Appeal from the Circuit Court of Hancock County; the Hon.
Richard C. Ripple, Judge, presiding.
JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:
Rehearing denied August 26, 1985.
Subsequent to being charged by information with eight counts of indecent liberties with a child (Ill. Rev. Stat. 1983, ch. 38, par. 11-4(a)) and one count of unlawful delivery or possession of a controlled or counterfeit substance (Ill. Rev. Stat. 1983, ch. 56 1/2, par. 1401(c)), Randy Flambeau, the defendant, pleaded guilty to two counts of indecent liberties with a child, and the court dismissed the remaining charges with leave to reinstate. The defendant appeals from his sentence of two concurrent five-year terms of imprisonment.
The factual basis for the defendant's convictions was that the defendant performed or submitted to acts of sexual intercourse and lewd fondling or touching with 14- and 15-year-old female children. At the time of the offense, indecent liberties with a child was a Class 1 felony. (Ill. Rev. Stat. 1983, ch. 38, par. 11-4(d).) Prior to the defendant's guilty plea, the statute was repealed by Public Act No. 83-1067 (the Act), effective July 1, 1984, so that an accused commits aggravated criminal sexual abuse, a Class 2 felony, when he performs an act of sexual penetration with a victim at least five years younger and between 13 and 16 years of age. (Ill. Rev. Stat., 1984 Supp., ch. 38, par. 12-16.) The Act also provided in its saving clause that the abolition of any offense does not affect any prosecution pending, penalty, punishment, rights, powers or remedies accrued under any prior law which related to an abolished offense and that the Act was only to apply to offenses committed on or subsequent to July 1, 1984.
Class 1 felonies are punishable by a term of imprisonment of not less than four years and not more than 15 years. The imprisonment range for Class 2 felonies is three to seven years. The trial court sentenced the defendant based on the law in effect on the date of the offenses and denied the defendant's motion to be resentenced to probation and to concurrent four-year terms as well as his request to vacate the sentencing plea.
• 1 The defendant initially contends on appeal that his sentence should be vacated and the cause remanded for sentencing because he was not allowed to elect his sentencing scheme. Section 4 of "An Act to revise the law in relation to the construction of statutes" provides in part that no new law shall be construed to expressly or impliedly repeal or affect a former law as to any offense committed, any penalty or punishment incurred, or any right accrued under the former law, save only that the proceedings thereafter shall conform to the laws in force at the time of the proceeding. If any penalty or punishment is mitigated by the new law, such provision may, by the consent of the party affected, be applied to judgments pronounced after the new law takes effect. Ill. Rev. Stat. 1983, ch. 1, par. 1103.
The State responds that the defendant failed to raise the issue in his motion to vacate and thus waived its consideration on appeal. Since the defendant moved to vacate his sentence and later raised the issue in a petition for post-conviction relief, justice and fundamental fairness require relaxation of the principle of waiver. (People v. Hollins (1972), 51 Ill.2d 68, 280 N.E.2d 710.) The State's legitimate interest in eliminating unnecessary reviews and reversals (People v. Irwin (1965), 32 Ill.2d 441, 207 N.E.2d 76) cannot preclude our consideration of this issue based on a new law of which neither the court nor the State nor the defendant's attorney were cognizant. Therefore, we review the alleged error which affected the defendant's substantial rights. 87 Ill.2d R. 615.
• 2 The State next argues that allowing the defendant to elect sentencing under the Act which substantively changed the nature of the offense interferes with prosecutorial discretion and is prohibited by the Act's saving clause.
We must ascertain and effectuate the legislative intent best evidenced by the ordinary meaning of the statutory language. (Sayles v. Thompson (1983), 99 Ill.2d 122, 457 N.E.2d 440.) Clearly, the Act revamped sex offenses and their corresponding penalties, and was not legislatively intended to affect the prosecution or punishment of offenses committed prior to July 1, 1984. That specific legislative purpose is paramount to the general saving clause the defendant relies on (People v. Bilderback (1956), 9 Ill.2d 175, 137 N.E.2d 389) and controls the case at bar. (People v. Tanner (1963), 27 Ill.2d 82, 188 N.E.2d 42.) Since the Act changed the elements and thus the nature of the offense, prosecution and sentencing based on the law in effect at the time of the offense are permitted. (People v. Palmore (1983), 113 Ill. App.3d 926, 446 N.E.2d 911.) Because the defendant had no right to elect sentencing under the Act, we decline to remand for a new sentencing hearing.
• 3 Having already determined that the defendant's sentence was not affected by the Act, we next address the defendant's contention that the trial court abused its discretion in sentencing the defendant to more than the minimum term. The defendant waives consideration of an issue on appeal by failing to raise it in the post-trial motion. (People v. Pickett (1973), 54 Ill.2d 280, 296 N.E.2d 856.) The defendant, contrary to the State's allegation, preserved the issue for review by moving to reduce his sentence in his post-trial motion.
At the sentencing hearing, the defendant presented mitigating evidence of his responsible business and family dealings; his family background; his honesty; his ability to lead and relate to both his students and adults; and his ability to function in society. Both the defendant and his wife testified that the defendant was grieving the death of a close friend and was experiencing stress from his students' discipline problems when the offenses were committed and was frustrated by his inexperience in teaching and coaching the challenging junior high students. The defendant admitted that the two-month affairs were based on classroom friendships and his inability to resist the students' advances. The defendant stated that he regrets the victims' experiences; that he now abstains from alcohol; and that he is willing to undergo counseling.
The defendant's wife, a student and part-time employee, stated that she and her daughter need the defendant at home. In addition to highlighting the victims' repeated harassing phone calls and visits, she submitted a letter which detailed the defendant's dedicated involvement with his students' personal, psychological, disciplinary, and academic problems. Her letter further emphasized the defendant's talents, the fact that his family and friends support him; and that he has learned from his mistake in addition to being humiliated and punished by loss of employment.
Stephen Miller, the clinical psychologist who had three sessions with the defendant, opined that the defendant is a regressed offender who, due to stress, temporarily departed from his normal sexual orientation. The defendant, in his opinion, is not a risk to society since, absent the work-related stress, the defendant would not have engaged in sexual acts with his students. His conduct stemmed from his feelings of incompetency. A regressed offender has a favorable nonrepetitive history, but in addition to the support from family and friends, the defendant still needs outpatient counseling.
In addition to the presentence report, the court properly considered the defendant's family life, background, and occupation as well as the mitigating evidence of his character. The court did not categorize the defendant's conduct as contemplating, causing, or threatening serious physical harm and also considered in mitigation that the defendant's unjustified conduct lacked strong provocation and that the defendant had no prior conviction. The court was not ...