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January 7, 1994


Appeal from the Circuit Court of Lake County. No. 91-CF-1722. Honorable Christopher C. Starck, Judge, Presiding.

Released for Publication February 8, 1994.

McLAREN, Geiger, Doyle

The opinion of the court was delivered by: Mclaren

JUSTICE McLAREN delivered the opinion of the court:

Defendant, Roberto Dominguez, pleaded guilty to aggravated battery (Ill. Rev. Stat. 1991, ch. 38, par. 12-4(a) (now 720 ILCS 5/12-4(a) (West 1992))). The court sentenced him to an extended term of 10 years' imprisonment. The court found two of the factors justifying an extended-term sentence to be applicable. The court found that the offense was accomplished by means of "exceptionally brutal and heinous behavior indicative of wanton cruelty" (Ill. Rev. Stat. 1991, ch. 38, par. 1005-5-3.2(b)(2) (now 730 ILCS 5/5-5-3.2(b)(2) (West 1992))) and that defendant committed the battery "as part of a ceremony, rite * * * practice or activity" of a "religious, fraternal, or social group" (Ill. Rev. Stat. 1991, ch. 38, par. 1005-5-3.2(b)(6) (now 730 ILCS 5/5-5-3.2(b)(6) (West 1992))). Defendant appeals, contending that (1) section 5-5-3.2(b)(2) is unconstitutionally vague and overly broad; (2) section 5-5-3.2(b)(6) is unconstitutional since it denies the existence of consent of the victim as a defense or mitigating factor; (3) that even if the sentencing provisions are constitutional, the court abused its discretion in imposing the maximum extended-term sentence; and (4) defendant is entitled to receive credit against his sentence for two additional days spent in custody prior to sentencing.

The State presented the following factual basis for the plea. Keith Smith would testify that on August 15, 1991, he was a member of the Latin Lovers street gang in Waukegan. Smith wanted to leave the gang, but was informed that he would first have to undergo a "violation" in which he would be beaten head to toe for three minutes by three other gang members.

Smith's doctor would have testified that Smith was in a coma for several months following the beating and suffered permanent brain damage. Smith had no recollection of events at the park where he was beaten.

Waukegan police detective Yarc would testify that defendant admitted to being one of the people who beat Smith on August 15. Felipe Diaz would testify that defendant, Carlos Cortez, Francisco Aguirre and Victor Morales entered the park with Smith after discussing the "violation" with him. Diaz later saw the badly beaten Smith in the park.

Defense counsel, as well as defendant himself, agreed that defendant had caused great bodily harm to Smith without authority. Defense counsel refused to stipulate to Diaz's proposed testimony, contending Diaz was the gang chief and had ordered the beating. The court accepted defendant's guilty plea as being knowing and voluntary.

We note that Aguirre and Morales were found guilty following a jury trial of the same offense. Morales received a 4 1/2-year sentence and Aguirre was sentenced to a 10-year term. This court recently affirmed their convictions and sentences. ( People v. Morales 1993 Ill. App. LEXIS 1669 (2d Dist. Nov. 9, 1993), Nos. 2-92-0098 and 2-92-0154, consolidated.) Cortez was never apprehended.

Following the acceptance of the plea, the court ordered the preparation of a presentence report. On January 9, the court sentenced defendant to 10 years' imprisonment, the maximum extended-term sentence for this offense. The court found both that the offense was committed in a brutal and heinous manner indicative of wanton cruelty and that the offense occurred as part of a gang activity. The court denied defendant's motion to withdraw his guilty plea and defendant perfected this appeal.

Defendant's first contention is that section 5-5-3.2(b)(2), providing for an extended-term sentence where an offense is committed in an extremely brutal and heinous manner, is unconstitutionally vague and overly broad. Defendant contends that the phrase "exceptionally brutal and heinous behavior indicative of wanton cruelty" does not provide the sentencing court with any meaningful guidance concerning when an extended term may be imposed and therefore permits arbitrary and discriminatory application. Defendant relies on a line of Supreme Court cases holding that similar phrases failed to provide sentencing juries in capital cases with sufficient guidance in determining when the death penalty may be imposed. See Maynard v. Cartwright (1988), 486 U.S. 356, 100 L. Ed. 2d 372, 108 S. Ct. 1853.

Defendant's argument is fatally flawed for several reasons. Initially, courts of this State have repeatedly rejected similar constitutional challenges to section 5-5-3.2(b)(2) and related provisions. In People v. La Pointe (1981), 88 Ill. 2d 482, 431 N.E.2d 344, the supreme court affirmed the validity of section 5-5-3.1 of the Unified Code of Corrections (Ill. Rev. Stat. 1991, ch. 38, par. 1005-5-3.1 (now 730 ILCS 5/5-5-3.1 (West 1992))) which provides for a sentence of natural-life imprisonment for murder based on the identical aggravating factor at issue here.

In People v. Andrews (1989), 132 Ill. 2d 451, 548 N.E.2d 1025, the court, relying on La Pointe, found section 5-5-3.2(b)(2) constitutional. The court noted that the extended-term sentencing provisions were not intended to convert every offense into an extraordinary offense subject to an extended-term sentence, noting that all murders are brutal and heinous to a certain degree. The court noted, however, that the statute requires that the offense be "exceptionally" brutal and heinous. ( Andrews, 132 Ill. 2d at 466.) This court has similarly rejected constitutional challenges to section 5-5-3.2(b)(2) nearly identical to that made here. ( People v. Hernandez (1990), 204 Ill. App. 3d 732, 744, 562 N.E.2d 219; People v. Brown (1990), 195 Ill. App. 3d 78, 91, 551 N.E.2d 1100; see also People v. Holman (1993), 250 Ill. App. 3d 503, 620 N.E.2d 1222; People v. Barnhill (1989), 188 Ill. App. ...

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