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FIFTH DIVISION

November 20, 1998

No. 1-97-1440

JUSTICE GREIMAN delivered the opinion of the court:

Respondent M.G., a 13-year-old, challenges his adjudication of delinquency and dispositionpursuant to section 5--36 of the Juvenile Court Act of 1987 (commonly known as the ViolentJuvenile Offender Act) (705 ILCS 405/5--36 (West 1996)), for aggravated discharge of a firearm(720 ILCS 5/24--1.2(a)(2) (West 1996)). M.G. argues (1) that the mandatory dispositionprovision of the Violent Juvenile Offender Act violates the United States Constitution and theIllinois Constitution; (2) the State failed to provide sufficient notice of the proceedings to hisfather; and (3) the State failed to provide M.G. with adequate notice of its intent to prosecute himunder the Violent Juvenile Offender Act. We affirm.

On October 15, 1996, a petition was filed for an adjudication of wardship alleging that onOctober 11, 1996, M.G. committed the offense of reckless discharge of a firearm in violation ofsection 24--1.5(a) of the Criminal Code of 1961 (720 ILCS 5/24--1.5(a) (West 1996)). The trialcourt first heard the matter that same day, with M.G. receiving legal representation from theNorthwestern University Legal Clinic. The court questioned M.G. and he identified his mother,who was present in court that day. M.G. identified his father as Albert G. M.G.'s mother addedthat the father was incarcerated, and M.G. indicated that his father was in "Pontiac." The petitionincludes the names of M.G.'s parents but lists Albert G.'s address as "unknown." However, thereis handwriting on the document indicating "Pontiac." The court stated "Mother in court; certifiedmail to father."

At that initial hearing, the State requested leave to amend the petition to include a second countfor aggravated discharge of a firearm. The court then asked M.G. if he understood this count andhe said, "Yes." M.G. waived formal reading of petition.

On October 18, 1996, the court conducted an emergency hearing with only a representative of theState's Attorney's office being present. The State sought leave to file a notice of intent toprosecute M.G. as a violent juvenile offender. The Assistant State's Attorney indicated that hegave notice to M.G.'s attorneys via fax the day before the hearing. The attorney further stated:

"I have spoken to Northwestern Legal Clinic this morning. Sheryl Graves is not in town,and her partner on the case Angela [Coin] is also not in town. I spoke with a Steven Drizin*** and he has faxed a note to me indicating that, in fact, their office was in receipt of theState's motion and notice of motion as of 1:09 p.m. yesterday ***. However, Mr. Drizinalso wanted this Court to be informed that in no way are they at this time concedingwhether the service was proper nor timely, and wanted me to make that representation tothe Court."

There is no indication that M.G. was present or absent from that hearing. The court held thematter over until October 22, 1996.

On October 22, 1996, Angela Coin of the Northwestern University Legal Clinic appeared onbehalf of M.G. She moved to quash the State's notice of intent to file as a violent juvenileoffender. She stated that on the afternoon before the date of the last hearing, the State faxed heroffice the notice. However, the two attorneys and the law students working on the case were notin town that day and did not receive the notice. The trial court denied the motion to quash thenotice. M.G. then moved to dismiss the notice of intent to prosecute the minor as a violentoffender.

On December 4, 1996,⁽¹⁾ the court heard the matter again. At that hearing, the Assistant State'sAttorney stated, "I need to make a record that summons by certified mail was tendered to Albert[G.], the father of the minor respondent. I have received a green card. I'd like to make that ofrecord and put it in the file." There was no objection.

On December 13, 1996, the parties presented argument on the motion challenging theconstitutionality of the Violent Juvenile Offender Act. The court found it constitutional anddenied the motion to dismiss. On January 14, 1997, a jury was selected, and on January 15,1997, the jury heard the testimony of several witnesses. M.G.'s mother was present. The juryfound M.G. delinquent by reason of aggravated discharge of a firearm.

On February 28, 1997, the trial court denied M.G.'s motions for a new trial and judgmentnotwithstanding the verdict. The court then began to conduct a dispositional hearing. The courtrecognized, however, that it had no discretion in selecting the appropriate disposition. The courtstated it could consider evidence but, according to the statute, the disposition would be to commitM.G. to the Department of Corrections regardless of the evidence. The State tendered a verifiedstatement indicating that M.G. was previously adjudicated delinquent for the offense ofaggravated criminal sexual assault, a Class X felony, on March 8, 1996.

The trial court found that M.G. was served with written notice of the intent to prosecute under theViolent Juvenile Offender Act within the statutory time period; he was previously adjudicateddelinquent for the offense of aggravated criminal sexual assault which, had he been an adult,would have been a Class 2 or greater felony involving the use or threat of physical force orviolence on an individual; and he was adjudicated delinquent for the subsequent offense ofaggravated discharge of a firearm which, had he been prosecuted as an adult, would have been aClass 2 or greater felony involving the use or threat of physical force or violence against anindividual. M.G. was adjudicated a violent juvenile offender and committed to the Departmentof Corrections until his twenty-first birthday.

This appeal is a case of first impression calling upon this court to examine the Violent JuvenileOffender Act. M.G. contends that the Violent Juvenile Offender Act's mandatory dispositionprovision violates the Illinois Constitution as well as the due process and equal protection clausesof the United States Constitution.

The Violent Juvenile Offender Act provides in pertinent part:

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