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People v. Cosby

OPINION FILED OCTOBER 17, 1985.

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

v.

TIMOTHY JOHN COSBY, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Woodford County; the Hon. William T. Caisley, Judge, presiding.

JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:

The defendant, Timothy John Cosby, appeals the judgment entered on his plea of guilty to a charge of aggravated criminal sexual abuse (Ill. Rev. Stat., 1984 Supp., ch. 38, par. 12-16(b)). As the basis for his assertions that his conviction should be vacated and that he should be allowed to plead anew, Cosby maintains that the circuit court erred in denying his amended motion to withdraw his guilty plea and that the court erred in failing to make available to him the complete transcript and record of juvenile proceedings in which the alleged victim of his offense was the respondent. Alternatively, Cosby argues that the three-year sentence imposed upon him was an abuse of discretion, and that his sentence should therefore be vacated and the cause remanded for resentencing.

Cosby pleaded guilty to a charge of aggravated criminal sexual abuse on November 16, 1984. As the factual basis for the plea, the Woodford County State's Attorney stated that on the night of July 20-21, 1984, the victim, then age 14, was baby-sitting at the Minonk home of Daniel Peek. On that night, Cosby, then age 20, went to the Peek residence and performed with the victim an act of sexual intercourse per os.

On December 17, 1984, Cosby filed a motion to withdraw his guilty plea. The stated basis for the motion was that "defendant does not believe he is guilty." Following argument by counsel on December 21, 1984, the court denied the motion on the ground that it did not contain the certificate required by Supreme Court Rule 604(d) (87 Ill.2d R. 604(d)) and did not state with specificity the grounds on which Cosby relied as the basis for the motion.

Following the imposition of sentence, Cosby, who had previously been represented by court-appointed counsel, obtained private counsel. On January 4, 1985. Cosby's private counsel filed a second motion to withdraw Cosby's guilty plea which was amended on February 5, 1985. So far as it pertained to the issue which we consider on appeal, the amended second motion to withdraw Cosby's guilty plea alleged that at the time Cosby pleaded guilty, he believed that the alleged victim was over 15 years of age at the time of the alleged offense; that he was told by his appointed counsel that this belief was not relevant to his guilt or innocence; and that had he been aware that his reasonable belief regarding the age of the victim was a defense to the offense with which he was charged, he would not have entered a guilty plea. Cosby further asserted that at no time during the proceedings on his guilty plea did the court advise him that a reasonable belief that the victim was over 15 was a defense to the charge pending against him.

At a hearing on the amended second motion to withdraw Cosby's guilty plea held February 8, 1985, Cosby testified that he had known the victim for about a month before the alleged offense and had only talked to her on a couple of occasions prior to that time. At the time of the alleged offense, he had no idea as to her age, but prior to that time had seen her mostly with males between the ages of 16 and 21. In response to further questioning, Cosby stated that he felt that the victim was "about 17 or older" at the relevant time and that she was a junior or senior in high school, but that no one had ever told him how old she was.

Cosby further testified that on the day that he pleaded guilty, he asked the public defender, "Would not knowing her age and her making the first move on me be a defense[?]" and that the public defender replied, "No." At no other time prior to Cosby's entering his guilty plea did the public defender tell him that a reasonable belief at the time of the alleged offense that the victim was older than 15 was a defense to the charge pending against him. He would not have pleaded guilty if he had known at the time of his plea that that was a defense.

On cross-examination, Cosby denied that during the summer of 1984, after Daniel Peek told Cosby that the victim was interested in him, he said to Peek, "I wouldn't touch that, she is jailbait."

The State presented testimony of Woodford County public defender Daniel M. Harrod, who initially represented Cosby. Harrod testified that on the date that Cosby pleaded guilty to aggravated criminal sexual abuse, he (Harrod) was aware that an affirmative defense to that charge is that at the time of the alleged offense, the defendant reasonably believed that the victim was over 16. He recalled conversations with Cosby regarding the possible use of that defense prior to the entry of Cosby's guilty plea, but did not recall exactly when those conversations took place. Harrod further testified as follows with regard to his conversations with Cosby dealing with the defense of reasonable belief as to the alleged victim's age:

"Q. Do you recall what he said to you and what you said to him?

A. Not specifically.

Q. Do you recall in general?

A. Yes. You are talking about the affirmative defense ...


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