Appeal from the Circuit Court of Champaign County; the Hon.
Robert J. Steigmann, Judge, presiding.
JUSTICE MORTHLAND DELIVERED THE OPINION OF THE COURT:
Defendant pleaded guilty to one count of attempt (aggravated criminal sexual assault) in violation of section 12-14(a)(2) of the Criminal Code of 1961 (Ill. Rev. Stat., 1984 Supp., ch. 38, par. 12-14(a)(2)) and was sentenced to 15 years' imprisonment. Upon denial of his post-plea motion, defendant appeals from the sentence imposed.
On appeal, defendant challenges his sentence contending (1) it was improper for the court to consider the facts underlying charges dismissed as part of the plea agreement, (2) it was improper to consider these same facts to enhance his sentence to the maximum 15-year term of imprisonment, and (3) defendant's 15-year sentence was an abuse of discretion.
The facts are not controverted. Defendant was originally charged by indictment with two counts of attempt (aggravated criminal sexual assault), two counts of aggravated battery, and single counts of residential burglary, robbery, and unlawful restraint. The charges stemmed from separate attacks defendant perpetrated on three women. On January 14, 1985, defendant pleaded guilty to one count of attempt (aggravated criminal sexual assault) involving an attack on Julie Powell. In return, the State agreed to drop all other charges. The plea bargain did not encompass any sentencing agreement.
The factual basis supporting the plea indicated that on September 21, 1984, at approximately 3:20 a.m., Powell returned to her Champaign apartment. While parking her moped, an automobile drove up with its headlights illuminating the area in which she was standing. Powell was able to read and retain the license number. As Powell ascended the stairs to her apartment, defendant questioned her as to whether someone lived in a particular apartment. Powell replied that she did not know and then proceeded into her own apartment. Within a few seconds defendant knocked on the door and asked if he could use the telephone, stating that he had been attacked and wanted to call the police. Powell permitted defendant to use the telephone. After he finished the call, defendant turned toward Powell and announced that he was going to rape her. They struggled and defendant tore off her clothes. Powell was scratched in several places and began to scream. At that moment, Powell's roommate entered the apartment. Defendant abandoned the attack and fled.
After accepting the plea, a sentencing hearing was held on February 19, 1985. In aggravation, the State presented testimony from the two other victims of defendant's attacks, Lisa Montgomery and Cynthia Knapp. All charges relating to these separate attacks had previously been dismissed as part of the plea bargain. Defendant did not object to the presentation of this testimony. Defendant did not cross-examine Knapp and asked only one question of Montgomery. In substance, their testimony was as follows.
Lisa Montgomery testified that on August 3, 1984, she was returning from the University after a final examination. While checking her mailbox, defendant grabbed her from behind across the mouth. Defendant told Montgomery not to scream and said, "Don't move or I will hurt you," before forcing her to the ground. Defendant also called her a "bitch" a number of times while emptying her wallet and purse. Defendant then pulled down Montgomery's shorts to mid-thigh at which time she began to struggle. Defendant punched her in the head and smashed Montgomery's head against a concrete wall several times. Montgomery screamed and defendant fled.
Cynthia Knapp testified that on September 21, 1984, at 12:50 a.m. (approximately two hours before defendant's attack on Powell), she was walking down the street when defendant grabbed her by encircling her chest with his left arm. Defendant then placed a sharp object in her right side and said, "Don't move or I will kill you." Defendant told Knapp not to scream and to act normal because they were "just going to have some fun." Knapp screamed anyway, twisted free, and enlisted the aid of a passing cyclist. Defendant fled.
The presentence report indicated that defendant was a 19-year-old graduate of Urbana High School with no prior offenses. The report also revealed that defendant was employed variously at summer and part-time jobs most of which were at restaurants. In mitigation, defendant presented eight character witnesses who testified that he was a good worker and a good student with potential. Two of defendant's teachers testified that he was originally an EMH student, but had overcome that disability and now helped tutor younger students. Defendant's brother testified that he was prepared to help defendant matriculate into Eastern Illinois University. Defendant's pastor testified that defendant regularly attended church and participated in youth activities. A neighbor testified that defendant was personable, intelligent, and had done a nice job maintaining the neighbor's lawn. Finally, defendant's mother, sister, and another family friend testified in the same vein as to defendant's good character.
During argument, the prosecution recommended that defendant be sentenced to the maximum term of 15 years' imprisonment. Defendant requested probation or periodic imprisonment or at most, a minimum 4-year term. During his argument the prosecutor made extensive reference to the testimony presented by defendant's two other victims. The trial court momentarily stopped the prosecutor and asked if the defense had any objection to consideration of this testimony. The defense said that it did not.
The trial court made extensive findings with regard to each factor in mitigation and aggravation. In doing so, the judge considered all three attacks. The only mitigating factors which the trial court found were that defendant had no history of criminal conduct and that it was uncertain, but possible, that defendant would comply with probation.
Specifically, the trial court found that defendant's conduct did cause or threaten harm because he used a weapon in the Knapp attack and repeatedly struck Montgomery's head against a concrete wall. The judge was uncertain as to this factor in the Powell attack because defendant had been interrupted by the intervention of Powell's roommate.
The trial court also stated that defendant did contemplate that his conduct would cause or threaten serious harm based on the testimony of Knapp and Montgomery. Citing all three batteries, the court found there was no strong provocation for the crimes. The court also found that the loss to Powell could not be compensated because she was the victim of psychic injuries occurring from this type of random violence. ...