concurring in part and dissenting in part:
As indicated by the majority, my concern in this appeal centers upon the transfer hearing and the impact which section 5—8— 1(a)(1)(c) of the Unified Code of Corrections (Ill. Rev. Stat. 1983, ch. 38, par. 1005—8—1(a)(1)(c)) should have had on the decision made there. As mentioned, in People v. Taylor (1984), 102 Ill. 2d 201, 464 N.E.2d 1059, and People v. Rodriguez (1985), 134 Ill. App. 3d 582, 480 N.E.2d 1147, appeal denied (1985), 108 Ill. 2d 26, this legislation has been held to meet constitutional muster when applied respectively to 16- and 15-year-old juveniles convicted of double murder. However, in those cases, section 2—7(6)(a) of the Juvenile Court Act (Ill. Rev. Stat. 1983, ch. 37, par. 702—7(6)(a)) required that the juveniles be prosecuted criminally for those murder offenses because the juveniles had passed their 15th birthdays at the time of the offenses.
Here, defendant was only 14 years old at the time of the murders. No case has been called to our attention passing upon the application of the severe terms of section 5—8—1(a)(1)(c) where the juvenile is only 14 years of age and criminal prosecution can be taken only after a so-called “transfer” hearing under section 2—7(3) of the Juvenile Court Act (Ill. Rev. Stat. 1983, ch. 37, par. 702—7(3)). At such a hearing, unlike any other proceeding upon which criminal prosecution is preconditioned, the court must consider the best interests of the prospective defendant.
The imposition of a sentence of lifetime imprisonment on a 14-year-old juvenile is an extraordinary matter which requires careful consideration on review. Particularly is this true when the sentence was ultimately imposed by a judge whose discretion in sentencing had been taken away by the terms of section 5—8—1(a)(1)(c). In this case, the sentencing judge could not consider the young age of the defendant. He could not consider that although the evidence indicated defendant’s conduct in the murder of Effie Curfman was vicions and most egregious, his responsibility in the murder of Prentice Curfman appeared to be that imposed by the felony murder rule and, in any event, arose, at most, through accountability. The sentencing judge, who had conducted the trial and heard the witnesses, was not permitted to make his own determination as to the extent that the defendant was coerced or, at least, influenced by Rodney Baltimore, a vicious convicted felon who was a fugitive and was five years older than defendant. In ordinary sentencing hearings, and when the death penalty (Ill. Rev. Stat. 1983, ch. 38, par. 9—1(b)), the imposition of a term of natural-life imprisonment for murder accompanied by aggravating circumstances (Ill. Rev. Stat. 1983, ch. 38, par. 1005—8— 1(a)(1)(b)), or the imposition of an extended-term sentence (Ill. Rev. Stat. 1983, ch. 38, par. 1005—8—2) are being considered, these factors could be considered.
While the previously mentioned legislation preempted the sentencing decision, the decision made at the transfer hearing was not preempted. I conclude that we must examine that decision closely. I recognize that we are doing so with the benefit of hindsight. In this posture, I conclude that certain significant matters were overlooked by all parties at that hearing. These are things that any of us might overlook. Without intending criticism of any person taking part in that hearing and recognizing that in most cases waiver would prevent consideration of these matters on review, I conclude that factors that were overlooked require that we grant some relief to the defendant.
First, unlike the majority, I determine from the record that neither court nor counsel realized at the time of the transfer hearing that section 5—8—1(a)(1)(c) mandated the imposition of a life sentence if defendant was found guilty of both murders. Secondly, the record indicates that no thought was given to the possibility of permitting defendant to be prosecuted for all of the offenses charged except the murder of Prentice Curfman, thus enabling the State to accomplish its stated purpose of retaining control of defendant well beyond his 21st birthday but saving him from exposure to the mandatory requirements of section 5—8—1(a)(1)(c). Finally, even if those matters were considered, I conclude that, under all the circumstances, it was a breach of discretion to subject defendant to the rigors of section 5—8—1(a)(1)(c). Accordingly, I would vacate the life sentence, reverse the conviction for the murder of Prentice Curfman, and affirm all other judgments. I would then remand for sentencing for the murder of Effie Curfman.
In the seminal case of Kent v. United States (1966), 383 U.S. 541, 16 L. Ed. 2d 84, 86 S. Ct. 1045, the United States Supreme Court explained that the possibility of a minor being subject to severe punishment is one of the reasons why a full hearing is necessary before permitting criminal prosecution of a minor. For this reason alone, it is unlikely that the strict provisions of section 5—8—1(a)(1)(c) would have been considered at the transfer hearing and not mentioned when other important factors were discussed. However, my conclusion that the mandatory-life-sentence provision was not considered is based on much more.
The majority notes that both the judge holding the transfer hearing and the probation officer who testified spoke of the introduction of criminal proceedings which would permit retention of control over the minor until after he passes his 21st birthday as being not only in the best interests of the people but also in the best interests of the juvenile. How the best interests of the juvenile would be served by subjecting him to exposure to a mandatory sentence of life imprisonment is hard to fathom. The obvious answer is that the requirement for the mandatory term of life imprisonment is rather obscure and one that anyone of us could overlook if it was not called to our attention. Clearly that is what happened here.
The same thing happened later in the proceedings when defendant entered a plea of guilty to both murder charges. Subsequently, the State confessed error because another sitting judge who accepted the pleas had not admonished the defendant as to the mandatory life sentence. Clearly, defense counsel had not thought of this before or he would not have permitted defendant to enter pleas which would mandate the most severe punishment possible. The State would have been unlikely to participate in the acceptance of pleas that would surely be set aside if it had been aware of the mandated sentence. The fact that everyone overlooked the existence of the special sentencing provision illustrates its obscure nature.
The court has substantial discretion in ruling at a transfer hearing. (People v. Taylor (1979), 76 Ill. 2d 289, 391 N.E.2d 366 (to be distinguished from People v. Taylor (1984), 102 Ill. 2d 201, 464 N.E.2d 1059, which upheld the constitutionality of section 5—8— 1(a)(1)(c)).) However, a lack of knowledge of or consideration for the severity of the punishment to which a juvenile will be exposed upon criminal prosecution is too serious a matter to be disregarded. I cannot presume from this record that the matter was considered, but rather conclude, as a matter of law, that it was not. This alone requires some relief.
We could remand the case to the trial court for a new transfer hearing with directions to that court to then certify its decision to us. Upon receipt of the decision we could enter such judgment as would then be required. This would be awkward because of the after-the-fact nature of the transfer hearing. I need not answer how the matter should be handled because I would hold that relief is required even if section 5—8—1(a)(1)(c) was properly considered.
The record does not give any indication that consideration was given to the possibility of permitting criminal prosecution of some but not all of the charges. Section 2—7(3)(b) of the Juvenile Court Act indicates that this, may be done because it states that when criminal proceedings are undertaken, “the ¡juvenile] petition shall be dismissed insofar as the act or acts involved in the criminal proceedings are concerned.” (Ill. Rev. Stat. 1983, ch. 37, par. 702—7(3)(b).) The majority states that it would be awkward and unworkable to permit a partial prosecution. My answer is that such is not the case where, as here, the conflicting interests of the juvenile and the public can best be served thereby.
We must consider that because the juvenile was only 14 years old at the time of the offenses, despite the outrageous and savage nature of the acts the jury found that he committed, the legislature has provided that Ms best interests must be given some consideration. The focus at the transfer hearing was on the grounds for charging defendant under the criminal law and the need to retain control of him beyond the time limits of the Juvenile Court Act. The court wisely recognized that the latter was necessary. To have turned defendant loose when he reached the age of 21 would have discharged a person who would still be likely to be dangerous and would have deprecated the seriousness of his vicious conduct. No evidence indicated and no statement was made that the public interest required that defendant be incarcerated for the rest of his life. Under these circumstances and further considering the juvenile’s age, the indications that his participation in the murder of Prentice Curfman was indirect and the possible influence on his activities by Rodney Baltimore, I would hold that the court was required to give sufficient weight to the juvenile’s best interests to prohibit prosecution for both murders as that would expose him to the mandatory-natural-life imprisonment provision.
The majority asserts that a judge holding a transfer hearing cannot anticipate which offenses may result in convictions and that allowing prosecution for only some of the offenses charged in the juvenile petition would unduly limit the prosecution. I recognize the problem but would hold that each case must be considered separately in this respect. Here the problem would be minor at most. The information available at the transfer hearing indicated that a conviction of the juvenile for the murder of Prentice Curfman, while he was acquitted of the murder of Effie Curfman, was extremely unlikely. The murder charge against Prentice Curfman was the one to refuse. The tactical advantage to the prosecution in being able to present multiple charges must be recognized. However, it is an advantage that must be sacrificed at times if the best interests of 14-year-olds are to be considered in determining the extent to which they may be prosecuted on criminal charges.
The majority also considers the fact that the juvenile’s guilt of the murder of Prentice Curfman did not arise from his direct act of killing Curfman is not of significance. They are correct in stating that the defendant is not relieved thereby of criminal responsibility for the murder. However, the indirect nature of the conduct of the defendant is a matter which is usually considered in mitigation and would appear to be the type of matter which is of substantial importance in determining the extent of prosecution to be permitted.
I conclude this overlong dissent as I began by repeating my concern with the imposition of a mandatory life sentence on a 14-year-old. I doubt very much if, when the legislature enacted section 5—8— 1(a)(1)(c), it envisioned its mandatory operation against a 14-year-old. By the express terms of the legislation, if defendant had merely held a ladder for Baltimore with the intent to aid him in committing a burglary of the premises and Baltimore murdered both Curfmans, defendant would have been guilty of two felony murders and, if prosecuted criminally, subject to a mandatory life sentence. On this record, the discretion required to be exercised at the transfer hearing should have prevented the mandatory-life-sentencing provision from coming into play. We should not affirm the mandatory life sentence. I propose what I consider to be the fairest possible disposition under the circumstances.