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04/02/96 PEOPLE STATE ILLINOIS v. DANIEL PAUL

April 2, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
DANIEL PAUL RICHMOND, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of the 10th Judicial Circuit, Peoria County, Illinois. No. 93-CF-769. Honorable Robert E. Manning, Judge Presiding.

Released for Publication May 9, 1996.

Present - Honorable William E. Holdridge, Presiding Justice, Honorable Michael P. Mccuskey, Justice, Honorable Kent Slater, Justice. Justice Holdridge delivered the Opinion of the Court: McCUSKEY and Slater, J.j., concurring.

The opinion of the court was delivered by: Holdridge

The Honorable Justice HOLDRIDGE delivered the Opinion of the Court:

Following a jury trial, defendant Daniel Richmond was found guilty of 2 counts of aggravated criminal sexual abuse and 6 counts of criminal sexual assault (720 ILCS 5/12--16(d), 12--13(a)(4) (West 1992)) of 14-year-old T.A. The court entered convictions on counts 1, 2 (abuse), 5 and 6 (assault) and sentenced defendant to serve a total of 26 years in the Department of Corrections. Defendant appeals.

The issues before us are: (1) whether the indictment was defective for lack of specificity; (2) whether the trial court had jurisdiction to rule on defendant's post-sentencing motion; and (3) whether the court impermissibly increased defendant's sentences. For reasons that follow, we affirm defendant's convictions and modify his sentences.

THE INDICTMENT

Initially, defendant contends that, because sexual offenses can be committed in various ways, charges which are brought solely in the language of the statutes defining them are fatally deficient. Defendant argues that the indictment in this case was insufficient because the charges lacked descriptions of an "act of sexual penetration" (720 ILCS 5/12--13(a)(4) (West 1992)) and "sexual conduct" (720 ILCS 5/12--16(d) (West 1992)). He further argues that the charge of aggravated criminal sexual abuse required an allegation that the sexual conduct was "for the purpose of sexual gratification or arousal of the victim or the accused" (720 ILCS 5/12--12(e) (West 1992)).

The charges at issue are framed in the statutory language. Count 1 of the indictment charges:

"That on or about September 11, 1993, in *** Peoria County, State of Illinois, Daniel Paul Richmond committed the offense of AGGRAVATED CRIMINAL SEXUAL ABUSE in that he, knowingly committed an act of sexual conduct with [T.A.], who was at least 13 years of age but under 17 years of age and the defendant was at least 5 years older than [T.A.]"

Count 2 charges the same offense on September 12, 1993. Count 5 charges:

"That on or about September 11, 1993, in *** Peoria County, State of Illinois, Daniel P. Richmond committed the offense of CRIMINAL SEXUAL ASSAULT in that he, a person of the age of 17 years or older knowingly committed an act of sexual penetration with [T.A.], who was at least 13 years of age but under 17 years of age when the act was committed and the defendant held a position of supervision to [T.A.] as the babysitter on said date for [T.A.]"

Count 6 charges the same offense on September 12.

The precise question before us was addressed by our supreme court during the pendency of this appeal in People v. DiLorenzo, 169 Ill. 2d 318, 662 N.E.2d 412, 214 Ill. Dec. 846 (1996). In DiLorenzo, as here, defendant challenged the sufficiency of an indictment for the first time on appeal. Defendant argued that an instrument charging aggravated criminal sexual abuse was fatally defective unless it explicitly described an act of "sexual conduct" and alleged that such act was ...


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