APPEAL from the Circuit Court of La Salle County; the Hon.
HOWARD C. RYAN, Judge, presiding.
MR. JUSTICE GOLDENHERSH DELIVERED THE OPINION OF THE COURT:
Petitioner, Bobby Ronald Cox, appeals from the judgment of the circuit court of La Salle County denying relief sought in his petition filed under the provisions of the Post-Conviction Hearing Act. Ill. Rev. Stat. 1969, ch. 38, par. 122-1 et seq.
The record shows that petitioner pleaded guilty to two counts of an information, both of which charged "Indecent Liberties with a Child." (Ill. Rev. Stat. 1965, ch. 38, par. 11-4(a).) In one count the misconduct charged is an act of intercourse (par. 11-4(a)(1)) and in the other an act of deviate sexual conduct (par. 11-4(a)(2)). The trial court, upon acceptance of the pleas of guilty sentenced petitioner on each count, the sentences to run concurrently. The facts are that petitioner, then 27 years of age, took an eight-year-old girl into the bathroom of her home where he committed an act of sexual intercourse and then an act involving oral-genital contact.
Petitioner contends that although either act would constitute the offense of indecent liberties with a child, these acts, which occurred almost simultaneously, at the same place with the same child, constituted one offense performed in two of the three ways enumerated in the statute defining the crime, and cannot constitute two separate crimes. He argues that since there was only one offense the imposition of two concurrent sentences was error.
Petitioner admits that this contention was neither presented to nor considered by the trial court, but argues that this court, under the provisions of Rule 615(a), should notice the matter as plain error. In our prior opinion (as to which rehearing was allowed), in rejecting this contention, we said, "Assuming, arguendo, that on appeal from the judgment of conviction this were `plain error,' in this proceeding it does not present the substantial denial of constitutional rights requisite to post-conviction relief."
In his petition for rehearing petitioner pointed out that People v. Whittington, 46 Ill.2d 405, involved a post-conviction proceeding, and we note that in People v. Russo, 52 Ill.2d 425, also a post-conviction appeal, we treated the matter of improper concurrent sentences as being of sufficient constitutional substance to be cognizable in a post-conviction proceeding. In view of these decisions we notice the matter here as plain error.
Although we have many times considered the matter of multiple concurrent sentences, the questions in those cases differ significantly from the question presented here. The statute upon which petitioner's convictions are based provided:
"Sec. 11-4. Indecent Liberties with a Child.
(a) Any person of the age of 17 years and upwards who performs or submits to any of the following acts with a child under the age of 16 commits indecent liberties with a child:
(1) Any act of sexual intercourse; or
(2) Any act of deviate sexual conduct; or
(3) Any lewd fondling or touching of either the child or the person done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child or the person or both." Ill. Rev. Stat. 1965, ch. 38, par. 11-4.
The sentences imposed upon petitioner stemmed from two counts based upon a single transaction, charging two acts almost simultaneous in time and involving a single victim, each of which acts was one of the three proscribed by the statute. In contrast to the present situation, although in the cases hereafter enumerated the charges arose from a single transaction, involving in some instances the same property, in others the same victim, and in Duszkewycz a single act of intercourse with the same victim, the sentences imposed were for violation of more than one section of the Criminal Code and the conduct charged constituted more than one offense. People v. Schlenger, 13 Ill.2d 63, involved convictions for armed robbery and grand larceny; People v. Squires, 27 Ill.2d 518, burglary and larceny; People v. Duszkewycz, 27 Ill.2d 257, forcible rape and incest; People ex rel. Starks v. Frye, 39 Ill.2d 119, two reckless homicides in the same automobile collision; People v. Scott, 43 Ill.2d 135, a single unlawful entry with the intent to commit three separate crimes; People v. Johnson, 44 Ill.2d 463, burglary and rape; People v. Stewart, 45 Ill.2d 310, attempted robbery and aggravated battery; People v. Whittington, 46 Ill.2d 405, theft and escape; People v. Lerch, 52 Ill.2d 78, attempted escape and aggravated battery; People v. Russo, 52 Ill.2d 425, attempted escape and aggravated battery.
Counsel has not cited, nor have we found a reported decision involving a factual situation identical to that in this case. Some guidance is found, however, in Bell v. United States, 349 U.S. 81, 99 L.Ed. 905, 75 S.Ct. 620, and Castle v. United States, 368 U.S. 13, 7 L.Ed.2d 75, 82 S.Ct. 123. In Bell the defendant pleaded guilty to two counts charging violations of the Mann Act (18 U.S.C. § 2421), each referring to a different woman. The transportation was effected in the same vehicle, on the same trip. The trial court imposed consecutive sentences and the Court of Appeals affirmed (6th cir.), 213 F.2d 629. The Supreme Court reversed stating that "if Congress does not fix the punishment for a federal ...