Appeal from the Appellate Court for the Second District; heard
in that court on appeal from the Circuit Court of Du Page County,
the Hon. Robert A. Nolan, Judge, presiding.
JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:
Defendant, Charles Anderson, was found guilty of two counts of obscenity (Ill. Rev. Stat. 1981, ch. 38, par. 11-20) in a jury trial in the circuit court of Du Page County. Noting that periodic imprisonment was "not available," the trial court sentenced the defendant to four months' incarceration in the county jail and levied a fine of $1,000. The appellate court affirmed the conviction. (130 Ill. App.3d 318.) Defendant petitioned this court for leave to appeal, arguing that his sentence violated the equal protection guarantee of article I, section 2, of the Illinois Constitution. Pursuant to Rule 315 (94 Ill.2d R. 315(a)), we granted defendant leave to appeal.
The Du Page County grand jury returned an indictment against the defendant, as the owner of the Villa Park Bookstore, charging him with nine counts of obscenity (Ill. Rev. Stat. 1981, ch. 38, par. 11-20(a)(1)), based upon the sale of various magazines. A jury trial was held on four of the counts. The jury returned two guilty verdicts and acquitted the defendant on the remaining two counts. Judgment was entered on each of the verdicts.
At defendant's sentencing hearing, following arguments in aggravation and mitigation, the court made the following statement.
"THE COURT: In applying that law in the fashion that I think is appropriate, it is the judgment of the Court that Defendant Charles Anderson be and he is hereby sentenced to four months' incarceration in the Du Page county Jail and to pay a fine of $1,000.00.
Very candidly, if periodic imprisonment were available I would consider periodic imprisonment, but periodic imprisonment is not available either through the State or through the County.
That being not available, it just cannot be.
Therefore, as far as it being some greater period of time insofar as periodic imprisonment is concerned, I am imposing a lesser sentence of four months of what is called straight time incarceration." (Emphasis added.)
The term of incarceration was subsequently stayed and defendant filed a timely notice of appeal.
In the appellate court, defendant argued that the magazines involved were not obscene and that the State had not established his scienter beyond a reasonable doubt. He also argued, relying upon the statement noted above, that his sentence was based on the trial court's mistaken belief that periodic sentencing was legally unavailable.
The appellate court affirmed defendant's convictions and sentence. (130 Ill. App.3d 318.) The court found that the two magazines involved were obscene under current guidelines (130 Ill. App.3d 318, 320-27), and that the evidence was sufficient to establish defendant's scienter (130 Ill. App.3d 318, 327-30). The appellate court also found that the trial court's statements referred only "to the practical unavailability of periodic imprisonment facilities" and therefore the defendant's sentence was not based on any misapprehension of the law. 130 Ill. App.3d 318, 330-31.
Defendant, pursuant to Rule 315 (94 Ill.2d R. 315), petitioned this court for leave to appeal. Defendant's sole point relied upon for reversal in the petition was that the denial of a sentencing alternative provided by the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1001-1-1 et seq.), due simply to a lack of periodic imprisonment facilities in Du Page County, violated the equal protection guarantees of article I, section 2, of the Illinois Constitution. The only relief requested in the petition was that this court allow defendant's appeal and remand this cause to the circuit court of Du Page County for resentencing. We granted defendant's petition.
The defendant now argues that this court is required to make an independent judgment as to whether the material in ...