Appeal from the Circuit Court of Lake County. No. 92-CF-55. Honorable Peter M. Trobe, Judge, Presiding.
The opinion of the court was delivered by: Doyle
JUSTICE DOYLE delivered the opinion of the court:
Defendant, Richard Madura, entered a plea of guilty in the circuit court of Lake County to two counts of criminal sexual assault (Ill. Rev. Stat. 1989, ch. 38, par. 12-13(a)(2) (now 720 ILCS 5/12-13(a)(2) (West 1992))) and was sentenced to concurrent terms of nine years' imprisonment. Defendant filed a motion for reconsideration, arguing that the trial court had failed to consider various factors in mitigation pursuant to section 5-5-3.1 of the Unified Code of Corrections (Ill. Rev. Stat. 1989, ch. 38, par. 1005-5-3.1 (now codified, as amended, at 730 ILCS 5/5-5-3.1 (West 1992))). Following the denial of his motion to reconsider, defendant filed a timely notice of appeal, arguing that the trial court had abused its discretion in sentencing defendant to nine year terms of imprisonment in light of various mitigating factors and because the trial court improperly regarded defendant's relationship with the victim as a factor in aggravation.
The following facts were presented at the sentencing hearing. Defendant was charged with molesting M.P., the 5-year-old child of his fiancee. Defendant had been dating the child's mother for several years. During this time defendant was not living with the victim's family, but defendant would regularly see the child, take him on outings, and occasionally baby-sit while his mother was at work and attending college.
Sometime prior to January 3, 1992, M.P. told his mother that defendant had fondled him. When she confronted defendant, he admitted the conduct and agreed to seek professional help. Defendant's counselor subsequently reported the abuse to authorities. On January 6 and 7, defendant contacted authorities and told them about the abuse. Defendant told the police he had fondled M.P. 25 to 35 times. During some of these incidents defendant performed fellatio on the victim and placed rubberbands on the boy's genitalia.
In mitigation, defendant argued that he had strong rehabilitative potential, including a desire to receive treatment in a sex offender program; that he would have been eligible for probation had he been married to the victim's mother (see Ill. Rev. Stat. 1989, ch. 38, par. 1005-5-3(e) (now 730 ILCS 5/5-5-3(e) (West 1992))); that he sought counseling before the authorities were notified; that he earned his G.E.D. at age 32 while incarcerated on these charges; that he had maintained steady employment; and that he had no prior criminal record.
The trial court imposed concurrent sentences of nine years' imprisonment, noting:
"It's true the Defendant has--up to this point, does not have any criminal record, has held a job, been a member--at least apparently, a law-abiding member of society. On the other hand, this is not a single, isolated incident, but a continuous--or a continual situation where the Defendant abused and took advantage of his relationship with this victim. He was--acted as a father, did family outings with the child, gained the child's confidence and trust, and abused that confidence and trust to his own advantage by repeatedly sexually abusing this victim."
Defendant's main contention is that the trial court improperly considered as an aggravating factor that defendant committed the underlying assaults by taking advantage of a position of trust and confidence he held with respect to the victim. Defendant argues that because a court may consider and impose probation for the charged offense where the defendant is a family member of the victim at the time of the commission of the offense (see Ill. Rev. Stat. 1989, ch. 38, par. 1005-5-3(e) (now 730 ILCS 5/5-5-3(e) (West 1992))), his relationship with the victim in this case should not have been considered in aggravation against him. The law does not support this assertion.
Section 5-5-3(e) provides:
"In cases where prosecution for criminal sexual assault or aggravated criminal sexual abuse under Section 12-13 or 12-16 [of the Criminal Code of 1961] results in conviction of a defendant who was a family member of the victim at the time of the commission of the offense, the court shall consider the safety and welfare of the victim and may impose a sentence of probation only where:
(1) the court finds (A) or (B) or both are appropriate:
(A) the defendant is willing to undergo a court approved counseling program for a minimum ...