Appeal from the Circuit Court of Will County; the Hon. Thomas
P. Faulkner, Judge, presiding.
PRESIDING JUSTICE HEIPLE DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 4, 1985.
The defendant, Gregory Fisher, was charged with two counts of indecent liberties with a child and one count of intimidation. Defendant pleaded guilty to the indecent liberties counts and the intimidation charge was dismissed. The circuit court of Will County sentenced defendant to six- and 12-year concurrent terms of imprisonment and imposed a $1,000 fine on each count. The issues on appeal are as follows: (1) whether multiple convictions for indecent liberties were proper; (2) whether the court relied upon improper factors in aggravation and failed to consider mitigating factors; (3) whether the sentences are excessive; (4) whether defendant should have been allowed to elect sentencing under the new sex crimes statute which reduces defendant's conduct from a Class 1 to a Class 2 felony, and; (5) whether the fines were excessive and inappropriate.
An additional issue has been conceded by the State. The defendant argues that a $25 fine imposed pursuant to the Violent Crime Victim's Assistance Act should be reversed because the Act became effective after the occurrence of the offenses. Under these circumstances, the State agrees that the fine constitutes an ex post facto penalty and must be vacated.
At defendant's plea hearing, the prosecutor stated that the evidence would show that the defendant and a 14-year-old male victim engaged in sexual acts at defendant's photography studio. After his arrest, the defendant admitted to police that he had performed oral sex on the victim and photographed the victim while engaged in the act of masturbation. These acts formed the basis for the two counts of indecent liberties.
The defendant argues that one of his convictions and sentences must be vacated because the convictions were based upon acts which were proscribed by the same statute, occurred almost simultaneously and involved a single victim.
• 1 The State argues that this issue has been waived because the defendant did not raise it at the sentencing hearing or in his motion to vacate the guilty plea. In People v. Jackson (1978), 64 Ill. App.3d 159, we held that a one-act one-crime argument, although technically waived, was necessarily included in the defendant's argument that his sentence was excessive. Since the defendant here also challenges the length of his sentences and has preserved this issue for appeal, we will consider defendant's one-act one-crime argument.
In People v. King (1977), 66 Ill.2d 551, our supreme court held that prejudice results to a defendant only in those instances where more than one offense is carved from the same physical act. Multiple convictions and concurrent sentences should be permitted in all other cases where a defendant has committed several acts, despite the interrelationship of those acts. "Act," when used in this sense, is intended to mean any overt or outward manifestation which will support a different offense.
The defendant was charged with violating sections 11-4(a)(2) and (b)(1) of the Criminal Code, which provide as follows:
"(a) Any person of the age of 17 years and upwards commits indecent liberties with a child when he or she performs or submits to any of the following acts with a child under the age of 16:
(2) Any act of deviate sexual conduct; * * *
(b) Any person, regardless of age, commits indecent liberties with a child when he or she:
(1) Photographs, videotapes, films or otherwise makes reproductions by similar means of any of the acts set forth in subsection (a) of this Section, between a minor of less than 16 years of age and any other person regardless of age or of any of the following acts: * * * (D) a minor of less than 16 years of age engaging in masturbation; * * *." Ill. Rev. Sat. 1981, ch. 38, pars. 11-4(a)(2) and (b)(1).
• 2 The defendant engaged in one act of oral genital contact with the minor-victim and one act of photographing the victim while masturbating. Each act is a distinct and overt manifestation under King. Each act is separately defined under section 11-4. Although the acts may have occurred within minutes of each other, they ...