Appeal from the Appellate Court for the Third District; heard
in that court on appeal from the Circuit Court of La Salle
County; the Hon. John S. Massieon, Judge, presiding.
MR. JUSTICE KLUCZYNSKI DELIVERED THE OPINION OF THE COURT:
This is an appeal from a judgment of the Appellate Court for the Third District which affirmed an order of the circuit court of La Salle County dismissing a post-conviction petition (Ill. Rev. Stat. 1971, ch. 38, par. 122-1 et seq.) filed by defendant, Dale Grammer. Defendant's conviction resulted from a plea of guilty to a charge of aggravated incest for which he was sentenced to a term of 2 to 10 years in the penitentiary. On appeal to the appellate court he abandoned the issues initially raised in his post-conviction petition and for the first time challenged the constitutionality of the aggravated incest statute (Ill. Rev. Stat. 1969, ch. 38, par. 11-10). The appellate court affirmed the judgment of the circuit court on the basis that defendant had waived the issue of the statute's constitutionality by failing to raise it at his trial or in his first post-conviction petition. (People v. Grammer (1974), 24 Ill. App.3d 648.) We granted defendant leave to appeal in which he contests the correctness of the appellate court judgment and argues that the aggravated incest statute denies him equal protection of the law under the Illinois Constitution of 1970 and the fourteenth amendment to the Federal Constitution.
On April 13, 1970, defendant was indicted on two counts of aggravated incest resulting from acts of deviate sexual conduct which he allegedly performed with his natural daughter. He entered a not guilty plea to both counts on June 2, 1970, but subsequently withdrew this plea and pleaded guilty to one count. The second count was dismissed on a motion by the State, and defendant was sentenced on September 21, 1970. No direct appeal of this conviction was taken. Defendant's post-conviction petition was filed on February 18, 1972. During oral argument before this court, counsel for defendant indicated that the defendant was paroled from prison on November 2, 1975, after having served 5 years of his sentence.
While disposition of this matter may be correctly made on the basis of waiver by defendant's failure to properly raise his constitutional challenge, nevertheless we believe that it is appropriate to resolve the constitutional issue raised by defendant.
Defendant maintains that the aggravated incest statute denied him equal protection of the law because it arbitrarily discriminated against him on the basis of sex. The pertinent statutes provided:
(a) Any male person who shall perform any of the following acts with a person he knows is his daughter commits aggravated incest:
(1) Has sexual intercourse; or
(2) An act of deviate sexual conduct.
(b) `Daughter' for the purposes of this Section means a blood daughter regardless of legitimacy or age; and also means a step-daughter or an adopted daughter under the age of 18.
A person convicted of aggravated incest shall be imprisoned in the penitentiary from 2 to 20 years." Ill. Rev. Stat. 1969, ch. 38, par. 11-10.
(a) Any person who has sexual intercourse or performs an act of deviate sexual conduct with another to whom he knows he is ...