Appeal from the Circuit Court of Cook County; the Hon. Francis
J. Mahon, Judge, presiding.
JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
Following a jury trial, defendant, Ollie Paino, was convicted of rape, armed robbery and deviate sexual assault. (Ill. Rev. Stat. 1983, ch. 38, pars. 11-1, 18-2, 11-3.) He was sentenced to a 30-year term for rape to be served consecutive to concurrent 25-year terms for armed robbery and deviate sexual assault. Defendant contends on appeal that the trial court erred in failing to suppress his lineup identification because it was obtained in violation of his right to counsel, that he was prejudiced by the introduction of certain hearsay evidence and that his sentences were excessive.
Complainant testified that at 11 p.m. on June 10, 1982, she was entering her apartment on North Sheridan Road in Chicago when a man, subsequently identified as Floyd Mulkey, put a gun to her head and forced her into a car driven by defendant. The men drove north on Lake Shore Drive for some time, then parked under an overpass and raped complainant. After stopping at a gas station for directions, they drove to the south side of the city. During this time, Mulkey and defendant rummaged through complainant's briefcase and purse and removed $10.
Upon reaching the south side, defendant let Mulkey out of the car for the purpose of buying beer. He then drove complainant to an area under the elevated tracks, turned on the interior car light, and forced her to submit to acts of oral and anal intercourse. When Mulkey returned to the car, complainant persuaded the men to release her in exchange for her bankcard and access code number. She then entered a cab and told the driver to take her to the police. Complainant stated that the ordeal lasted approximately three hours.
Officer Carol Lewandowski testified that when she encountered complainant at 2 a.m. on June 11, 1982, complainant was very upset and stated that she had been raped. After providing the officers with a description of the offenders, she was taken to a hospital for treatment.
Forest Mayfield testified that he was driving on Sheridan Road on the evening in question and observed a man abduct complainant at gunpoint. He followed the car for several blocks, ascertained the license plate number and pulled into a nearby condominium building where his wife called the police. Mayfield then continued to drive around the area in search of the car. When he saw a squad car he flagged it down and gave the police the license plate number and description of the car.
Detective Patricia Riegler testified that she listened to a tape of a "911" telephone call in which defendant's brother, Joe Paino, informed police that defendant had stolen the car used in the offense. Based upon this information, Riegler obtained photographs of possible suspects and displayed them to complainant, who tentatively identified defendant and a man named Kevin Irby. However, in a June 12, 1982, lineup which included Kevin Irby but not defendant, complainant failed to identify anyone. Four days later, complainant viewed a lineup which included defendant's brother, Joe Paino, and again failed to make an identification. On June 18, 1982, complainant viewed a third lineup which included defendant, and positively identified him as one of her attackers. She identified Floyd Mulkey in a separate lineup.
Prior to trial, defendant moved to suppress his lineup identification on the grounds that his right to counsel had been violated because he was indicted by the grand jury on the same day that he was identified in a lineup without benefit of counsel. It was established that the lineup took place at 10 a.m., but no evidence was presented as to the time the indictment was obtained. The trial court denied the motion.
At the sentencing hearing, defendant was sentenced to a 30-year term for rape to be served consecutive to his concurrent 25-year terms for armed robbery and deviate sexual assault. His accomplice, Floyd Mulkey, entered a negotiated plea of guilty to the offenses of rape, deviate sexual assault, aggravated kidnaping and armed robbery and received concurrent 18-year sentences. The circumstances surrounding the determination of defendant's sentences will be detailed later in connection with our discussion of that issue.
Defendant first contends that the trial court erred in failing to suppress the lineup identification because it was obtained in violation of his sixth amendment right to counsel. He argues that since the lineup was held on the same day he was indicted, his right to counsel had attached.
• 1 The right to counsel attaches at or after the initiation of the adversary judicial process. (Kirby v. Illinois (1972), 406 U.S. 682, 32 L.Ed.2d 411, 92 S.Ct. 1877.) However, the fact that a defendant was indicted on the same day as the lineup is not in itself sufficient to show that the right to counsel had attached at the time of the lineup. People v. Harrell (1982), 104 Ill. App.3d 138, 432 N.E.2d 1163.
In People v. Harrell, as in the case at bar, the State initiated adversarial judicial proceedings against the defendant on the same day that he was identified in a lineup. However, there was no indication in the record as to whether the lineup took place before or after the complaint was filed and the arrest warrant issued. Noting that the existence of error will not be presumed, the court stated that in the absence of evidence showing that the documents in question were obtained before the lineup was conducted, it would resolve the silence of the record against the defendant. Accordingly, the court held that the right to counsel had not attached at the time of the lineup.
• 2 We find the instant cause indistinguishable from the situation presented in People v. Harrell. Although the record established that the lineup was conducted at 10 a.m., there is no indication of when the grand jury indictment was obtained. Since defendant has failed to affirmatively show the existence of error, we must presume that his right to counsel had not attached at the time he was identified in the lineup.
• 3 Defendant next contends that he was irreparably prejudiced by the introduction of certain hearsay evidence, which was elicited by the State in violation of a pretrial ruling that such evidence could not be used at trial. The evidence in question was Detective Riegler's testimony that she learned from a "911" phone tape that defendant's brother, Joe Paino, had informed the police that defendant had stolen the vehicle used in the offense. Defendant argues that this evidence influenced the jury on the issue of whether he was properly identified as one of the offenders.
It is the duty of the reviewing court to consider the trial record as a whole in determining whether a new trial is warranted. (People v. Ammons (1983), 120 Ill. App.3d 855, 458 N.E.2d 1031.) A conviction will not be reversed because of alleged errors in the trial court unless it appears that the guilty finding was the result of such errors. (People v. Morehead (1970), 45 Ill.2d 326, 259 N.E.2d 8, cert. denied (1970), 400 U.S. 945, 27 L.Ed.2d 251, 91 S.Ct. 251.) Generally, a trial court's prompt action in sustaining an objection and instructing the jury to disregard the improper testimony serves to cure any potential prejudice. People v. Seider (1981), 98 Ill. App.3d 175, 423 N.E.2d 1217.
• 4 Detective Riegler testified that she listened to a tape of a telephone call regarding an automobile theft which led her to obtain photographs of persons possibly involved in the instant offense. A defense objection was sustained at this point, and the trial court instructed the jury to disregard Riegler's statement. Subsequently, on cross-examination, defendant elicited further testimony from Riegler showing that the call was made by a man named Joe Paino, who indicated that the car driven by defendant on the night in question was a stolen vehicle. In our judgment, the trial court's action in sustaining defendant's objection and instructing the jury to disregard the statements served to cure any prejudice which may otherwise have resulted. Furthermore, we do not believe that the testimony in question influenced the outcome of the trial in light of the clear and convincing identification testimony of complainant, who observed defendant under conditions which would permit a positive and reliable identification to be made. We also note that defendant's assertion that the trial court precluded him from clarifying the objectionable testimony is not supported by the record.
• 5, 6 Defendant next contends that the trial court erred in ordering that his 30-year sentence for rape run consecutive to his concurrent 25-year sentences for armed robbery and deviate sexual assault.
The relevant statute provides in pertinent part:
"(a) When multiple sentences of imprisonment are imposed on a defendant at the same time * * * the sentences shall run concurrently or consecutively as determined by the court. * * * The court shall not impose consecutive sentences for offenses which were committed as part of a single course of conduct during which there was no substantial change in the nature of the criminal objective, unless, one of the offenses for which defendant was convicted was a Class X or Class 1 felony and the defendant inflicted severe bodily injury, in which event the court may enter sentences to run consecutively. Sentences shall run concurrently unless otherwise specified by the court.
(b) The court shall not impose a consecutive sentence unless, having regard to the nature and circumstances of the offense and the history and character of the defendant, it is of the opinion that such a term is required to protect the public from further criminal conduct by the defendant, the basis for which the court shall set forth in the record." (Ill. Rev. Stat. 1983, ch. 38, par. 1005-8-4(a).)
The dissent concludes, sua sponte, that in addition to the requirement of this statute the total length of consecutive sentences may not exceed the ordinary maximum penalty for any one of the offenses at issue unless one of the prerequisite aggravating factors supporting an extended term (Ill. Rev. Stat. 1981, ch. 38, par. 1005-5-3.2(b)) is present. A second sua sponte contention of the dissent is that section 5-8-4 should not be construed to permit imposition of consecutive sentences where there has been a substantial change in the nature of the criminal objective but no Class X or Class 1 felony is involved and no severe bodily injury has been inflicted.
When a statute is unambiguously worded it should be enforced according to the plain meaning of its language. (In re Estate of Donnelly (1983), 111 Ill. App.3d 1035, 1038, 445 N.E.2d 49, 51.) The plain language of section 5-8-4 authorizes imposition of a consecutive sentence in cases not involving Class X or Class 1 felonies and not involving severe bodily injury if there has been a substantial change in the nature of the criminal objective and if the court finds that a consecutive sentence is required to protect the public from further criminal conduct by the defendant. There is no requirement that the facts also establish one of the aggravating factors necessary under section 5-5-3.2(b) for imposition of an extended term. Our courts have consistently read section 5-8-4 in this manner, and we find no basis for imposing additional requirements. People v. Perruquet (1983), 118 Ill. App.3d 293, 295, 454 N.E.2d 1055, 1057; People v. Walker (1983), 113 Ill. App.3d 1074, 1081, 448 N.E.2d 208, 213, cert. denied (1984) 465 U.S. 1031, 79 L.Ed.2d 697, 104 S.Ct. 1297; see People v. Hicks (1984), 101 Ill.2d 366, 373, 462 N.E.2d 473, 476.
• 7 Defendant contends that the consecutive sentence was improper because the offenses at issue were part of a single course of conduct during which there was no substantial change in the nature of the criminal objective. The term "conduct" refers to an act or series of acts and the accompanying mental state. (Ill. Rev. Stat. 1983, ch. 38, par. 2-4.) It has been held that, under the above-quoted provision, the imposition of consecutive sentences depends upon both the existence of separate acts and separate motivation behind those acts. People v. Perruquet (1983), 118 Ill. App.3d 293, 295, 454 N.E.2d 1055, 1057; People v. Rose (1979), 75 Ill. App.3d 45, 55, 393 N.E.2d 698, 706; People v. Brown (1975), 31 Ill. App.3d 547, 549, 334 N.E.2d 323, 324.
In People v. Perruquet (1983), 118 Ill. App.3d 293, 454 N.E.2d 1055, the defendant forced the victim into his car at knifepoint and drove to Williamson County, where he forced her to engage in sexual intercourse and fellatio. He then took money from the victim's purse. After robbing her, he drove to Jackson County, told her that he was going to release her, then raped her again. He was sentenced to an extended term of 30 years for aggravated kidnaping to run concurrently with extended terms of 60 years for each of the Williamson County offenses of rape and deviate sexual assault. In addition, he was sentenced to an extended term of 60 years for the Jackson County rape, which was to run consecutive to the Williamson County sex offenses. In upholding the consecutive offenses, this court found that although the offenses were committed during a continuous course of conduct, there was a substantial change in the nature of defendant's criminal intent from rape to armed robbery and that the second rape involved a "renewed criminal objective of sexual assault." (People v. Perruquet (1983), 118 Ill. App.3d 293, 297, 454 N.E.2d 1055, 1058.) Similarly, in People v. Rose (1979), 75 Ill. App.3d 45, 390 N.E.2d 698, the defendant raped the victim, then grabbed her purse as she attempted to escape. Consecutive sentences for rape and robbery were upheld because the defendant's initial objective to rape the victim changed to the objective of robbery when he took her purse.
In People v. Brown (1975), 31 Ill. App.3d 547, 334 N.E.2d 323, consecutive sentences for rape and armed robbery were affirmed. There, the defendant accosted a woman on the street with a knife, announced his intention to rape her, and forced her into a car. He drove away with her for half an hour, then raped her in the back seat and returned to the front seat, where he took money from her purse and then let her go. The court found that there had been a substantial change in the nature of defendant's criminal objective from raping the victim to robbing her.
Defendant has cited People v. Fieberg (1982), 108 Ill. App.3d 665, 439 N.E.2d 543. The appellate court in Fieberg ordered that the defendant's sentence for aggravated battery be served concurrently with the sentence for robbery instead of consecutively, as ordered by the trial court. It there held that the aggravated battery of macing the police officer and the robbery in taking his gun were motivated by the defendant's single criminal objective of evading capture following his commission of the other offenses for which he was also sentenced. In addition, the appellate court determined that the trial court "apparently saw both those crimes to be part of a single course of conduct" and therefore had no basis for consecutive sentences. (108 Ill. App.3d 665, 671-72, 439 N.E.2d 543, 548.) This is unlike the facts in the instant case.
• 8 It is generally within the discretion of the trial court to determine whether multiple sentences are to be served concurrently or consecutively (People v. Dye (1977), 69 Ill.2d 298, 305, 371 N.E.2d 630, 633), and the decision will not be disturbed absent a showing of an abuse of discretion. People v. Coleman (1980), 91 Ill. App.3d 646, 654, 415 N.E.2d 553, 559.
• 9 The trial court in the instant case addressed this specific issue at the sentencing hearing before imposing the consecutive sentences. It was emphasized that this was a three-hour reign of terror in which the defendant, initially with Mulkey and later alone, committed three separate offenses. Each offense took place at different time intervals, at locations distant from each other, and under different circumstances. The rapes occurred in the far north section of Chicago or a suburb thereof, the robbery en route to the south side of Chicago, and the deviate oral and anal sexual assaults on the south side of Chicago after Mulkey had left the automobile and defendant had then driven to a location under the elevated tracks. The trial court after argument stated: "[C]onsecutiveness is based upon the fact that the Court finds that there was a changing of the criminal objectives as well as the fact that it is necessary in the Court's mind to protect the public from defendants like Mr. Paino." Clearly, there was a substantial change in the nature of the criminal objective regarding the three distinct offenses. The consecutive sentence was fully warranted, and the trial court did not abuse its discretion in so imposing it.
• 10 As stated in People v. Perruquet (1983), 118 Ill. App.3d 293, 297, 454 N.E.2d 1055, 1058, to hold that under these circumstances consecutive sentences are precluded would be contrary to the deterrent purpose of multiple sentencing, which is to discourage the commission of further offenses once an initial offense has been completed.
Defendant's final contention is that his sentences were impermissibly disparate from the concurrent 18-year terms received by his co-offender, who entered a negotiated plea of guilty.
• 11 While similarly situated defendants should receive similar treatment in sentencing (People v. Martin (1980), 81 Ill. App.3d 238, 245, 401 N.E.2d 13, 18), a disparity may be warranted by differences in criminal background or degree of participation in the offense (People v. Stambor (1975), 33 Ill. App.3d 324, 326, 337 N.E.2d 63, 65). Also, certain dispositional concessions may be made by the court to a defendant who pleads guilty. (People v. Sivels (1975), 60 Ill.2d 102, 104-06, 324 N.E.2d 422, 424.) In considering the appropriateness of punishment, a reviewing court must give great weight to the decision of the trial court. People v. Bergman (1984), 121 Ill. App.3d 100, 108, 458 N.E.2d 1370, 1378-79.
• 12 Although we have not been presented with information concerning Floyd Mulkey's criminal background, the assistant State's Attorney at the sentencing hearing did inform the court, without contradiction from defense counsel, that Mulkey had no criminal background compared with Paino's. Furthermore, it is clear that there was a difference in the degree of participation in the offenses. Complainant testified that although both men raped and robbed her, defendant alone forced her to submit to two acts of deviate sexual assault after Mulkey left the car to buy liquor. This factor, as well as Mulkey's negotiated plea of guilty, apparently accounted for the disparity in sentences. We thus disagree with defendant's assertion that he was penalized for exercising his right to a jury trial.
Another issue raised sua sponte in the dissent is whether the court's finding of the need to protect the public was sufficient to satisfy that statutory requirement. It is suggested that there was no factual basis for this finding.
• 13, 14 At the sentencing hearing the State noted that defendant had been convicted of one felony theft in 1981, for which he received two years probation, and two felony thefts in June 1983, for which he received a sentence of three years. The record establishes that the crimes now before us were committed while the defendant was on bond awaiting trial on those latter two offenses. (He pleaded guilty to them while awaiting trial in this cause.) The State specifically cited these factors as one basis for the need for a consecutive sentence to protect the public from future criminal conduct by the defendant. The defendant's criminal history was a valid basis for imposition of the consecutive sentence. (People v. Pittman (1982), 93 Ill.2d 169, 178, 442 N.E.2d 836, 840.) That the trial court did not specifically cite the basis for its determination of the need to protect the public cannot be a ground of error on appeal as defendant never sought amplification of this finding at the sentencing hearing. People v. Hicks (1984), 101 Ill.2d 366, 374, 462 N.E.2d 473, 476.
Accordingly, the judgment of the circuit court is affirmed.
Pursuant to People v. Nicholls (1978), 71 Ill.2d 166, 374 N.E.2d 194, we grant the State's request that defendant be assessed $50 as costs for the State's defending this appeal, and incorporate it as part of the judgment.
JUSTICE PINCHAM, dissenting:
I dissent. It is clear from the trial record that unconstitutionally disparate and illegally consecutive sentences, totaling 55 years, were imposed on Paino simply because he exercised his constitutional right to a trial by a jury, rather than plead guilty.
Defendant, Ollie Paino, age 19, and Floyd Mulkey, age 17, were charged with aggravated kidnaping, rape, armed robbery, deviate sexual assault and armed violence. Mulkey pleaded guilty to aggravated kidnaping, rape, armed robbery and deviate sexual assault, and the court imposed a sentence of 15 years' imprisonment on the aggravated kidnaping offense, to be served concurrently with 18 years' imprisonment on the rape, armed robbery and deviate sexual assault offenses. The prosecutor entered a nolle prosequi on the armed violence offense. Thereafter, Paino chose to exercise his constitutional right to a trial by a jury, which found him guilty of rape, armed robbery and deviate sexual assault. The court imposed concurrent 25-year imprisonment sentences on the armed robbery and deviate sexual assault offenses, to be served consecutively to a 30-year imprisonment sentence on the rape offense. *fn1
I. THE DEFENDANT'S UNEQUAL AND UNCONSTITUTIONALLY DISPARATE SENTENCES
Paino urges that there is a constitutionally impermissible disparity between his aggregate 55-year consecutive imprisonment sentence and Mulkey's aggregate 18-year concurrent imprisonment sentence. Paino urges that his 55-year sentence is over three times greater than Mulkey's 18-year sentence. An analysis of the extent of each defendant's participation in the offenses and their backgrounds substantiates Paino's contention that his sentence is, in fact, unconstitutionally disparate.
It was Mulkey who abducted the complainant on a public street, put a gun to her head and forced her into the car. Mulkey held the gun on the complainant while Paino drove to a secluded location. At this secluded location, Mulkey was the first to rape the complainant. Paino followed. Thereafter, Mulkey held the gun on the complainant and threatened her if she made an outcry, while Paino drove to the south side of Chicago.
From the trial testimony, it is unclear where Mulkey sat in the car while en route to Chicago's south side. The complainant testified at the trial that en route to the south side, she was in the back seat of the car. She testified further:
"Q. What happened in the automobile on the way to the south side?
A. They took my purse and my brief case, went through them and took the ten ...