Appeal from the Circuit Court of Du Page County. No. 92-CF-261. Honorable Edward W. Kowal, Judge, Presiding.
Petition for Leave to Appeal Denied October 6, 1994.
The opinion of the court was delivered by: Bowman
JUSTICE BOWMAN delivered the opinion of the court:
Defendant, Albert J. Adamcyk, was tried in a bench trial and convicted of home invasion (Ill. Rev. Stat. 1991, ch. 38, par. 5/12-11(a)(2) (now 720 ILCS 5/12-11(a)(2) (West 1992))), residential burglary (Ill. Rev. Stat. 1991, ch. 38, par. 19-3(a) (now 720 ILCS 5/19-3(a) (West 1992))), unlawful restraint (Ill. Rev. Stat. 1991, ch. 38, par. 10-3(a) (now 720 ILCS 5/10-3(a) (West 1992))), and aggravated battery (Ill. Rev. Stat. 1991, ch. 38, par. 12-4(b)(2) (now 720 ILCS 5/12-4(b)(2) (West 1992))). The trial court sentenced him to concurrent terms of imprisonment of 18 years, 10 years, 2 years, and 3 years, respectively. Defendant timely appealed his convictions, and he raises the following issues: whether he was denied the effective assistance of counsel because his attorney failed to raise the defense of insanity; and whether his sentence for the home invasion conviction was excessive.
Three months before the trial, the court ordered that a preplea report be done on defendant. The report was filed on April 27, 1992. In the summary of the offense section, the report stated that defendant entered the home of the victim and pulled her out of the shower. He was wearing a nylon stocking over his head. He dragged her from the bathtub to the bedroom, threw her face down on the bed, and made "sexual movements on top of her buttocks which resembled intercourse." Defendant told the victim "that he had been wanting to talk to her for a couple of weeks, however, was afraid of being rejected by her." The victim asked why defendant did not call her, and he responded that he did not have her telephone number. Defendant also said "he was not going to hurt her, however, he had done this before and was on Probation for it." He told the victim he was married and did not want to lose his children. While sitting on top of the victim, he kissed her on the cheek through the stocking. Defendant got off the bed, took off the stocking, and began to cry.
"Defendant told her that he had been unhappily married to an oriental woman for the past 11 years and that he had two children. He indicated he had sex with his wife but there was no emotional fulfillment on his part. Even though he did not feel anything for his wife, he did not want a divorce. He told the [victim] that he could not get anyone to go out with him because he was married. Since no one wanted to date married men, he then had to do what he was doing to her. He added that he hated caucasian women because of that."
Before defendant left the victim's apartment, he told her she could call him "Jim," and he asked for her phone number.
The report set forth defendant's criminal history: in 1982 defendant was convicted of public indecency for masturbating while driving; in 1983 he was convicted of disorderly conduct as a "'peeping tom'"; in 1985 he again was convicted of disorderly conduct for looking into bedroom windows; in 1988 he jumped into a decorative waterfall fountain at Stratford Square Mall, resulting in a conviction of disorderly conduct; in 1991 he was convicted of criminal trespass to residence and sentenced to 12 months' probation after he attempted to remove a screen on an apartment. Defendant attempted suicide at the police station after that arrest. He also was twice convicted of driving under the influence of alcohol.
The preplea report further stated that defendant told the probation officer that as a child he was subjected to physical, psychological, and sexual abuse. Defendant was hospitalized for psychiatric problems regarding "sexual issues." He also reported attempting suicide several times. Defendant was first hospitalized in 1983 or 1984 after he attempted suicide. His diagnosis on discharge was "adjustment disorder with depression and suicidal ideation * * * and voyeurism." In 1990, he sought treatment for alcohol problems and was in therapy for a year. Defendant was hospitalized from February 22 to March 3, 1992. Defendant had "'an extensive past history of sexual abuse and * * * a recent history of voyeurism. While incarcerated, he reportedly became increasingly depressed and suicidal.'" Defendant "'presented with obsessive thinking, anhedonia, sleep and appetite disturbance, feelings of helplessness and hopelessness and depressed mood.'" Defendant was placed on Prozac and Anafronil. The final diagnoses were "Major Depression, Single Episode and Voyeurism." Defendant also was active in Sex Anonymous.
The trial began on June 12, 1992. In his opening statement, defense counsel conceded that the evidence would show that defendant entered the victim's apartment without authority, but counsel asserted that defendant was not guilty of home invasion because defendant did not intend to injure the victim. Counsel also argued that the evidence would show that the victim did not suffer bodily harm and that defendant did not intend to commit criminal sexual assault. Counsel conceded that the State would be able to prove the charge of unlawful restraint.
The victim testified that on the evening of January 29, 1992, she was alone in her apartment. She took a shower and was reaching for a towel when she saw defendant's reflection in the mirror. Defendant had pantyhose over his face, and he was wearing gloves. The victim screamed, and defendant grabbed her in the shower and stuffed her blouse in her mouth to silence her. The victim tried to kick and back away from defendant, and he told her to "shut up." He then dragged the victim out of the shower, and because of the victim's struggling, he banged her into the tub, the toilet, and the vanity. Defendant threw the victim facedown on the bed and straddled her, sitting on top of her buttocks. Defendant pushed her head into a pillow and put his fist in her mouth while he made "thrusting motions" against her. According to the victim, defendant simulated intercourse by rubbing against her buttocks. She could feel that he had an erection. Defendant also kneed her and kicked her down. He told her, "Shut up. It will feel good. You'll like it," and that she was beautiful and "hot."
When the victim began crying and stopped struggling, defendant asked why she was crying. She said she was scared, and defendant admitted that he was also frightened. Defendant explained that he had "done this before," he did not "want to lose [his] kids," and he knew the victim could get him "in a lot of trouble." The victim further testified:
"I said, well, why are you doing this to me? I have never done anything to you. I don't know you. Why do you want to hurt me?
He said he didn't want to lose his children. And I kept -- during this conversation, when we stopped fighting, I kept trying to turn my head and he still kept turning it away, pushing it into this pillow. He said, I don't want you ...