SUPREME COURT OF ILLINOIS
547 N.E.2d 429, 132 Ill. 2d 86, 138 Ill. Dec. 262 1989.IL.1670
No. 67652. -- Appeal from the Appellate Court for the Third District; heard in that court on appeal from the Circuit Court of Will County, the Hon. William R. Penn, Judge, presiding. No. 67674. -- Appeal from the Appellate Court for the Fifth District; heard in that court on appeal from the Circuit Court of Jasper County, the Hon. Richard Brummer, Judge, presiding. No. 67761. -- Appeal from the Appellate Court for the Third District; heard in that court on appeal from the Circuit Court of Bureau County, the Hon. C. Howard Wampler, Judge, presiding.
JUSTICE CLARK delivered the opinion of the court. JUSTICE CALVO took no part in the consideration or decision of this case. JUSTICE MILLER, Dissenting.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CLARK
The defendants in these consolidated appeals were tried and convicted for separate and unrelated offenses. Each of the defendants received extended-term sentences pursuant to section 5-5-3.2(b)(3)(i) of the Unified Code of Corrections (Ill. Rev. Stat. 1985, ch. 38, par. 1005-5-3.2(b)(3)(i) (now Ill. Rev. Stat. 1987, ch. 38, par. 1005-5-3.2(b)(4)(i))), which authorizes the imposition of an extended-term sentence upon a defendant who is convicted of committing a felony against a person under the age of 12. In separate appeals, each defendant challenged his sentence arguing that in cases in which the age of the victim is an element of the offense, application of section 5-5-3.2(b)(3)(i) constitutes an impermissible double enhancement. In unpublished orders pursuant to Supreme Court Rule 23 (107 Ill. 2d R. 23), the appellate court affirmed the extended-term sentence of Ronald Ferguson for aggravated kidnapping but reduced his sentence for aggravated criminal sexual assault to a nonextended term of seven years (Ferguson, 173 Ill. App. 3d 1159 (unpublished order under Supreme Court Rule 23)); affirmed the conviction of Thomas DeWeese, but reduced his sentence to a nonextended term (DeWeese, 171 Ill. App. 3d 1167 (unpublished order under Supreme Court Rule 23)); and affirmed both the conviction and the extended-term sentence of Terry Kicinski (Kicinski, 172 Ill. App. 3d 1171 (unpublished order under Supreme Court Rule 23)). We granted review (107 Ill. 2d R. 315).
The sole issue presented by these consolidated appeals is whether a victim's age may be considered as an aggravating factor under section 5-5-3.2(b)(3)(i) where the victim's age is also an element of the offense for which the defendant is being sentenced. We hold that it may not.
We begin with a brief recitation of the facts in each case.
In No. 67652, the defendant, Ronald Ferguson, was charged by information with aggravated criminal sexual abuse (Ill. Rev. Stat. 1985, ch. 38, par. 12-16(c)(1)(i)) and aggravated kidnapping (Ill. Rev. Stat. 1985, ch. 38, par. 10-2(a)(2)) for detaining and engaging in sexual conduct with a minor under 13 years of age. At trial, the six-year-old complaining witness testified that she was helping the defendant clean his yard when he picked her up and carried her into his house. The defendant took her into a bedroom, shut the door, set her on a bed and undressed her. He tied her hands and feet with wire, taped her mouth, and began touching her. When someone knocked on the door, the complainant made a noise, prompting the defendant to punch her in the face. The defendant then opened the door, and found his mother standing there.
The defendant's mother, Louella Ferguson, testified that when she arrived home from work several people were in front of her house. Upon learning that they were looking for the complainant, she went to the defendant's bedroom, knocked on his door, and asked if he knew where the complainant was. When she heard a noise in the bedroom, she told the defendant to open the door. She found the complainant naked, with her mouth taped.
Officer James Klancher of the Joliet police department arrived at the Fergusons' house shortly after the defendant's mother discovered the complainant. At that time, the complainant related essentially the same events to Officer Klancher as in her testimony in court.
Illinois State police serologist Judy Welch testified that traces of seminal material were found both on a rectal swab taken from the complainant just after Louella Ferguson found her, and on the complainant's pants and underwear. The small amounts of the seminal material made it impossible to identify the source.
The defendant took the stand in his own defense. He testified that he was in his house when he heard a loud noise outside, and found the complainant on the swing set in his yard. When he told her to go home, she threw a rock at him. The rock bounced off his house and hit her in the head. The defendant told her that she could clean herself in his house. Because the complainant was afraid of the defendant's dog, he told her to use the upstairs bathroom. The defendant then fell asleep watching television. When he awoke, he found the complainant naked in his bedroom, with tape on herself. It was at this time that his mother came to the door. He denied touching the victim for sexual arousal or forcing her into the house.
Based on this evidence, Ferguson was convicted of aggravated criminal sexual abuse (Ill. Rev. Stat. 1985, ch. 38, par. 12-16(c)(1)) and aggravated kidnapping (Ill. Rev. Stat. 1985, ch. 38, par. 10-2(a)(2)). The trial court found the defendant to be eligible for extended-term sentences on both offenses by virtue of having committed a Class 2 felony within the last 10 years (Ill. Rev. Stat. 1985, ch. 38, par. 1005-5-3.2(b)(1)) and the fact that the victim was under 12 years of age at the time of the offense (Ill. Rev. Stat. 1985, ch. 38, par. 1005-5-3.2(b)(3)(i)). Ferguson was sentenced to concurrent extended terms of imprisonment of 30 years for aggravated kidnapping and 14 years for aggravated criminal sexual abuse.
On appeal, Ferguson argued that the trial court erroneously relied on the complainant's age in imposing extended-term sentences and that he should not have received extended-term sentences for both aggravated criminal sexual abuse and aggravated kidnapping. The appellate court determined that when a defendant is convicted of offenses of different classes, an extended-term sentence may be imposed only for the conviction of the most serious class, and reduced the sentence for aggravated criminal sexual abuse to a nonextended term of seven years. However, the appellate court determined that an extended-term sentence was properly imposed for the aggravated kidnapping conviction, and affirmed the 30-year sentence.
In No. 67674, Thomas DeWeese was charged by information with the offense of aggravated criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, par. 12-14(b)(1)) for engaging in sexual conduct with a child under 13 years of age. Pursuant to a negotiated plea, the State amended the information to a charge of aggravated criminal sexual abuse (Ill. Rev. Stat. 1985, ch. 38, par. 12-16(c)(1)(i)). The defendant pled guilty to aggravated criminal sexual abuse, and was sentenced to an extended-term sentence of 14 years, based on the ...