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11/30/88 the People of the State of v. Gary Binkley

November 30, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

GARY BINKLEY, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

531 N.E.2d 164, 176 Ill. App. 3d 539, 126 Ill. Dec. 31 1988.IL.1732

Appeal from the Circuit Court of Will County; the Hon. William R. Penn, Judge, presiding.

APPELLATE Judges:

JUSTICE BARRY delivered the opinion of the court. STOUDER and WOMBACHER, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BARRY

Defendant, Gary Binkley, entered a blind plea of guilty to criminal sexual assault of his minor daughter (Ill. Rev. Stat. 1985, ch. 38, par. 12-13(a)(3)), June, in August of 1986. Defendant was duly admonished, a factual basis for the plea was presented, and the court accepted the plea. The court sentenced defendant to serve the minimum term of imprisonment-four years-in the Department of Corrections. Defendant filed timely motions to vacate his plea and to reconsider his sentence. The motions were denied. Defendant appeals on grounds that the trial court based its sentencing determination on erroneous assumptions and that the prison sentence was an abuse of the trial court's discretion. We affirm.

At the sentencing hearing, it was established that defendant began sexual advances toward June when she was about 8 years old (June's version) or 11 years old (defendant's). Between that time and when June was 11 (June's version) or 15 (defendant's), defendant introduced her to oral sex and then intercourse on a monthly or semi-monthly basis until she was 17. The sexual activity took place only when no one else was around. Defendant did not physically force himself on his daughter, but she did not voluntarily engage in it either. According to June, defendant made her watch X-rated videos and look at "dirty books" as well. In June of 1986, June revealed the true nature of her relationship with her father to her boyfriend, David. David became upset. Defendant intervened and told his new bride, Josephine, what had been going on, and Josephine talked to June. June refused to consider going for counselling at the time. In September, she moved out of her father's home.

The instant charge was brought in October 1986. Defendant began seeing psychologist William McManus, Sr., in December. At defendant's sentencing hearing McManus testified that defendant was an excellent candidate for complete rehabilitation. Through testing, McManus had determined that defendant was not a pedophile, that he was of average intelligence, and that he felt a need for warmth and security in his family. McManus revealed that defendant's lack of inhibition in approaching his daughter for sexual gratification was a probable consequence of defendant's introduction to sex by a maternal aunt at age 12. Defendant confused his feelings of affection for his daughter with sex and perceived his sexual advances toward June as nonexploitive behavior to relieve financial and marital stresses in his life. McManus testified that defendant had shown significant progress during the period he was in treatment. McManus opined that at the time of the hearing defendant appreciated that his conduct had been wrong and would not be likely to repeat the offense.

Defendant also introduced the testimony of his wife, Josephine, and his 20-year old stepdaughter, Wendy Beiber. Josephine testified that defendant provided financial support for the family, consisting of defendant, herself, her daughter, Wendy, and Wendy's 20-month old son. Wendy worked as a waitress during the day and did not fear leaving her son, Cory, with defendant. Wendy testified that Cory was very attached to defendant and he spent a lot of time entertaining the child. Defendant testified that he worked as a cabinetmaker. In addition to supporting his present family, defendant stated that he was paying court-ordered support for a son, Matthew. Defendant stated that he deeply regretted having hurt his daughter and that he wanted her to have counseling.

Finally, it was established that June had attended a few counseling sessions for children of sexual abuse, but that her mother had decided that it was too much trouble to bring June to the counselor, and for this reason the sessions were discontinued.

Based on the evidence presented, defense counsel argued that defendant's lack of any significant criminal record, the importance of his continued support for his family, and his good prospects for rehabilitation made him a candidate for probation. The prosecution urged the court to impose a six-year term of imprisonment. Before imposing a sentence, the court expressed its opinion that a sentence of probation would deprecate the seriousness of the offense, and stated further that probation was unavailable to the defendant since the court could not affirmatively deal with the safety and welfare of the victim pursuant to section 5-5-3(e) of the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1985, ch. 38, par. 1005-5-3(e)).

In his first issue on appeal defendant contends that the sentencing court's denial of probation was the product of various errors, including misapplication of relevant statutory authority. The court considered both section 5 -- 6 -- 1(a) and section 5 -- 5 -- 3(e) of the Unified Code of Corrections before imposing the four-year minimum prison sentence for this offense. The former recites in relevant part that

"[except] where specifically prohibited by other provisions of this Code, the court shall impose a sentence of probation or conditional discharge . . . unless . . . the court is of the opinion that:

(2) probation or conditional discharge would deprecate the seriousness of the offender's conduct and would be inconsistent with the ends of Justice." (Emphasis added.) (Ill. ...


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