                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court



                           People v. Markley, 2013 IL App (3d) 120201




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    MEAGAN M. MARKLEY, Defendant-Appellant.



District & No.             Third District
                           Docket No. 3-12-0201


Rule 23 Order filed        December 12, 2012
Motion to publish
allowed                    January 31, 2013
Opinion filed              January 31, 2013


Held                       Two counts of aggravated reckless driving were properly filed against
(Note: This syllabus       defendant, who was 16 at the time, and on appeal from her conviction and
constitutes no part of     sentence to 24 months’ imprisonment, the appellate court rejected her
the opinion of the court   contention that the concurrent jurisdiction statute unconstitutionally
but has been prepared      prohibited the trial court from considering her youth before transferring
by the Reporter of         the case to adult court and subjected her to adult sentencing, since the
Decisions for the          statute is rationally based on the adult nature of offenses allowed to be
convenience of the         prosecuted in adult court, it did not violate her eighth amendment rights
reader.)
                           or the proportionality clause, and the sentence was supported by the trial
                           court’s conclusion that the deaths of two passengers as a result of
                           defendant’s reckless conduct required “more than a slap on the hand.”


Decision Under             Appeal from the Circuit Court of Fulton County, No. 11-CF-14; the Hon.
Review                     William C. Davis, Judge, presiding.


Judgment                   Affirmed.
Counsel on                  Anthony W. Vaupel, of Barash & Everett, LLC, of Galesburg, for
Appeal                      appellant.

                            John Clark, State’s Attorney, of Lewistown (Terry A. Mertel and Mark
                            A. Austill, both of State’s Attorneys Appellate Prosecutor’s Office, of
                            counsel), for the People.


Panel                       JUSTICE McDADE delivered the judgment of the court, with opinion.
                            Presiding Justice Wright and Justice Schmidt concurred in the judgment
                            and opinion.


                                               OPINION

¶1          Defendant, Meagan M. Markley, was convicted of two counts of aggravated reckless
        driving (625 ILCS 5/11-503(a)(1) (West 2010)) and sentenced to 24 months’ imprisonment.
        On appeal, defendant argues that: (1) the trial court erred in failing to dismiss the matter or
        transfer it to the juvenile court; (2) the concurrent jurisdiction statute violates the federal and
        state constitutions; (3) the trial court erred in convicting her of aggravated reckless driving;
        and (4) her sentence was an abuse of discretion. We affirm.

¶2                                                FACTS
¶3          On January 7, 2011, the State charged defendant by information with two counts of
        aggravated reckless driving (625 ILCS 5/11-503(a)(1) (West 2010)). The charges were filed
        in Fulton County criminal court. At the time of charging, defendant was 16 years of age.
        Defendant filed a motion to dismiss or transfer the case to the juvenile court. The trial court
        denied her motion, and the case proceeded to a stipulated bench trial.
¶4          The parties stipulated that on April 3, 2010, defendant was driving her vehicle on Roberts
        Road in Fulton County, Illinois. Levi Sloan, Anissa Morgan, and Rachel Anderson were
        passengers in the vehicle. The posted speed limit was 55 miles per hour, and defendant was
        driving between 80 and 115 miles per hour. Defendant lost control of the vehicle and crashed
        into a utility pole. The Illinois state police identified a “slight dip” in the road near the point
        where defendant lost control of the vehicle. Toxicology reports confirmed that defendant did
        not have drugs or alcohol in her system, and witness statements and information subpoenaed
        from Verizon Wireless confirmed that defendant was not distracted by cellular telephone use.
        Anissa Morgan and Rachel Anderson died as a result of injuries they sustained in the crash.
        In a police interview, defendant admitted that Anderson liked the “butterfly feeling as they
        went over little dips in the road.” Sloan told police that defendant was “not going super-fast,”
        but the front wheels of defendant’s vehicle came off the ground as they went over a rise near
        Seven Hills Road. Thereafter, defendant swerved to stay out of a ditch and lost control of the
        vehicle.

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¶5          After arguments on the stipulation, the trial court found that defendant operated her
       vehicle in excess of 100 miles per hour on a secondary rural road that was not designed for
       high-speed travel. Defendant lost control of her vehicle after hitting a pothole. The court
       stated that although there was no evidence that defendant was familiar with the road, even
       if she had been familiar with the road and its defects, her act of driving over 100 miles per
       hour constituted reckless driving. Alternatively, if defendant was unfamiliar with the road,
       she would not know what dangers or defects lay ahead and this, too, constituted reckless
       driving. The court convicted defendant of two counts of aggravated reckless driving.
¶6          Before pronouncing defendant’s sentence, the court stated that it had considered all of
       the evidence. The court went through the statutory factors in aggravation, noting that (1)
       defendant’s conduct caused or threatened serious harm, (2) the sentence was necessary to
       deter others from committing the same offense, and (3) defendant committed the offense of
       aggravated reckless driving and was operating a motor vehicle in excess of 20 miles per hour
       over the posted speed limit. See 730 ILCS 5/5-5-3.2(a)(1), (7), (21) (West 2010). The court
       found that the second factor in mitigation, i.e., that “defendant did not contemplate that [her]
       criminal conduct would cause or threaten serious physical harm to another,” did not apply.
       730 ILCS 5/5-5-3.1(a)(2) (West 2010). However, it found in mitigation that: (1) defendant
       did not have a history of prior delinquency or criminal activity, and she led a law-abiding life
       for a substantial period of time before committing the present crime; (2) defendant’s
       character and attitude indicated that she was unlikely to commit another crime; and (3)
       defendant was particularly likely to comply with the term of a period of probation. See 730
       ILCS 5/5-5-3.1(a)(7), (8), (10) (West 2010). The court noted that a young person generally
       gets a more lenient sentence; however, defendant’s first criminal offense was so serious that
       her sentence required “far more than a slap on the hand.” The court sentenced defendant to
       28 months’ imprisonment in the Department of Corrections. Defendant filed a motion to
       reconsider sentence, and the court amended defendant’s sentence to 24 months’
       imprisonment. Defendant appeals.

¶7                                           ANALYSIS
¶8                                          I. Jurisdiction
¶9         Defendant argues that Illinois law required that her case be filed in the juvenile court.
       Defendant contends that the Juvenile Court Act of 1987 (Act) (705 ILCS 405/1-1 et seq.
       (West 2010)), requires that a minor facing jail time must receive the protections of the Act.
       See People v. Sims, 104 Ill. App. 3d 55 (1982). As defendant’s offense was punishable by
       a prison sentence, defendant concludes that it should have been prosecuted in the juvenile
       court.
¶ 10       Defendant’s first issue presents a question of law, which we review de novo. People v.
       Bradley M., 352 Ill. App. 3d 291 (2004). The Act provides that minors may be prosecuted
       in adult criminal court for certain matters. Specifically, section 5-125 of the Act (hereinafter
       the concurrent jurisdiction statute) provides:
           “Any minor alleged to have violated a traffic, boating, or fish and game law, or a
           municipal or county ordinance, may be prosecuted for the violation and if found guilty

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            punished under any statute or ordinance relating to the violation, without reference to the
            procedures set out in this Article, except that any detention, must be in compliance with
            this Article.” 705 ILCS 405/5-125 (West 2010).
       This version of the statute became effective on January 1, 1999. Pub. Act 90-590 (eff. Jan.
       1, 1999) (amending 705 ILCS 405/5-125).
¶ 11        We find that the plain language of the statute provides prosecutors with the discretion to
       file a minor’s traffic offense in either juvenile court or adult traffic court. We are not
       persuaded by defendant’s argument that offenses punishable by a prison sentence should be
       tried solely in juvenile courts.
¶ 12        Defendant relies on Sims in support of her claim. The statute at issue in Sims read: “any
       minor alleged to have committed a traffic, boating or fish and game law violation or an
       offense punishable by fine only may be prosecuted therefor and if found guilty punished
       under any statute or ordinance relating thereto, without reference to the procedures set out
       in this Act.” (Emphasis added.) Ill. Rev. Stat. 1979, ch. 37, ¶ 702-7(2). The Sims court
       interpreted the language, “or an offense punishable by fine only” as modifying the preceding
       language and permitting criminal prosecution of a minor charged with a traffic violation if
       punishable by only a fine. Sims, 104 Ill. App. 3d at 56. In People v. Folkers, 112 Ill. App. 3d
       1007 (1983), this court disagreed with the Sims interpretation. We held that “it was the intent
       of the legislature to provide that minors *** may be prosecuted for either an offense which
       is punishable by fine only or for any violation of the laws listed in the statute.” Folkers, 112
       Ill. App. 3d at 1009. Although the “offense punishable by fine” language was removed from
       the current version of the statute, we reaffirm our holding in Folkers.
¶ 13        Since the Folkers and Sims cases, the legislature has amended the expressed purpose of
       the Act. The amendment provides further support for our conclusion. In Sims, the court
       reasoned, in part, that the purpose of the Act was “not to punish minors but to correct.” Sims,
       104 Ill. App. 3d at 56; Ill. Rev. Stat. 1979, ch. 37, ¶ 701-2. From this purpose, the court was
       unable to discern a rationale or intent by the legislature that minors accused of traffic
       offenses punishable by imprisonment “should not be afforded the same protections and
       safeguards as minors charged with other criminal offenses.” Sims, 104 Ill. App. 3d at 56. In
       the 1998 amendments to the Act, the legislature expressed four purposes: (1) protect citizens
       from juvenile crime; (2) hold each juvenile offender directly accountable for his or her acts;
       (3) provide an individualized assessment of each alleged and adjudicated delinquent juvenile
       in order to rehabilitate and to prevent further delinquent behavior; and (4) provide due
       process to ensure each juvenile offender and all other interested parties are assured fair
       hearings at which legal rights are recognized and enforced. 705 ILCS 405/5-101(1)(a) to (d)
       (West 2010). Unlike the earlier version of the Act reviewed in Sims, the legislature
       emphasized the importance of juvenile accountability and the need to rehabilitate the
       offender. 705 ILCS 405/5-101 (West 2010). As defendant was charged with an act
       enumerated under the concurrent jurisdiction statute, we find that it was the intent of the
       legislature that, should the prosecutor so charge, defendant answer to an adult level of
       accountability. See Folkers, 112 Ill. App. 3d 1007 (comparing the offenses covered under
       the concurrent jurisdiction statute to civil negligence actions where minors engaged in adult
       activities were generally held to an adult standard of care).

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¶ 14        We conclude that the legislature intended to except certain activities from prosecution
       as a juvenile matter under the Act. To this end, the legislature endowed prosecutors with the
       discretion to file traffic, boating, fishing and game law, and ordinance violations in juvenile
       court or in adult criminal court. Here, the State exercised its discretion to file charges against
       defendant in adult court, and the trial court correctly concluded that it did not have discretion
       to transfer the case to the juvenile court.

¶ 15                  II. Constitutionality of the Concurrent Jurisdiction Statute
¶ 16        Defendant argues that the concurrent jurisdiction statute violates her due process rights,
       the eighth amendment of the United States Constitution, and the proportionality clause of the
       Illinois Constitution. U.S. Const., amend. VIII; Ill. Const. 1970, art. I, § 11. Defendant
       contends that the statute did not permit the court to consider her youthfulness before her case
       was transferred to adult court. See Kent v. United States, 383 U.S. 541 (1966). According to
       defendant, the statute is ambiguous because it provides that a minor “may be prosecuted”
       without reference to the Act. 705 ILCS 405/5-125 (West 2010). Defendant also contends that
       the concurrent jurisdiction statute improperly subjects juvenile offenders to adult sentencing
       without consideration of their youthfulness. See Graham v. Florida, 560 U.S. ___, 130 S.
       Ct. 2011 (2010); Roper v. Simmons, 543 U.S. 551 (2005).
¶ 17        We review questions concerning the constitutionality of a statute de novo. People v.
       Sharpe, 216 Ill. 2d 481 (2005).
¶ 18        Initially, we note that our supreme court has ruled that the concurrent jurisdiction statute
       does not violate a minor’s equal protection or due process rights. City of Urbana v. Andrew
       N.B., 211 Ill. 2d 456 (2004). However, the court’s due process holding in that case
       specifically addressed a juvenile’s due process right to counsel. Id. In City of Champaign v.
       Montrell D.H., 336 Ill. App. 3d 558 (2003), rev’d on other grounds, Andrew N.B., 211 Ill.
       2d 456, the court held that the concurrent jurisdiction statute, generally, did not violate a
       minor’s procedural due process rights. Consequently, the issue presented here, i.e., whether
       the concurrent jurisdiction statute violates a minor’s due process right to have her
       youthfulness considered before her case is transferred to an adult court, is a question of first
       impression.
¶ 19        In Kent, 383 U.S. 541, the Supreme Court reviewed a provision of the District of
       Columbia juvenile court act that allowed its juvenile courts to waive jurisdiction if a juvenile
       was 16 years of age or older and she was charged with an offense that would amount to a
       felony if an adult were charged with the same offense. The Court found that the statute
       violated procedural due process because it gave the “Juvenile Court a substantial degree of
       discretion as to the factual considerations to be evaluated, the weight to be given them and
       the conclusion to be reached.” Kent, 383 U.S. at 553.
¶ 20        We find that the Kent holding is inapplicable to the present case. In support, we note that
       our supreme court held in People v. J.S., 103 Ill. 2d 395 (1984), that Kent does not apply to
       the automatic transfer provision of the Act (Ill. Rev. Stat. 1983, ch. 37, ¶ 702-7(6)) because,
       unlike the statute at issue in Kent, the automatic transfer provision does not grant the court
       discretion to transfer juveniles to adult court if they have committed one of the enumerated

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       offenses.
¶ 21       In J.S., the court applied the “rational basis” test to evaluate whether the automatic
       transfer provision of the Act comported with a juvenile’s substantive due process guarantee.
       J.S., 103 Ill. 2d 395. Under the rational basis test, a statutory provision passes constitutional
       challenge if it is rationally related to a legitimate state interest. Id. The court held that the
       automatic transfer provision was rationally related based on the age of the offender and the
       threat posed by the offense to the victim and the community because of its violent nature and
       frequency of commission. Id.
¶ 22       Applying the rational basis test to the concurrent jurisdiction statute, we find that the
       statute was rationally based on the adult nature of the enumerated categories of offenses, the
       threat posed by the offenses, and the frequency of commission. The statute does not grant the
       court discretion to transfer juvenile cases; rather, the legislature’s use of “may” provides
       prosecutors with discretion to file traffic, boating, fish and game law, or ordinance violations
       in adult court. This is consistent with prosecutors’ broad discretion to decide whether to file
       charges, and which charges to file. See People v. Peterson, 397 Ill. App. 3d 1048 (2010).
       Thus, we conclude that the concurrent jurisdiction statute does not violate a juvenile’s due
       process rights and is not ambiguous.
¶ 23       Finally, defendant cites the United States Supreme Court’s Graham and Roper decisions
       for the proposition that it is not rational to exclude minors from juvenile court without a
       hearing and where there is not a penological justification for adult sentencing practices to
       apply. We are unpersuaded. In Graham, 560 U.S. ___, 130 S. Ct. 2011, the Court held that
       the eighth amendment prohibited the imposition of a sentence of life without parole on a
       juvenile offender. In Roper, 543 U.S. 551, the Court held that the imposition of a death
       sentence for a defendant who committed a capital crime before the age of 18 was prohibited
       by the eighth amendment. The Graham and Roper decisions reviewed the constitutionality
       of sentencing statutes. People v. Salas, 2011 IL App (1st) 091880. Here, defendant
       challenges a statute which vests prosecutors with the discretion to charge certain crimes as
       either adult or juvenile offenses. Therefore, we find the Graham and Roper reasoning to be
       inapplicable.
¶ 24       To the extent defendant was subject to adult sentencing via the concurrent jurisdiction
       statute, we find that her sentence was less severe and more proportional to the offense
       defendant was convicted of than the sentences in Graham and Roper. We conclude that
       defendant has not demonstrated that the concurrent jurisdiction statute violated her eighth
       amendment rights or the proportionality clause of the Illinois Constitution.

¶ 25                                      III. Conviction
¶ 26        Defendant argues that the trial court erred in convicting her of aggravated reckless
       driving where the physical acts of the offense and requisite mental state were derived solely
       from the speed at which she operated her vehicle.
¶ 27        We review the issue de novo because the facts are not in dispute. People v. Smith, 191
       Ill. 2d 408 (2000). To be convicted of aggravated reckless driving, the State must prove that
       defendant drove her vehicle with willful or wanton disregard for the safety of persons or

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       property and the violation resulted in great bodily harm to another. 625 ILCS 5/11-503 (West
       2010). Reckless driving cases fall into three general categories: (1) the commission of
       multiple traffic offenses which together demonstrate the driver’s willful and wanton
       disregard for the safety of persons and property; (2) a driver’s conscious disregard for the
       particular surroundings and circumstances that rises to the level of willfulness and
       wantonness; and (3) where willful and wanton conduct is based, in part, upon the driver’s
       intoxication or impaired state. People v. Paarlberg, 243 Ill. App. 3d 731 (1993).
¶ 28       Although we agree with defendant that speed alone is not always sufficient to sustain a
       conviction for reckless driving, speed combined with other circumstances which indicate a
       conscious disregard of a substantial risk likely to cause death or great bodily harm to others
       is sufficient. See People v. McDermott, 141 Ill. App. 3d 996 (1985). Here, the stipulation
       admitted that defendant drove between 80 and 115 miles per hour on a road in Fulton County
       with a posted speed limit of 55 miles per hour. Prior to the accident, Sloan stated, defendant
       and the passengers were driving in the country and they were headed into town. Sloan stated
       that the front wheels came off the ground as defendant’s vehicle crossed over Seven Hills
       Road, and the Illinois State Police identified a slight dip in the road near the point where
       defendant lost control of the vehicle. Defendant’s excessive speed, combined with the
       location and road condition facts, established a conscious disregard for her surroundings. As
       noted by the trial court, either knowledge or lack of knowledge about the road condition,
       combined with her excessive speed, would suffice to demonstrate the necessary mental state
       for her conviction. Further, it is undisputed that defendant’s actions caused great bodily harm
       and death to Morgan and Anderson. Therefore, we conclude that the trial court’s judgment
       of conviction was not error.

¶ 29                                        IV. Sentence
¶ 30        Finally, defendant argues that her sentence is an abuse of discretion because she was 16
       years old at the time of the incident, she did not have a prior criminal history, and she was
       sentenced to serve 24 months’ imprisonment in the Department of Corrections.
¶ 31        A trial court has wide discretion in sentencing a criminal defendant, and we review the
       trial court’s sentencing decision for an abuse of discretion. People v. Sweeney, 2012 IL App
       (3d) 100781. A sentence which falls within the statutory range is not an abuse of discretion
       unless it is manifestly disproportionate to the nature of the offense. People v. Jackson, 375
       Ill. App. 3d 796 (2007).
¶ 32        As we have noted, defendant was charged with aggravated reckless driving, a traffic
       offense, in criminal court. Aggravated reckless driving is a Class 4 felony (625 ILCS 5/11-
       503(c) (West 2010)) punishable by a sentence of not less than one year and not more than
       three years’ imprisonment (730 ILCS 5/5-4.5-45(a) (West 2010)).
¶ 33        We are neither oblivious nor unsympathetic to the defendant’s unfortunate background,
       the many good and responsible actions in her life, and her dedicated pursuit of laudable
       goals. Nevertheless, after reviewing defendant’s sentencing hearing, we cannot say that the
       sentence imposed was an abuse of the trial court’s discretion. First, the trial court noted that
       it considered all of the evidence, documents, and exhibits. Second, the court addressed the

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       applicable factors in aggravation and mitigation. Defendant takes issue with the court’s
       finding that the second factor in mitigation, i.e., that defendant did not contemplate that her
       conduct would cause serious harm, did not apply. 730 ILCS 5/5-5-3.1(a)(2) (West 2010). We
       find no error in this regard, as there was a great level of risk apparent in defendant’s conduct.
       Defendant’s sentence of 24 months’ imprisonment was in the middle of the sentencing range.
       Finally, we note that the trial court expressed concern that the offense was so serious that it
       required a sentence that was “far more than a slap on the hand.” The court was correct in so
       finding, as defendant’s conduct resulted in the deaths of two young people. Therefore, we
       conclude that defendant’s sentence was not an abuse of discretion.

¶ 34                                      CONCLUSION
¶ 35       For the foregoing reasons, the judgment of the circuit court of Fulton County is affirmed.

¶ 36       Affirmed.




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