old. After being assigneda public defender, he had a plea bargaining conference with his attorney and the judge, entered aguilty plea to the offenses and received a sentence of two years felony probation, 60 days in theCook County jail, 60 days home confinement and a mandate to complete his high schooleducation. His age was never raised as an issue. In March 1998, defendant was found to haveviolated probation and was once again arrested. He continued to misrepresent his age to thepolice and to the court. In September 1998, the court sentenced him to adult boot camp. At notime during these hearings did defendant raise age as an issue. In November 1998, defendantescaped from boot camp, and after he was captured, he raised age as a defense for the first time.

Under this set of circumstances, we cannot say that defendant promptly asserted his ageas a defense to being prosecuted under the Criminal Code. Unlike the defendants in Gooden,G.V., Nichols and Smith, defendant waited until a year after he pled guilty, was sentenced in theunderlying offenses, violated probation and was sentenced to adult boot camp, to bring his minorstatus to the attention of the court. Similar to the defendant in Fox, defendant continuallymisrepresented himself as an adult to arresting officers, probation officers and to the court. Therecord indicates that on at least three occasions the trial court judge specifically inquired aboutdefendant's age because he looked young, to which defendant consistently represented that hewas an adult. Based upon the foregoing, we cannot say that the decision of the trial court wasincorrect.

In the cases cited by both parties, the Illinois courts seem to make an importantdistinction between cases in which a defendant promptly raises age as an issue before he isconvicted by a jury at trial, or if a plea has been entered before sentencing or shortly thereafter. The court places great emphasis on the promptness of raising age as an issue and does not lookfavorably upon minors who try to take advantage of the system. The courts almost always applywaiver where defendants continually misrepresent themselves and choose not to raise age as anissue until long after they have been prosecuted as adults.

In Gooden, the court correctly notes that when dealing with minors, courts should indulgeevery reasonable presumption against waiver. Gooden, 56 Ill. App. 3d at 413, 371 N.E.2d at1093. However, the court clearly distinguished the factual situations in Henderson, Walker andSmith, based on the fact that the defendants in those cases "took their chances" in the criminalcourt and did not promptly assert their age prior to judgment being entered on a criminalconviction. Gooden, 56 Ill. App. 3d at 411, 371 N.E.2d at 1091-92.

The second issue we consider is whether defendant's conviction for escape should bevacated pursuant to the Juvenile Court Act.

Whether a person is to be tried in juvenile or criminal court is procedural rather thanjurisdictional. People v. Green, 104 Ill. App. 3d 278, 281, 432 N.E.2d 937, 939-40 (1982). Thejuvenile court is merely a division of the circuit court system, and it is the circuit court which isvested with jurisdiction over all criminal defendants. People v. Nichols, 60 Ill. App. 3d 919, 922,377 N.E.2d 815, 818 (1978). As such, when a defendant raises age as a defense to criminalprosecution, the proper procedure is to transfer the case to the juvenile court. (Emphasis added.) Gooden, 56 Ill. App. 3d 408, 371 N.E.2d 1089.

However, a defendant may waive the right to be tried as a juvenile. Illinois case law hasestablished that waiver can occur if a defendant waives an indictment and pleads guilty incriminal court on the advice of counsel (People v. Shaw, 3 Ill. App. 3d 1096, 279 N.E.2d 729(1972)), if he misrepresents himself as being an adult during testimony (People v. Henderson, 2Ill. App. 3d 285, 288, 276 N.E.2d 377, 378 (1971); People v. Smith, 59 Ill. 2d. 236, 240, 319N.E.2d 760, 763 (1974)), or if he fails to make age an issue (People v. Woods, 78 Ill. App. 3d431, 435, 396 N.E.2d 1204, 1208 (1979); Green, 104 Ill. App. 3d at 281-82, 432 N.E.2d at 940; People v. Washington, 81 Ill. App. 2d 90, 102, 225 N.E.2d 472, 479 (1966)).

Defendant in this case maintains, however, that in order to be charged with the crime of"escape" as an adult, he must either voluntarily elect to be charged as an adult, be transferred toadult criminal court under the mandatory transfer provision or be transferred based upon thediscretion of the judge. Unless the case falls under one of these specific categories, defendantasserts he cannot be tried for escape as an adult under the criminal code. Since there is no actualcompliance with the terms of the statute, defendant argues, he should be transferred back to thejuvenile courts for prosecution. Defendant further maintains that since the crime of "escape" is aseparate charge and conviction, any waiver that might have occurred under the attempted robberyand robbery convictions cannot apply here because he properly raised age as an issue when hewas charged with the crime of escape.

Section 405/5-4(8)(a) states in pertinent part:

"The definition of delinquent minor under Section 5-3 of this Act shall notapply to any minor who is charged with a violation of subsection (a) ofSection 31-6 [escape] *** of the Criminal Code of 1961 *** when theminor is subject to prosecution under the Criminal Code of 1961 as aresult of the application of the provisions of paragraph (a) of subsection(3) [the discretionary transfer statute]; subsection 5 [voluntary election bythe minor to proceed under the terms of the Criminal Code]; paragraph (a)of subsection (6) [a mandatory transfer statute]; or paragraph (a) ofsubsection (7) [another mandatory transfer statute] of this Section. Thesecharges and all other charges arising out of the same incident shall beprosecuted under the Criminal Code of 1961. [720 ILCS 5/1-1 et seq.]."705 ILCS 405/5-4(8) (West 1997) (repealed by Public Act 90-590,effective January 1, 1999).

In this case, the only section that could apply to defendant is subsection (5), his voluntaryelection to proceed under the Criminal Code. Section 405/5-4(5) states:

"(5) If an original petition for adjudication of wardship alleges thecommission by a minor 13 years of age or over of an act that constitutes acrime under the laws of this State, the minor, with the consent of his or hercounsel, may, at any time before commencement of the adjudicatoryhearing, file with the court a motion that criminal prosecution be orderedand that the petition be dismissed insofar as the act or acts involved in thecriminal proceedings are concerned. If such a motion is filed as hereinprovided, the court shall enter its order accordingly." 705 ILCS 405/5-4(5) (West 1997) (repealed by Public Act 90-590, effective January 1,1999).

Therefore, pursuant to the Act, a delinquent minor, who escapes from an adult penal institution,when the court had previously transferred that child to criminal court due to either the judge'sdiscretionary transfer, voluntary transfer by the defendant, or automatic transfer due to the natureof the crimes committed, will be prosecuted under the Criminal Code.

The State argues that the Act does not apply in this case because the statutes relied uponby defendant have no application unless the proceedings began against him in juvenile court. The State's position is that the statutes cited by defendant are normally relied upon in cases thatdeal with the transfer of a minor from juvenile to criminal court. The State maintains thatalthough defendant's case does not fit within the procedural steps outlined in the Act, and the Actdoes not contain a specific provision for transferring a minor to the juvenile court who wasoriginally adjudicated in the adult criminal courts, Illinois courts have consistently relied uponthe Act in situations such as this where a defendant is requesting a transfer from criminal court tojuvenile court.

However, the factual scenario presented in this case is somewhat different from the casescited by both parties on appeal.

Before addressing this issue, however, we will first consider the application of thestatutes relied upon by defendant in this case.

We note that there is no provision under the Act that specifically addresses this factualscenario, and we have found no case exactly on point. As such, not only must we consider thelegislative intent behind the sections relied upon by the defendant but also the legislature's intentbehind drafting the Juvenile Court Act as a whole.

Additionally, we must keep in mind that this statute is not jurisdictional but is aprocedural mechanism created for the benefit of minors. People v. Green, 104 Ill. App. 3d 278,281, 432 N.E.2d 937, 939-40 (1982). The juvenile court system is but a segment of the entirecriminal court system. Illinois courts are in agreement that because the juvenile court system is aprocedural mechanism, the legislature intentionally drafted the Act, not as a mandatoryprovision, but instead as a discretionary provision. Throughout the entire statute, the legislatureemploys permissive verbs like "may" instead of "must," which indicates that their intention wasnot to restrict the discretionary powers of the trial court when presented with a minor who hascommitted a crime.

The reasoning in People v. Brown, 301 Ill. App. 3d 995, 705 N.E.2d 162 (1998), isinstructive on the legislative intent behind the statute's automatic transfer provisions. In thatcase, defendant argued that the trial court erred when it denied his motion to be transferred backto the juvenile court for purposes of sentencing. Brown, 301 Ill. App. 3d at 1005, 705 N.E.2d at170. Defendant argued that since he was only 14 years old at the time of his offense, he was notsubject to the automatic transfer provisions contained in section 5-4(6)(a) and (6)(c)(ii), and thatthe trial court was in error when it determined that it had no discretion to return defendant tojuvenile court or in the alternative to hold a transfer hearing. Brown, 301 Ill. App. 3d at 1006,705 N.E.2d at 170.

We reasoned that the "trial court is not precluded from using its discretion on cases inwhich the automatic transfer provisions do not apply." Brown, 301 Ill. App. 3d at 1006, 705N.E.2d at 171. We found that these provisions were not intended as a means to restrict thediscretionary powers of the trial court, but were enacted to "enhance judicial discretion." (Emphasis added.) Brown, 301 Ill. App. 3d at 1006, 705 N.E.2d at 171. "By allowing the trialcourt discretion to determine whether to transfer the juvenile back to juvenile court, the trialcourt is afforded the opportunity to balance the interests of the community and the minor inreaching a sentencing determination, just as it had an opportunity to balance the interests inreaching a prosecutorial determination." Brown, 301 Ill. App. 3d at 1008, 705 N.E.2d at 171-72.

The same reasoning was employed in People v. Shaw, 3 Ill. App. 3d 1096, 279 N.E.2d729 (1972), 26 years prior. In Shaw, although section 5-4(8)(a) had not been enacted as part ofthe Act, the court's reading of the legislative intent behind the Act as a whole is directly on pointwith the court's reasoning in Brown. We specifically noted that "the language [in the Act] is notexpressed in mandatory terms." Shaw, 3 Ill. App. 3d 1099, 279 N.E.2d at 730. The courtspecifically mentions that section 5-4(5), previously codified as section 702-7(5), uses permissivelanguage such as "if a petition alleges" and "the minor, with the consent of his or her counsel,may." (Emphasis added.) 705 ILCS 405/5-4(5) (West 1997). Additionally, section 5-1,previously codified as section 702-1, states: "Proceedings may be instituted under the provisionsof his Article." (Emphasis added.) 705 ILCS 405/5-1 (West 1997).

The statute, the legislative history behind the statute and case law indicate that the Act isdiscretionary rather than mandatory, and that although a trial court judge does not have the adhoc, unfettered power to impose adult prosecution on a juvenile, the judge may employ hisdiscretion without abuse when a unique factual circumstance is presented that does not squarelyfall under the procedural confines of the Act.

With this legislative history in mind, we shall now address the pertinent issue in this case,namely, whether the prior consistent misrepresentations committed by defendant in his priorconviction for attempted robbery and robbery can constitute waiver for purposes of hissubsequent conviction for escape. The legislative history behind section 5-4(8)(a) is sparse. Theonly comment concerning this particular section was by Representative Munizzi. Insummarizing this amendment to the House of Representatives, Munizzi stated: "Senate Bill 785amends the Juvenile Court Act. It states that a minor who is prosecuted as an adult and escapesfrom a penal institution *** gets treated as an adult." The bill was passed by a vote of 98 infavor and 14 opposed.

Considering the exact language of the Act, section 5-4(8)(a) provides that any minor whois charged as an adult for the crime of escape will not have the benefits of being treated as adelinquent minor pursuant to section 5-3, which is any minor under 17 that violates or attemptsto violate any federal or state law. This section goes on to provide four subsections within whichthe preceding applies, i.e., through voluntary transfer (705 ILCS 405/5-4(5)), mandatory transfer(705 ILCS 405/5-4(6)(a), 5-4(7)(a)), or discretionary transfer (705 ILCS 405/5-4(3)(a)).

However, keeping in mind the discretionary nature of the Act, the fact that sections 5-4(5)and 5-4(8)(a) do not contain restrictive adjectives, such as "only," and case law that specificallyprovides that waiver of the Act can occur, we cannot say that the legislature intended to restrictthe discretionary power of the trial court when faced with the factual scenario presented in thiscase, namely, where a defendant is prosecuted for escape as an adult due to waiver of his rightsto be tried as a juvenile in the underlying offenses. We cannot say that the legislature intendedthat these were the only ways within which a minor could be charged for escape as an adult.

It is true that "courts should indulge every reasonable presumption against waiver"especially when dealing with minors. Gooden, 56 Ill. App. 3d at 413, 371 N.E.2d at 1093. It isalso true that as parens patriae, we must protect those that cannot protect themselves, and thatthe Juvenile Court Act is a codification of the ancient equitable jurisdiction over infants underthat doctrine of parens patriae. People ex rel. Wallace v. Labrenz, 411 Ill. 618, 623-24, 104N.E.2d 769, 773 (1952). However, Illinois courts have continually drawn a distinction betweenminors who need protection because they cannot adequately protect themselves and a "juvenile[who continually and] wilfully misrepresents his age to an adult criminal court [who thereby]waives statutory procedures which inure to juvenile accused of criminal offenses." In re Greene,76 Ill. 2d 204, 214, 390 N.E.2d 884, 888 (1979). Being tried as a juvenile is not a right but abenefit created by the legislature, which can be forfeited if abused. See People v. J.S., 103 Ill. 2d395, 402, 469 N.E.2d 1090, 1094 (1984) (nowhere in the Federal or in this State's constitution isthere found the right to be treated as a juvenile for jurisdictional purposes). Based upon thecourt's continued application of waiver in certain factual circumstances, it is apparent that ajuvenile can forfeit the benefit of a system created specifically for the purpose of protecting him.

Although the paramount concern of the Juvenile Court Act is the welfare of the juvenile,the legitimate interests of the community, being safeguarded from activity sufficiently serious sothat but for the age of the actor a criminal prosecution would result, must also be considered. People v. Felt, 48 Ill. 2d 171, 269 N.E.2d 1 (1971).

In this case, the trial court determined after a hearing on defendant's minor status thatbased upon his continued misrepresentations to law enforcement, parole officers and to the court,he had waived his rights to be tried under the Act, not only for attempted robbery and robbery,but also for the crime of escape. It would be counter-intuitive to presume that defendant's actionpreceding his escape would not be considered during this hearing. Defendant would have neverbeen sentenced to adult boot camp had he not violated probation on those underlying charges. There would have been no charge, conviction or sentence for "escape" from an adult penalinstitution had there not been an underlying crime upon which to sentence defendant to the penalinstitution. Although it is true that defendant was separately charged, convicted and sentencedfor the crime of escape, his conviction is inextricably linked to the events leading up to hiswaiver of the Act for the underlying charges of attempted robbery and robbery.

We find that based upon the facts of this case, defendant has waived his right to beprosecuted under the Act for the charge of escape. Illinois case law is clear that a defendant maywaive the right to be tried in a juvenile court. We find that to be the case here and, therefore, willnot disturb the trial court's decision.

Based upon the foregoing, we affirm the trial court's decision.

Affirmed.

HOFFMAN and BARTH, JJ., concur.