People v. Arnold

• Decision Date: 31 May 2001
• Docket Number: No. 1-99-2007 to 1-99-2009.
• Citation: 323 Ill. App.3d 102,751 N.E.2d 573,256 Ill.Dec. 183
• Court: United States Appellate Court of Illinois
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Alexander ARNOLD, Defendant-Appellant.

751 N.E.2d 573

323 Ill. App.3d 102

256 Ill.Dec. 183

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Alexander ARNOLD, Defendant-Appellant.

Nos. 1-99--99-2009.

Appellate Court of Illinois, First District, Fourth Division.

May 31, 2001.

Rita A. Fry, Cook County Public Defender, Chicago (James N. Perlman, of counsel), for Appellant.

Richard A. Devine, State's Attorney of Cook County, Chicago (Renee Goldfarb, Linda Woloshin, Karen M. Donoso, of counsel), for Appellee.

Justice SOUTH delivered the opinion of the court:

On November 2, 1997, defendant was arrested for robbery and attempted robbery. On November 24, 1997, after a pretrial conference, defendant pled guilty to both offenses. Although defendant never disclosed this information to anyone, he was only 14 years old at this time. On the police report and all other documents, defendant stated that he was 17 years old. Defendant was sentenced to two years of felony probation, 60 days in the Cook County Jail with 23 days credit 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 his parents 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 confinement and 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 On September 17, 1998, defendant's probation was revoked, and he was sentenced to the Cook County Impact Incarceration Program (boot camp).

On October 7, 1998, defendant escaped from boot camp. After he was found and charged with one count of escape, the public defender assigned to his case discovered for the first time that defendant was still a minor. Subsequently, hearings were held and the trial court concluded that 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 escape charge should be prosecuted under the Criminal Code of 1961 (720 ILCS 5/1-1 et seq. (West 1992)) or whether he should be transferred back to juvenile court to be prosecuted under the Juvenile Court Act (Act) (705 ILCS 405/5-4 (West 1992)), and whether his guilty pleas for robbery and attempted robbery should be vacated because of his status as a minor. After hearing arguments from the State and the defense attorney, the court determined that the defendant should be charged for escape as an adult, and that his guilty pleas should not be vacated. On May 11, 1999, defendant was found guilty of escape. He was sentenced to three years incarceration for the robbery charge, one year for the attempted robbery charge, both to run concurrently, and five years for escape, to run consecutively with the other charges.

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

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

When a defendant does not file a timely notice of appeal from an order placing him on probation, we lack jurisdiction to consider errors in the underlying conviction unless such errors render the conviction void. People v. Hall, 55 Ill.App.3d 341, 343, 13 Ill.Dec. 331, 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 that prosecution of a juvenile in adult criminal proceedings without regard to the transfer provisions set forth in the statute renders the disposition voidable rather than void." (Emphasis added.) Hall, 55 Ill.App.3d at 343, 13 Ill.Dec. 331, 371 N.E.2d at 27.

In Hall, the defendant was indicted for armed robbery and several months later filed a motion to dismiss the indictment, raising age as an issue. Hall, 55 Ill. App.3d at 342, 13 Ill.Dec. 331, 371 N.E.2d at 26. The trial court denied the motion to dismiss, but defendant subsequently entered a plea of guilty to robbery and was sentenced to five years probation. Hall, 55 Ill.App.3d at 343, 13 Ill.Dec. 331, 371 N.E.2d at 27. Defendant violated the probation, which was revoked, and was sentenced as an adult to 3 to 9 years in prison. He appealed, stating that the court erred in denying his motion to 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, 13 Ill.Dec. 331, 371 N.E.2d at 26-27.

We held that not only did we lack jurisdiction over the original conviction, but that defendant had "waived consideration of the fact that the statutory transfer procedures under the Juvenile Court Act were not complied with prior to his plea of guilty." Hall, 55 Ill.App.3d at 343-44, 13 Ill.Dec. 331, 371 N.E.2d at 27.

In this case, we lack jurisdiction to consider errors in the underlying conviction for attempted robbery and robbery because defendant did not file a notice of appeal from those orders. Therefore, the trial court did not err in denying defendant's motion to vacate his convictions for robbery and attempted robbery. Even if we were vested with jurisdiction, defendant has waived his right to be tried as a juvenile 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 promptly raised age as an issue. In People v. Gooden, 56 Ill.App.3d 408, 14 Ill.Dec. 36, 371 N.E.2d 1089 (1977), we held that waiver did not apply. In that case, we specifically stated that "Gooden promptly attempted before trial to rectify the situation which had brought him to the criminal court, instead of waiting until after judgment was entered upon a criminal conviction. * * * Gooden did not attempt to take advantage of the court by causing it undue expense and effort; on the contrary, he asserted his right to a juvenile hearing promptly." (Emphasis added.) Gooden, 56 Ill.App.3d at 411-12, 14 Ill.Dec. 36, 371 N.E.2d at 1093.

In People v. G.V., 83 Ill.App.3d 828, 38 Ill.Dec. 950, 404 N.E.2d 374 (1980), we held that waiver did not apply. We reasoned that waiver did not apply because there was "no delay in bringing defendant's correct age to the court's attention," and there were no repeated misrepresentations to the court under oath. G.V., 83 Ill.App.3d at 832, 38 Ill.Dec. 950, 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 a criminal lock-up, convicted of a felony and sentenced." (Emphasis added.) G.V., 83 Ill.App.3d at 832, 38 Ill.Dec. 950, 404 N.E.2d at 377, which we held did not constitute a knowing waiver.

In People v. Nichols, 60 Ill.App.3d 919, 18 Ill.Dec. 330, 377 N.E.2d 815 (1978), another case relied upon by defendant, 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, 18 Ill.Dec. 330, 377 N.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 waived his 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 a defendant's wilful misrepresentation of his age in sworn testimony before the trial court and a failure to attempt to rectify the situation until nearly two months after judgment was entered upon a 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 continually misrepresents his age to the court and police officers and fails to make age an issue until after he is found guilty. In People v. Fox, 258 Ill.App.3d 534, 535-36, 197 Ill.Dec. 82, 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 the trial court found him guilty of the charges," and repeatedly misrepresented his age to the police and 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 be permitted to proceed through adult criminal proceedings then demand a new trial in juvenile court upon an unfavorable outcome." Fox, 258 Ill.App.3d at 536, 197 Ill.Dec. 82, 630 N.E.2d at 1208.

We applied the same reasoning in Henderson, Green and Walker. In Henderson, we held that where a defendant was tried, found guilty and sentenced, and then asserts age as an issue, she has waived her right to be prosecuted under the juvenile act. People v. Henderson, 2 Ill.App.3d 285, 276 N.E.2d 377 (1971). Once again, we reasoned that "[d]efendant should not be allowed to take her chances in the Criminal Division, and upon an adverse outcome, demand reversal and a 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, 60 Ill.Dec. 38, 432 N.E.2d 937 (1982), although we agreed that it is error to initiate criminal proceedings against a defendant without first petitioning the juvenile court, we held that since "defendant never asserted his right to juvenile proceedings to the prosecutor or to the court before trial * * * he has waived any objection to the initiation of criminal proceedings against him." (Emphasis added.) Green, 104 Ill. App.3d at 281, 60 Ill.Dec. 38, 432...