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People v. Miller

OPINION FILED APRIL 7, 1978.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

DOUGLAS MILLER, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Macon County; the Hon. DONALD W. MORTHLAND and the Hon. RODNEY A. SCOTT, Judges, presiding.

MR. PRESIDING JUSTICE REARDON DELIVERED THE OPINION OF THE COURT:

The defendant, Douglas Miller, was sentenced to two concurrent terms of 9 to 18 years' imprisonment after he pleaded guilty to rape, a violation of section 11-1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 11-1), and after a jury found him guilty of aggravated kidnaping, a violation of section 10-2 of the Code (Ill. Rev. Stat. 1975, ch. 38, par. 10-2). The taking of defendant's guilty plea and his trial were presided over by different judges who conducted a joint sentencing hearing pursuant to an agreement between the State and defendant. After recessing for a conference among themselves, the judges imposed separate sentences which they individually explained before adjourning the hearing.

Briefly, the facts giving rise to the instant offenses are as follows: on February 20, 1977, at approximately 4 a.m., the defendant and William McClain followed a young woman who was attempting to drive home after work. One of the young men pulled his automobile in front of the victim's and stopped so as to permit defendant to approach the victim for the purpose of requesting assistance. When the victim opened her window, the defendant drew a bayonet and forced his way into the vehicle. Defendant then proceeded to drive the vehicle as he directed the victim to place a blindfold over her eyes. Later, the victim and defendant entered the other vehicle which was then being driven by McClain. Defendant took over the driving chore as the victim sat on the front seat between her abductors. She was ordered to remove her clothing and defendant ordered her to lie down on the back seat where he raped her after McClain began driving. When McClain and the defendant exchanged places, McClain also raped the victim.

On June 21, 1977, the defendant pleaded guilty to the rape charge. On June 30, 1977, he was convicted of the aggravated kidnaping charge.

On appeal, the defendant contends: (1) that the joint sentencing procedure somehow prejudiced him; (2) that he was improperly convicted for two offenses based on the same physical act; (3) that the aggravated kidnaping offense was not proved beyond a reasonable doubt; (4) that the instructions given to the jury at the aggravated kidnaping trial were defective; and (5) that the sentences imposed were excessive.

Section 5-4-1(a), (b) of the Unified Code of Corrections (Ill. Rev. Stat. 1975, ch. 38, par. 1005-4-1(a), (b)) provides:

"(a) After a determination of guilt, a hearing shall be held to impose the sentence. At the hearing the court shall:

(1) consider the evidence, if any, received upon the trial;

(2) consider any presentence reports;

(3) consider evidence and information offered by the parties in aggravation and mitigation;

(4) hear arguments as to sentencing alternatives; and

(5) afford the defendant the opportunity to make a statement in his own behalf.

(b) All sentences shall be imposed by the judge. The judge who presided at the trial or the judge who accepted the plea of guilty shall impose the sentence unless he is no longer sitting as a judge in that court. Where the judge does not impose sentence at the same time on all defendants who are convicted as a result of being involved in the same offense, the defendant or the state's attorney may advise the sentencing court of the disposition of any other defendants who have been sentenced." (Compare Ill. Rev. Stat. 1977 Supp., ch. 38, par. 1005-4-1 (revision eff. Feb. 1, 1978).)

Also, in People ex rel. Rice v. Cunningham (1975), 61 Ill.2d 353, 359-60, 336 N.E.2d 1, 5, our supreme court stated: "[T]he present Constitution is silent as to the number of judges required for the determination of a proceeding in the circuit court. This court, however, has consistently held that circuit (and superior, as classified under the previous constitution) court judges occupy independent ...


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