APPELLATE COURT OF ILLINOIS, SECOND DISTRICT
524 N.E.2d 677, 170 Ill. App. 3d 329, 120 Ill. Dec. 647 1988.IL.841
Appeal from the Circuit Court of Lake County; the Hon. Bernard E. Drew, Jr., Judge, presiding.
JUSTICE DUNN delivered the opinion of the court. UNVERZAGT and HOPF, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DUNN
Defendant, William Wallace, was convicted of aggravated criminal sexual assault and sentenced to a 20-year term of imprisonment in the Department of Corrections. This court initially affirmed his conviction but remanded for resentencing. (People v. Wallace (1986), 145 Ill. App. 3d 247 (hereafter referred to as Wallace I).) On remand, defendant's sentence was reduced to a term of 12 years. Once again, defendant appeals his sentence, arguing that the trial court erred in considering a victim impact statement when the victim was not present at the sentencing hearing and that the 12-year sentence is excessive. For the reasons set forth below, we affirm.
As set forth in Wallace I, the victim was sunbathing in her backyard when defendant drove by in a pickup truck. Defendant stopped, asked the victim for directions to another street, and left. Defendant returned and asked the victim if he could use her phone, but she refused, saying there was a phone at a nearby store. Defendant asked to use a phone book, and the victim again declined. Defendant turned to leave, and the victim went to the side door of her house. When she opened the door, defendant grabbed the door and entered the house behind her.
The victim testified that defendant forced her to the floor and forcibly had sexual intercourse with her. Evidence was introduced of bruises on the victim's back and arm caused by defendant's attack. Defendant's defense was that he did not penetrate the victim and that she had implicitly consented to his advances.
At defendant's first sentencing hearing, evidence of two other incidents was introduced. The day before the commission of the offense at bar, a woman was in the garage of her boyfriend's Gurnee home cleaning out his car. Defendant approached the garage and asked the woman for directions, but she told him she was unfamiliar with the area. Defendant asked to use the phone, the woman refused, and defendant left. The woman was in the house about 30 minutes later when the doorbell began ringing. She looked out and saw defendant. The woman called the police, and the ringing stopped. A short time later, a Gurnee police officer stopped defendant, who said he was looking for a particular address and had stopped to ask directions. Defendant said he had stayed at the door because he could tell someone was home, but he left when no one would answer the door.
Evidence was also introduced of another incident in South Carolina, where defendant had previously been stationed in the Navy. Apparently, a marine pilot's wife had been raped by a man who approached her house, asked for a boost for his car, followed her into her house, and assaulted her. It was reported that the pilot's wife picked defendant's picture from a photo lineup, but this information came to the sentencing court in the form of triple hearsay testimony.
In Wallace I, this court held that due to the proximity in time to and similarity between the offense at bar and the Gurnee incident, it was permissible for the trial court to infer that defendant would have sexually assaulted the woman there if he had been able to enter the house with her. (Wallace I, 145 Ill. App. 3d at 254.) This court did find, however, that consideration of the South Carolina incident was erroneous because of the questionable reliability of the evidence. (Wallace I, 145 Ill. App. 3d at 255.) Since we could not be certain that the 20-year sentence was not affected by consideration of the South Carolina charge, the cause was remanded for resentencing. Wallace I, 145 Ill. App. 3d at 256.
At defendant's second sentencing hearing, the State requested the trial court to take notice of the evidence adduced at the first hearing except for the South Carolina matter, and the trial court indicated it would do so. The State's only other evidence in aggravation was in the form of a letter written by the victim here in which she recounted her fear of the defendant and the continued devastating effect the assault had had on her life. Although the victim was not present when the prosecutor read the letter into the record, the State represented that the victim was in the courthouse and was available to be interviewed by defense counsel. This opportunity was declined, and defendant's objections to the introduction of the letter were overruled.
Over the State's objection, defendant submitted in mitigation a sentencing memorandum and accompanying exhibits. The exhibits included reports of two polygraph examinations; defendant's high school and junior college records; military records, including a letter of commendation; records from the Department of Corrections; and a letter from Leon Folkers, a volunteer chaplain in the Pontiac Correctional Center. Testimony was also presented by defendant's wife and his father, who both traveled to the hearing from Ohio. Mrs. Wallace testified that she and defendant had been married almost six years and had a two-year-old son. She also had three other sons whom defendant was adopting at the time of his arrest. She testified that defendant contributed to the family's support by working at prison jobs. She said she loved her husband and would stand by him. As noted above, the trial court reduced defendant's sentence to a term of 12 years' imprisonment.
We first consider whether the trial court erred in allowing the prosecutor to read the victim's letter into evidence when the victim was not present in the courtroom. Defendant contends that the plain language of the Bill of Rights for Victims and Witnesses of Violent Crime Act (Victims' Bill of Rights) (Ill. Rev. Stat. 1985, ch. 38, par. 1401 et seq.) requires the victim to be present before her impact statement can be considered. He argues that the victim's presence would ensure the reliability of her statement and that her absence denied him his constitutional right to confront his accuser. ...