APPEAL from the Circuit Court of Cook County; the Hon. NATHAN
M. COHEN, Judge, presiding.
MR. JUSTICE KLUCZYNSKI DELIVERED THE OPINION OF THE COURT:
This is an appeal by defendant Billy Ray Jones from an order of the circuit court of Cook County dismissing defendant's post-conviction petition after a hearing on the ground that there was no denial of constitutional rights in connection with his conviction of deviate sexual assault. The issues are whether defendant was convicted for an involuntary act arising from his homosexuality and thereby subjected to cruel and unusual punishment in violation of the eighth and fourteenth amendments of the Federal constitution; and whether the trial court's failure to raise sua sponte the issue of the voluntariness of defendant's conduct deprived him of due process of law.
Defendant Billy Ray Jones was indicted for the offense of deviate sexual assault (Ill. Rev. Stat. 1963, ch. 38, par. 11-3,) committed on December 27, 1964. The indictment alleged that he committed certain homosexual acts, including oral copulation, with a 16-year-old boy, and used a knife to force the boy's participation. On May 12, 1965, on the advice of counsel and after being admonished of his rights by the trial court, defendant changed his plea to guilty. He was sentenced to a term of 1 to 14 years in the Illinois State Penitentiary. Defendant filed a pro se petition for relief under the Post-Conviction Hearing Act on January 10, 1967, alleging that his court-appointed counsel had not apprised him of the consequences of his plea of guilty and failed to raise the question of defendant's sanity. The court allowed defendant's motion for the appointment of counsel other than the public defender, and counsel filed an amended petition on August 2, 1967, alleging that defendant was a homosexual, that the acts he pleaded guilty to were involuntary because they resulted from the disease of homosexuality, and, therefore, the punishment was in contravention of the eighth and fourteenth amendments of the Federal constitution. The petition also complained of the incompetency of counsel, the failure of the court to raise on its own motion the issue of the voluntariness of defendant's acts, and other diverse grounds not argued in this court.
On November 29, 1967, a hearing was held on defendant's amended post-conviction petition at which there was testimony by defendant, by a psychiatrist, and by defendant's counsel at the original trial. Defendant testified that he commenced homosexual activity at the age of 10, and continued the practice through the years to relieve tensions. He admitted that his five prior convictions all resulted from his homosexual activity. With respect to the present conviction defendant explained he was angry with a girl friend about a date, went to the bowling alley to find another girl, and while there entered the men's room where he encountered and "propositioned" a 16-year-old boy. They went to defendant's apartment where they engaged in acts of mutual masturbation and oral copulation. Defendant denied he used a knife to force the boy to perform the acts, or that he used violence in any prior homosexual activities, although the indictment to which he had pleaded guilty alleged that the knife was the method of force used. Defendant further stated that he was unable to control his desire to enter into homosexual acts in 1964 or prior years, but can now control himself and does not consider himself a homosexual. He admitted on cross-examination that he understood the nature of the charges against him, understood his counsel, and that his counsel understood him.
The psychiatrist, who examined defendant on three occasions and studied defendant's records, was of the opinion that on December 27, 1964, defendant was a homosexual who used homosexuality as a way of dealing with his problems; that petitioner's acts were "involuntary" because he had no capacity to delay tension or the relief of tension; that he had limited control over impulses, but knows right from wrong and what is appropriate to a social situation.
The assistant public defender, who represented defendant in the trial court, testified that he had over 20 pretrial discussions with defendant, that there was no question in his mind that defendant knew the nature of the charge and was able to co-operate with counsel to the degree of describing full particulars respecting the charge. Counsel also stated that defendant was probably in Menard because of his homosexuality, and that defendant had requested the trial court that he be given psychiatric care in the Illinois prison.
On the basis of all the evidence at the post-conviction hearing defendant's petition was dismissed and he has appealed to this court.
The inquiry in this post-conviction proceeding is limited to whether defendant was denied substantial constitutional rights in connection with his criminal conviction of deviate sexual assault. That crime is defined in the Illinois statutes (ch. 38, pars. 11-2, 11-3,) as follows:
"§ 11-2. Deviate Sexual Conduct.] `Deviate sexual conduct,' for the purpose of this Article, means any act of sexual gratification involving the sex organs of one person and the mouth or anus of another.
"§ 11-3. Deviate Sexual Assault.] Any person of the age of 14 years upwards who, by force or threat of force, compels any other person to perform or submit to any act of deviate sexual conduct commits deviate sexual assault."
Defendant's plea of guilty to the indictment admits the facts charged therein (People v. Milani, 34 Ill.2d 524, 525-526), and the record belies his allegations that he was not properly apprised of the consequences of that plea, in that it shows he was fully advised of his rights by the court, and had competent counsel who conferred with him at length. On this appeal defendant argues, first, that his conduct was involuntary and a manifestation of his disease of homosexuality, and consequently, under the rule promulgated in Robinson v. California, 370 U.S. 660, 667, 8 L.Ed.2d 758, 82 S.Ct. 1417, any punishment for such conduct violates his constitutional rights under the eighth and fourteenth amendments.
In our view neither the evidence in this case, nor the law, supports any such rationale. Defendant's own testimony in no way establishes that his acts were involuntary. The sequence of events the argument with his girl friend, his visit to the bowling alley, his going to the men's room, his leisurely selection and "propositioning" of the boy, their going to defendant's apartment and engaging in various types of deviate sexual behavior hardly creates a picture of compulsive involuntary conduct. Then, too, defendant's testimony that even though he had no psychiatric treatments in prison, he is now cured of his homosexuality and can now control himself, does not suggest an initial conduct of compulsion.
Even if we disregard defendant's less than convincing testimony and accept the furthest reaches of the testimony of the psychiatrist, it in no way establishes that defendant's deviate sexual assault was involuntary, but indicates at most the defendant had limited control of his impulses, and that homosexuality was a pattern of resolving his life's problems. The record is devoid of evidence that defendant was unable to relieve his tensions by any other means, or that his homosexuality was restricted to a deviate form, or that he was unable to control his violence. Furthermore, even if the evidence had established that defendant's deviate sexual assault was in some sense involuntary, the law does not bestow constitutional immunity on such acts.
In Robinson v. California, 370 U.S. 660, 667, relied upon by defendant, the United States Supreme Court held that a California statute making it a crime to be addicted to narcotics even though the person never touched any narcotic drug within the State, or was found guilty of any irregular behavior in the State, inflicted a cruel and unusual punishment in violation of the eighth amendment. The scope of the rule in Robinson was limited in the majority opinion of the United States Supreme Court in Powell v. Texas, 392 U.S. 514, 533, 20 L.Ed.2d 1254, 88 S.Ct. 2145. There the court refused to hold unconstitutional, as imposing cruel and unusual punishment, a Texas statute punishing the crime of public drunkenness. In distinguishing Robinson, the court explained that the California statute was objectionable because it punished a condition without reference to any acts committed in the State, whereas the Texas statute involved in Powell, punished not alcoholism, but the specific act of public drunkenness committed in the State. Moreover, the expansion of Robinson, also advanced by defendant here, which would construe the eighth amendment as prohibiting the punishment for any involuntary act, was also rejected by the court in Powell, which stated at p. 533: "It [Robinson] thus does not deal with the question of whether certain conduct ...