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05/27/94 PEOPLE STATE ILLINOIS v. ANDRE WILLIAMS

May 27, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
ANDRE WILLIAMS, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. Honorable Thomas P. Cawley, Judge Presiding.

Rehearing Denied July 19, 1994. As Modified July 29, 1994. Released for Publication August 2, 1994. Petition for Leave to Appeal Denied December 6, 1994.

Giannis, Egan, Rakowski

The opinion of the court was delivered by: Giannis

MODIFIED OPINION

Justice Giannis delivered the opinion of the court:

Defendant, Andre Williams, was convicted by jury of four counts of aggravated criminal sexual assault and two counts of aggravated kidnaping. He was sentenced to a prison term of eight years for each of four counts of aggravated criminal sexual assault and four years for each of two counts of aggravated kidnaping, all terms to run consecutively (40 years). We have jurisdiction under Supreme Court Rule 603 (134 Ill. 2d R. 603).

At trial, two female complainants testified that they were waiting for a bus at approximately 11 p.m. when defendant drove up in a sub-compact automobile and pointed a gun at them. He told the women that he was a police officer and that they had to get into the car. One woman got into the passenger seat, the other into the back seat of the car. Defendant then drove into a nearby alley. He handcuffed one of the complainants to the steering wheel of the car and pointed his gun at the other in the back seat. He then forced the woman in the passenger seat to perform fellatio. Defendant subsequently forced the complainant who was sitting in the passenger seat to have intercourse with him. After having intercourse with the woman in the passenger seat, defendant demanded that the two women change seats. He then ordered the second woman to perform fellatio and he again had intercourse. The complainants testified that afterwards he dropped them off at a nearby corner and drove away.

Following defendant's conviction for four counts of aggravated criminal sexual assault, the trial court sentenced him to four consecutive sentences of eight years each pursuant to the terms of section 5-8-4(a) of the Unified Code of Corrections (the Act). Section 5-8-4(a) of the Act states in pertinent part:

"The court shall not impose consecutive sentences for offenses which were committed as part of a single course of conductduring which there was no substantial change in the nature of the criminal objective, unless, [1] one of the offenses for which defendant was convicted was a Class X or Class 1 felony and the defendant inflicted severe bodily injury, or [2] where the defendant was convicted of a violation of Section 12-13 or 12-14 of the Criminal Code of 1961 [i.e., criminal sexual assault or aggravated criminal sexual assault], in which event the court shall enter sentences to run consecutively." (730 ILCS 5/5-8-4(a) (West 1992).)

See People v. Wittenmyer (1992), 151 Ill. 2d 175, 195, 601 N.E.2d 735, 176 Ill. Dec. 37 (legislature intended two separate and distinct exceptions to the general rule that the court shall not enter consecutive sentences for offenses which were committed as part of a single course of conduct during which there was no substantial change in the nature of the criminal objective).

In this case, defendant was charged and convicted of four counts of aggravated criminal sexual assault under section 12-14. Defendant concedes that the statute thus requires consecutive sentencing. (See People v. Norfleet (1st Dist. Mar. 3, 1994), 1-94-0034; People v. McDade (1991), 219 Ill. App. 3d 317, 579 N.E.2d 1173, 162 Ill. Dec. 359; People v. Lipscomb (1991), 215 Ill. App. 3d 413, 574 N.E.2d 1345, 158 Ill. Dec. 952.) Defendant argues, however, that the statute violates the due process and equal protection clauses of the fourteenth amendment of the Constitution of the United States (U.S. Const., amend. XIV), as well as the due process and proportionate penalties clauses of the Illinois Constitution of 1970 (Ill. Const. 1970, art. I, §§ 2, 11).

The State responds by noting that defendant's constitutional challenges were not raised in the trial court either by objection or by way of a post-trial motion. It is well-established that both an objection at trial and a written post-trial motion raising the issue is necessary to preserve an alleged error for review. ( People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 119 Ill. Dec. 265.) The supreme court has subsequently indicated, however, that a constitutional challenge to a statute can be raised at any time. ( People v. Felella (1989), 131 Ill. 2d 525, 536, 546 N.E.2d 492, 137 Ill. Dec. 547; People v. Wade (1989), 131 Ill. 2d 370, 375-76, 546 N.E.2d 553, 137 Ill. Dec. 608; People v. Bryant (1989), 128 Ill. 2d 448, 454, 539 N.E.2d 1221, 132 Ill. Dec. 415.) Defendant has not, therefore, waived the issue of whether section 5-8-4(a) is constitutional.

In attacking the constitutionality of the Act, defendant bears a heavy burden. Statutes are presumed constitutional, and any doubt regarding a statute's constitutionality must be decided in favor of the law's validity. ( People v. Haywood (1987), 118 Ill. 2d 263, 271, 515 N.E.2d 45, 113 Ill. Dec. 236.) We must construe acts of the legislature so as to affirm their constitutionality and validity if it can reasonably be done. ( People v. Steffens (1991), 208 Ill. App. 3d 252, 258, 566 N.E.2d 985, 153 Ill. Dec. 135.) It is the party challenging the constitutionality of a statute that bears the burden of "clearly establishing" a constitutional violation. People v. Bales (1985), 108 Ill. 2d 182, 188, 483 N.E.2d 517, 91 Ill. Dec. 171.

SUBSTANTIVE DUE PROCESS AND EQUAL PROTECTION

Defendant first claims that section 5-8-4(a) violates his due process and equal protection rights. Because the statutory scheme at issue does not implicate either a suspect classification or a fundamental right, however, it violates neither equal protection nor due process so long as it bears a rational relation to a legitimate State goal. People v. Shephard (1992), 152 Ill. 2d 489, 499-500, 605 N.E.2d 518, 178 Ill. Dec. 724; People v. Windsor (1993), 242 Ill. App. 3d 1030, 1032, 611 N.E.2d 596, 183 Ill. Dec. 333.

Defendant argues that "if a defendant intends on raping a woman, and the defendant wants to engage in more than one type of penetration, the defendant will do this irrespective of whether he receives a consecutive sentence for each penetration." This same claim was rejected, however, in People v. Bowen (1993), 241 Ill. App. 3d 608, 609 N.E.2d 346, 182 Ill. Dec. 43. In Bowen, the court determined that the imposition of consecutive sentences for multiple penetrations in a criminal sexual assault case is rationally related to the legislative purpose of deterring additional assaults upon the victim. See also People v. Toliver (1993), 251 Ill. App. 3d 1092, 1100, 623 N.E.2d 880, 191 Ill. Dec. 290.

The supreme court has noted with each act of sexual assault, "the victim's psychological constitution and most intimate part of her being have been violently invaded." ( People v. Segara (1988), 126 Ill. 2d 70, 78, 533 N.E.2d 802, 127 Ill. Dec. 720.) This is true even when the sexual assault occurs during a single criminal episode. One of the obvious legislative purposes of section 5-8-4(a), in addition to deterring further crime upon the victim, is to more severely punish those offenders who commit violent and abhorrent criminal behavior, either through the infliction of severe bodily injury or by inflicting the ...


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