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People v. Clune





APPEAL from the Circuit Court of Peoria County; the Hon. CALVIN R. STONE, Judge, presiding.


Having been originally indicted on two counts of indecent liberties with a child and one count of aggravated incest, the defendant, Douglas Clune, pleaded guilty to one count of indecent liberties with a child, the other charges being dropped as the result of a partial plea agreement, and was sentenced to a determinate term of imprisonment of eight years. In this appeal the defendant challenges only the propriety of the sentence imposed.

The factual basis for the guilty plea was that on May 23, 1978, 12-year-old Angela Clune was at home in Peoria with her father, the defendant, at a time when her mother was away from the residence. Angela would testify that she was at home washing dishes and there were other children present in the upstairs portion of the house. The defendant came into the area where she was doing dishes and led her into his bedroom. Once in the room defendant locked the doors and told the prosecutrix to remove all her clothes. He then told the girl to lay down and he in turn removed his clothing. The defendant then laid on top of her and put his penis into her vagina. The complainant screamed, and at that time heard her sister, Wanda, knocking on the bathroom door which led to the bedroom. Angela Clune would further testify that the defendant told her to say that she fell off the bed and had hit her arm. When she got up, she noticed that she was bleeding from her vagina.

Wanda Clune was prepared to testify that on the date in question she was vacuuming the house in the afternoon and heard her sister, Angela, screaming. She then went to the bathroom door and knocked. The State established the defendant's age to be 41.

On May 3, 1979, a hearing in aggravation and mitigation was held and two witnesses were called in the defendant's behalf. Mr. Randy McGraw, an alcoholism counselor and program coordinator for the Alcoholic Rehabilitation Center, testified that he had recently interviewed the defendant for a period of two hours and, since it was his opinion that every alcoholic has a potential for rehabilitation, he concluded that the defendant was in need of, and could benefit from, in-patient alcoholic care. Since the defendant was a veteran with an honorable discharge, he would be eligible to receive such treatment in the "very good treatment center" located in Danville. If the defendant were to go there, McGraw's organization could provide transportation.

The second witness to testify on behalf of the defendant was his wife of six years, Carol Clune. Mrs. Clune stated that she currently had custody and control of her own daughter, as well as her three stepchildren. Although Mrs. Clune had originally initiated the charges against the defendant, it was her testimony that she held no animosity toward him and felt that all of the defendant's problems were alcohol related. Since the defendant had never been afforded an opportunity to receive treatment for his alcohol addiction, Mrs. Clune felt that he deserved at least that one chance.

However, the presentence report indicated that the defendant's daughter had reported to the investigator that this occurrence for which the defendant was convicted was not an isolated incident. She stated that her father's sexual advances were so frequent she was unable to say how many times it had happened. The last such occurrence was on October 25, 1978.

Furthermore, the presentence report disclosed the defendant's prior criminal record. On November 28, 1958, the defendant was convicted of burglary in a proceeding before a California court and was sentenced to three years probation, conditioned upon his serving 60 days in jail. Subsequently this probation was revoked, but it was reinstated, although extended to 10 years, when the defendant was convicted of grand theft on September 26, 1962. Thereafter, on February 18, 1964, this probation was also revoked since the defendant had not been in contact with the probation department since November 6, 1963.

On January 30, 1968, the defendant pleaded guilty in an Oregon court to the charge of deceptive practices, a misdemeanor, and was then extradited to California where, on March 13, 1968, two consecutive sentences were imposed. On August 23, 1969, the defendant was paroled, and on September 13, 1971, he was released from parole.

In addition, the presentence report included the reports of a psychiatrist and a registered clinical psychologist who had each interviewed the defendant. T.W. Mathews, a registered clinical psychologist, pointed out that the chronic alcoholic often responds well initially due to the external stress resulting from the apprehension of the punishment which will result from his misbehavior, but, typically, "the enthusiasm and ability to work productively in psychotherapy, however, diminishes rapidly as soon as the external stress is removed." It was Mr. Mathews' conclusion that "(j)udging from the information at hand, it would appear that the likelihood of major changes in Mr. Clune's pattern of behavior as a result of psychotherapeutic or social agency intervention would be considered quite small."

Mortimer D. Beck, M.D., who examined the defendant at the defendant's request, reported:

"I find this man to be a hypomanic, non-psychotic individual of great energy, mostly unchanneled and marked restlessness [sic]. He is a person of little insight who finds himself in a difficulty which he wants to escape from. It seems to me that any attempts at psychiatric treatment would fail as it is set up at the present time. That is, he would `cooperate' and be passive- aggressively torpedoing the treatment all the time. He would go back to alcohol and blame the therapist for doing a poor job."

As a result, Dr. Beck concluded that psychiatric treatment of the defendant would fail and, if he went back to using alcohol, the defendant could be a threat to himself and his children.

In pronouncing sentence, the trial court reasoned that, having regard of the nature and circumstances of the offense and the history and character of the defendant, a sentence of imprisonment was necessary to protect the public and that a sentence of probation or conditional discharge would not only deprecate the seriousness of the defendant's conduct, but would also be inconsistent with the ends of justice. Additionally, the trial court found that the circumstances of the offense were likely to recur; that because he had previously failed to complete probation he would not likely comply with the terms of a probationary sentence; that sexual intercourse with a 12-year-old daughter was the type of conduct that threatened serious harm to another; that there was no provocation whatsoever to commit this offense; that there were no grounds tending to excuse or justify the defendant's conduct; that while the intoxication was a mitigating ...

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