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People v. Williams

OPINION FILED APRIL 15, 1986.

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

v.

VIRGINIA WILLIAMS, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of St. Clair County; the Hon. Richard Hudlin IV, Judge, presiding.

JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:

Rehearing denied May 1, 1986.

Defendant, 32-year-old Virginia Williams, was charged with the offense of cruelty to a child, to which she pleaded guilty. (Ill. Rev. Stat. 1983, ch. 23, par. 2368.) The circuit court of St. Clair County entered judgment on the plea on February 22, 1985, and sentenced the defendant to an extended term of six years' imprisonment. Additionally, the court imposed fines, costs and fees totaling $300 upon the defendant.

On February 19, 1984, defendant's son Jeremy, then 18 months old, received second and third degree burns to his buttocks. The injury was caused by a space heater and occurred in defendant's home. The pattern of the burn matched the pattern on the top of the space heater. In spite of the severity of the injury, defendant did not seek medical treatment for the child until March 8, 1984. Jeremy was not released from the hospital until March 21, 1984. On May 17, 1984, defendant was indicted for the offense of aggravated battery to a child. On December 5, 1984, the indictment was dismissed and defendant pleaded guilty to the charge of cruelty to a child (Ill. Rev. Stat. 1983, ch. 23, par. 2368) and sentence was imposed.

On appeal, defendant complains that the trial court erred in imposing an extended-term sentence and that the sentence of six years' imprisonment is excessive and constitutes an abuse of discretion. Defendant also asserts that she is entitled to a $200 credit toward her fine because she was confined to jail for 47 days before being convicted.

The offense of cruelty to a child is classified as a Class 4 felony. (Ill. Rev. Stat. 1983, ch. 23, par. 2368.) The sentence imposed for a Class 4 felony shall not be less than one year and not more than three years. (Ill. Rev. Stat. 1983, ch. 38, par. 1005-8-1(a)(7).) Defendant contends that the trial court improperly considered the statutory aggravating factor of the victim being under 12 years of age at the time of the offense (Ill. Rev. Stat. 1983, ch. 38, par. 1005-5-3.2(b)(3)(i)) insomuch as this factor is implicit in the offense of cruelty to a child.

Section 5-5-3.2(b)(3)(i) of the Unified Code of Corrections states that when a defendant is convicted of any felony committed against a person under 12 years of age at the time of the offense, this factor may be considered by the court as a reason to impose an extended term sentence under section 5-8-2 of the Code. (Ill. Rev. Stat. 1983, ch. 38, par. 1005-5-3.2(b)(3)(i).) Defendant relies upon People v. Conover (1981), 84 Ill.2d 400, 419 N.E.2d 906, to support her contention that the trial court improperly considered the aggravating factor of the victim's age in imposing an extended-term sentence. In Conover, the court held that the aggravating factor of the defendant receiving compensation for committing the offense (Ill. Rev. Stat. 1983, ch. 38, par. 1005-5-3.2(a)(2)) could not be considered in determining the sentence to be imposed for burglary where the proceeds of the crime were defendant's only remuneration; the rationale being that inasmuch as most burglaries involve proceeds, the legislature likely considered that factor in establishing the penalty for burglary. 84 Ill.2d 400, 405, 419 N.E.2d 906, 909.

Defendant argues that a similar conclusion is mandated here. We agree with defendant's proposition that although the cruelty to children statute does not define the term "child," one can reasonably conclude from a comparison with related legislation that a child is a person under 18 years of age. (See, e.g., Ill. Rev. Stat. 1983, ch. 23, par. 2053.) However, we disagree with defendant's argument that because most offenses of cruelty to a child are committed against children under 12 years of age, the legislature considered this factor in establishing the penalties for this offense and, therefore, the age of the victim may not be considered by the court as a factor in aggravation of the sentence to be imposed.

This court, in People v. Brewer (1984), 127 Ill. App.3d 306, 468 N.E.2d 1242, dealt with the application of Conover to a situation very similar to that presented here. In Brewer, the defendant was found guilty of indecent liberties with a child and sentenced to an extended term of 25 years' imprisonment. (127 Ill. App.3d 306, 307, 468 N.E.2d 1242, 1243.) On appeal, the defendant argued that imposition of an extended term under section 5-5-3.2(b)(3)(i) of the Unified Code of Corrections was inappropriate. (People v. Brewer (1984), 127 Ill. App.3d 306, 311, 468 N.E.2d 1242, 1245.) Relying on Conover, the defendant contended that application of section 5-5-3.2(b)(3)(i) to his conviction for indecent liberties with a child constituted double enhancement and that where the legislature had established a penalty to be imposed for a crime, a factor already implicit in that crime, such as the child's age, cannot be considered an aggravating factor. (People v. Brewer (1984), 127 Ill. App.3d 306, 311, 468 N.E.2d 1242, 1245.) The State argued that application of the aggravating factor did not constitute double enhancement because that factor did not apply to the entire class of persons protected by the indecent liberties with a child statute, given that that statute punished acts committed against a child under the age of 16 (Ill. Rev. Stat. 1983, ch. 38, par. 11-4) and an extended-term sentence could be imposed only for felonies committed against a child under 12. People v. Brewer (1984), 127 Ill. App.3d 306, 311, 468 N.E.2d 1242, 1246.

The court in Brewer reasoned that the extreme youth of the victim presented an additional consideration not necessarily implicit in every offense of indecent liberties with a child. (People v. Brewer (1984), 127 Ill. App.3d 306, 311-12, 468 N.E.2d 1242, 1246.) "[T]he supreme court did not intend an inflexible application of the Conover rule." (127 Ill. App.3d 306, 312, 468 N.E.2d 1242, 1246.) "The legislature * * * has wide discretion to classify offenses and prescribe penalties * * * [and] [i]n enacting section 5-5-3.2(b)(3)(i) the legislature determined that felonies committed against children under 12 were of a greater harm to society than those committed against persons over 12 and, therefore, deserved a heavier sentence." (People v. Brewer (1984), 127 Ill. App.3d 306, 312, 468 N.E.2d 1242, 1246.) The court held that it was not error for the trial court to consider in aggravation the extreme youth of the victim in sentencing the defendant for indecent liberties with a child. People v. Brewer (1984), 127 Ill. App.3d 306, 312, 468 N.E.2d 1242, 1246.

• 1 As in Brewer, we believe that the extreme youth of Jeremy Jones presents an additional consideration not necessarily implicit in every offense of cruelty to a child. Interpreting the term "child" in the cruelty to children statute as one who is under the age of 18 the legislature, in enacting section 5-5-3.2(b)(3)(i), determined that cruelty to a child under the age of 12 deserves a greater penalty and that it should be left to the court's discretion whether or not to consider this factor in imposing sentence. (See, e.g., People v. Brewer (1984), 127 Ill. App.3d 306, 312, 468 N.E.2d 1242, 1246.) We hold, therefore, that it was not error for the trial court to consider in aggravation the fact that Jeremy was 18 months old in sentencing defendant for cruelty to a child.

• 2 The defendant's second complaint is that her sentence is excessive and that the trial court abused its discretion in imposing the maximum extended-term sentence of six years' imprisonment. While defendant argues that probation is a preferred sentencing disposition (Ill. Rev. Stat. 1983, ch. 38, par. 1005-6-1(a)), we do not believe that probation is appropriate in every case. (People v. Dale (1979), 69 Ill. App.3d 772, 775-76, 387 N.E.2d 418, 420-21.) The trial court specifically found that the sentence imposed upon defendant was necessary for the protection of the public and, therefore, properly followed the guidelines for imposing a prison term instead of a term of probation. Ill. Rev. Stat. 1983, ch. 38, par. 1005-6-1(a)(1).

Furthermore, the trial court stated as its reasons for imposing sentence defendant's prior criminal history, the seriousness of the injury, and the need to deter defendant and others. The court clearly considered the factors under section 5-5-3.2(a) in imposing sentence upon defendant (Ill. Rev. Stat. 1983, ch. 38, par. 1005-5-3.2(a)), and the record supports the court's findings. With regard to defendant's prior criminal history, she was convicted of child neglect in 1977 and for contributing to the neglect of a child in 1981 after 11 of her children died in a fire at defendant's home while left unattended. Between 1977 and 1982, the Department of Children and Family Services had obtained temporary custody of defendant's children on three separate occasions. The trial court also had evidence before it of the severity of the burns Jeremy received, and defendant does not dispute the fact that she did not seek immediate medical care for her son. In light of the defendant's past performance in caring for her children and the prevalence of child neglect and abuse in our society, the trial court could find that the term of imprisonment imposed upon defendant would serve to deter defendant and others from such conduct.

• 3 Nor do we agree with defendant's contention that the trial court ignored the constitutional mandate that all penalties must be determined both according to the severity of the offense and with the objective of restoring the defendant to useful citizenship. (Ill. Const. 1970, art. I, sec. 11.) "A court * * * is not required to give greater weight to the possibility of rehabilitation than to the seriousness of the offense." (People v. Green (1985), 136 Ill. App.3d 361, 368, 483 N.E.2d 606, 612.) We hold that the sentence of ...


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