APPEAL from the Circuit Court of Lake County; the Hon. HENRY
H. CALDWELL, Judge, presiding.
MR. JUSTICE DIXON DELIVERED THE OPINION OF THE COURT:
Defendant, James Edwards, and two co-defendants were each indicted on counts of rape and robbery by the Lake County grand jury. Defendant and one of the co-defendants were tried together in a jury trial. The robbery counts were dismissed before the case went to the jury. Verdicts of guilty of rape were returned against defendant and the co-defendant. Defendant was sentenced to 10 to 20 years' imprisonment, and he appeals on the grounds that the Illinois rape statute is unconstitutional, that the trial court erred in failing to conduct a competency hearing sua sponte, that the trial court abused its discretion and violated defendant's right to effective assistance of counsel in refusing defendant a continuance sought on the ground that defendant had retained different counsel, and that the minimum sentence imposed on defendant was excessive.
Defendant had been represented by Mr. Boches, a privately retained attorney from his arraignment on February 2, 1973, until April 9, 1973, the trial date, at which time defendant requested a continuance on the grounds that he had retained another attorney, which continuance was denied. This other attorney had earlier appeared in court to move for a continuance of the instant case, but as he refused to file an entry of appearance the court refused to allow him to make the motion. Other than this one time, this attorney never contacted the court, Mr. Boches, or the State's attorney, though he had been informed by the court that the instant case was up for trial on April 9, 1973.
The attorney for the co-defendant sought a severance of trials, arguing that defendant had changed his defense from consent to denial of having been present at the scene of the rape, which defense would have adverse effects on the co-defendant. This attorney also asserted that defendant refused to cooperate with his attorney. Mr. Boches indicated that he was completely prepared to go to trial and that he had had conversations with defendant. Mr. Boches then brought up defendant's request for a continuance. He stated that he had gotten a call from a woman claiming to be a lawyer's secretary which lawyer had purportedly been engaged by defendant. However, this lawyer had never contacted Mr. Boches or inquired in any way about the case or about a substitution of lawyers.
Defendant then spoke to the court, referring to a lawyer named Holloway. The court and Mr. Boches stated that Holloway had never tried to enter his appearance in the case. The continuance was denied. Defendant next indicated to the court that he refused to elect a defense from those explained to him by Mr. Boches, but then said, "* * * I'm saying I was not there." Mr. Boches indicated that the defense would be a simple denial, putting the State to its proof. The severance was denied and the State put on its case. After the State rested, Mr. Boches indicated that he could produce no testimony helpful to his case and asked defendant if he was in agreement with the advice to simply remain silent. Defendant stated that he did not want to make a statement and "I don't want to say nothing." The defense then rested.
On April 25, 1973, Mr. Boches appeared in court with defendant to receive part of the bond money in payment of his fee. Defendant stated that he did not think he should have to pay Mr. Boches as he had asked for a continuance to get other counsel. The court stated that defendant had had ample time to retain other counsel, but no other attorney filed an entry of appearance.
The evidence adduced at trial indicated that on the evening of November 25, 1972, defendant forced the complainant into a car with himself and two others by threatening to shoot her. They drove awhile, then stopped, at which point the complainant tried to get away, but failed. The complainant was pushed into the back seat. She was menstruating at the time and her sanitary napkin was taken off and thrown outside the car. The complainant was repeatedly raped by the three, defendant, referred to by the complainant as "the mean one," raping her first and last. On the return trip, defendant stayed in the back seat with the complainant, forcing her to keep her sweater pulled up and caressing her. Before the complainant was let out of the car, one of the two in the front seat rifled her purse and defendant took the class ring of the complainant's boy friend, which she was wearing. After begging, the ring was given back. Complainant was told that her assailants had taken a card with her name on it from her purse, and that if she told anyone about the rape they would come after her.
The presentence report showed that defendant was a married man with one child, employed, attended classes in 1969-70 for the "educable mentally handicapped," and had no prior offenses. Defendant was co-operative with the intervening officer but was described as apparently confused and embittered by the result of his trial and the handling of his defense. This report was the only evidence introduced in support of defendant's case at the sentencing hearing. The judge cited as reasons for the sentence, the prolonged nature of the rapes, the persistent pleading with her assailants by the complainant, and the fact that she was finally let out in an unsafe neighborhood. The co-defendant was sentenced to 15 to 30 years' imprisonment "and because of the peculiar background of Mr. Edwards, showing that he definitely is in need of some kind of psychiatric evaluation and treatment, which I'm sure would be helpful in his case, I'm going to sentence him to 10 to 20 years."
The issues on appeal are:
I. Is the Illinois rape statute unconstitutional as a denial of equal protection on the basis of sex, and/or alternatively, has this issue been preserved on appeal?
II. Did the court err in failing to conduct a hearing sua sponte on defendant's fitness to stand trial?
III. Did the trial court abuse its discretion and violate defendant's right to effective assistance of counsel of his choice in denying defendant's motion for a continuance to retain different counsel?
IV. Did the court err in imposing a sentence of the minimum provided by law?
• 1 I. Defendant's assertion of the unconstitutionality of the Illinois rape statute was not raised in the trial court and cannot be raised for the first time on appeal. People v. Amerman, 50 Ill.2d 196; People v. Spooner, 22 Ill. ...