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10/23/97 PEOPLE STATE ILLINOIS v. VICTOR GARCIA

October 23, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
VICTOR GARCIA, APPELLANT. THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE, V. ROGER WALLACE, APPELLANT. THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE, V. AARON O'NEAL, APPELLANT.



Appeal from the Appellate Court, First District of Cook County. Case Numbers: AC1-94-0563, TR92CR19050. Hon. Edward M. Fiala, Jr., Trial Judge. Appeal from the Appellate Court, First District of Cook County. Case Numbers: AC1-94-0518, TR92 19050. Hon. Edward M. Fiala, Jr., Trial Judge. Appeal from the Appellate Court, First District of Cook County. Case Numbers: AC1-94-0393, AC1-94-0563, AC1-94-0518, TR92cr19050. Hon. Edward M. Fiala, Jr., Trial Judge.

The Honorable Justice Miller delivered the opinion of the court. Justice Nickels, dissenting. Justices Harrison and McMORROW join in this dissent.

The opinion of the court was delivered by: Miller

The Honorable Justice MILLER delivered the opinion of the court:

Victor Garcia, Roger Wallace, and Aaron O'Neal, defendants in these consolidated cases, were convicted of numerous crimes in the circuit court of Cook County for the gang rape of an 18-year-old female victim. In sentencing defendants, the trial judge failed to enter consecutive sentences on several convictions as required under section 5-8-4(a) of the Unified Code of Corrections (730 ILCS 5/5-8-4(a) (West 1992)). The relevant portion of section 5-8-4(a) provides:

"The court shall not impose 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, unless, 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 where the defendant was convicted of a violation of Section 12-13 or 12-14 [aggravated criminal sexual assault] of the Criminal Code of 1961, in which event the court shall enter sentences to run consecutively." 730 ILCS 5/5-8-4(a) (West 1992).

The appellate court found that the trial judge's imposition of several concurrent sentences in violation of section 5-8-4(a) rendered those sentences void. 281 Ill. App. 3d 602, 613, 667 N.E.2d 516, 217 Ill. Dec. 427. The court vacated all of defendants' sentences and remanded to the trial court for resentencing. 281 Ill. App. 3d at 615, 617.

Defendants, Victor Garcia (cause No. 81246), Roger Wallace (cause No. 81248), and Aaron O'Neal (cause No. 81274), each filed a petition for leave to appeal. 155 Ill. 2d R. 315(a); 134 Ill. 2d R. 612(b). We allowed defendants' petitions and consolidated them for purposes of this appeal.

BACKGROUND

The victim (S.B.) had been dating Victor Garcia for about one week. On the afternoon of June 2, 1992, S.B. and her friend Jessica met Garcia, Roger Wallace, Aaron O'Neal, and Richard Walters (a codefendant not a party to this appeal) at a park. Without S.B.'s knowledge, the four males had decided to initiate S.B. as a "Deucette"-a member of the female branch of the Insane Deuces street gang. A Deucette's initiation consists of engaging in sex with a number of male gang members.

After meeting at the park, S.B. agreed to go with Garcia, Wallace, O'Neal, and Walters to Walters' apartment in order to drink some alcoholic beverages. Jessica could not attend and left to pick up her sister. Once at the apartment, the group played a drinking game in which S.B. consumed approximately five to eight shots of alcohol in a short amount of time.

Following the drinking game, Garcia led S.B. to the bedroom of the apartment and asked S.B. to engage in consensual sex. S.B. refused. Despite S.B.'s refusal, Garcia removed S.B.'s clothing and penetrated S.B.'s vagina with his penis. When S.B. screamed for Garcia to stop, Garcia hit her several times and told her to shut up. Garcia then left the bedroom.

O'Neal and Walters entered the bedroom. O'Neal penetrated S.B.'s vagina with his penis. When S.B. screamed, O'Neal hit her. Walters penetrated S.B.'s mouth with his penis. Then, following O'Neal's instruction that Walters have intercourse with S.B., Walters either penetrated or touched S.B.'s vagina with his penis. Throughout this episode, S.B. was crying and screaming for them to stop. When O'Neal and Walters exited the bedroom, Walters was carrying a handgun.

Next, Wallace entered the bedroom. Wallace either penetrated or touched S.B.'s vagina with his penis. S.B. continued to cry and scream. In order to quiet S.B., Wallace hit her. Wallace then exited the bedroom.

Later, S.B. and the mattress from the bedroom were brought into the living room of the apartment. Pursuant to an instruction from O'Neal, Wallace penetrated or touched S.B.'s vagina with his penis. In order to quiet S.B.'s screams, Garcia held a gun to her head and threatened to kill her if she did not shut up. Wallace then penetrated S.B.'s mouth with his penis.

Garcia, O'Neal, and Wallace discussed whether S.B. should be killed. Following this discussion, but prior to any attempt on S.B.'s life, Walters left the apartment. Garcia and Wallace then choked S.B. with a plastic belt. S.B. went unconscious and urinated. However, the belt broke during the strangulation and S.B. survived.

The next morning, Garcia, O'Neal, and Wallace instructed S.B. not to tell her parents or the police what had happened. Defendants fabricated a story so that S.B. could explain her injuries without implicating defendants. Defendants quizzed S.B. regarding the story. Garcia and Wallace walked S.B. to a bus stop so that she could get home. Before the bus arrived, Garcia and Wallace left. After arriving at home, S.B. told her friend Jessica, her mother, the police, and emergency room medical personnel what had happened and not the story fabricated by defendants.

Later, Garcia, Wallace, O'Neal, and Walters were arrested and charged by indictment. Garcia, Wallace, and O'Neal were tried simultaneously in severed trials. Garcia and O'Neal were tried before separate juries. Wallace was tried in a bench trial. Richard Walters agreed to be a witness for the State in exchange for his plea of guilty and a 10-year prison sentence. Richard Walters is not a party to this appeal.

Cause No. 81246

Victor Garcia was 16 years old at the time of the crimes. Garcia was charged as an adult in a 56-count indictment. Prior to trial, the State nol-prossed 47 counts of the indictment. The State initially proceeded against Garcia on three counts of aggravated criminal sexual assault based on Garcia's penetration of S.B.'s vagina (counts 1, 9, 17). The counts were premised on three distinct aggravating factors: using a dangerous weapon; causing the victim bodily harm; and threatening the victim's life. 720 ILCS 5/12-14(a)(1), (a)(2), (a)(3) (West 1992).

The State also proceeded against Garcia on three counts of aggravated criminal sexual assault under a theory of accountability based on Wallace's penetration of S.B.'s vagina (counts 3, 11, 21). These counts were premised on the same three aggravating factors. In addition, the State proceeded against Garcia on one count of conspiracy (720 ILCS 5/8-2 (West 1992)) to commit aggravated criminal sexual assault (count 41); one count of criminal sexual assault (720 ILCS 5/12-13(a)(1) (West 1992)) based on Garcia's penetration of S.B.'s vagina (count 45); and one count of aggravated unlawful restraint (720 ILCS 5/10-3.1 (West 1992)) (count 56).

The jury found Garcia guilty of two acts of sexual penetration: his own penetration of S.B.'s vagina and, under a theory of accountability, Wallace's penetration of S.B.'s vagina. The jury also found Garcia guilty of the conspiracy, criminal sexual assault, and aggravated unlawful restraint charges.

At sentencing, the trial judge merged Garcia's convictions for the lesser included offenses of criminal sexual assault (count 45) and aggravated unlawful restraint (count 56) into Garcia's other convictions. No sentences were entered on these counts.

The judge sentenced Garcia to 30 years' imprisonment for aggravated criminal sexual assault based on count 1. The judge then sentenced Garcia to four, 30-year terms of imprisonment for aggravated criminal sexual assault based on counts 2, 9, 11, and 21 to be served concurrent with each other and concurrent with count 1. The judge sentenced Garcia on count 2 despite the fact that count 2 had been nol-prossed prior to trial. The judge failed to enter a sentence on count 3, a count submitted to the jury. Apparently, the judge transposed these two counts when imposing Garcia's sentences.

In addition, the judge sentenced Garcia to a 15-year concurrent term of imprisonment for conspiracy to commit aggravated criminal sexual assault (count 41). Finally, the judge sentenced Garcia to a 20-year term of imprisonment for aggravated criminal sexual assault (count 17) that was to run consecutively to counts 1, 2, 9, 11, 21, and 41. Taken together, the concurrent 30-year terms and the consecutive 20-year term totaled 50 years of imprisonment.

Garcia appealed his convictions and sentences. The appellate court stated that Garcia waived review of his sentences through his failure to challenge them in the trial court with a written motion pursuant to section 5-8-1(c) of the Unified Code of Corrections (730 ILCS 5/5-8-1(c) (West Supp. 1993)). Nevertheless, the court addressed Garcia's sentences because the sentences were related to the propriety of Garcia's convictions and because of our holding in People v. Arna, 168 Ill. 2d 107, 212 Ill. Dec. 963, 658 N.E.2d 445 (1995). In Arna, we found that an order imposing concurrent terms of imprisonment is void when consecutive terms of imprisonment are required by section 5-8-4(a). Arna, 168 Ill. 2d at 112-13.

The appellate court vacated Garcia's conviction and sentence for conspiracy to commit aggravated criminal sexual assault (count 41). The court stated that no person may be convicted of both the inchoate and the principal offense. See 720 ILCS 5/8-5 (West 1992). The appellate court also vacated Garcia's sentence for aggravated criminal sexual assault based on count 2 because the jury did not return a verdict of guilty on count 2.

In addition, the appellate court found that Garcia was improperly convicted on multiple counts arising from two single acts. See People v. Riley, 219 Ill. App. 3d 482, 493, 162 Ill. Dec. 194, 579 N.E.2d 1008 (1991). Counts 1, 9, and 17 concern the act of Garcia penetrating S.B.'s vagina. Counts 11 and 21 concern the act of Wallace penetrating S.B.'s vagina. However, the court did not remand to the trial court for a determination as to which two of the five convictions for aggravated criminal sexual assault Garcia was to be sentenced on. See People v. Segara, 126 Ill. 2d 70, 78, 127 Ill. Dec. 720, 533 N.E.2d 802 (1988). Instead, the court affirmed the convictions on counts 1 and 11 and vacated Garcia's convictions on counts 9, 17, and 21.

The appellate court found that because the sentences entered on counts 1 and 11 were concurrent, the sentences violated section 5-8-4(a) and were therefore void under Arna. The court vacated these sentences and remanded to the trial court so that two consecutive sentences could be entered on counts 1 and 11 in conformity with section 5-8-4(a).

The appellate court did not address Garcia's convictions for the lesser included offenses of criminal sexual assault (count 45) and aggravated unlawful restraint (count 56). The trial judge had ...


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