Appeal from the Circuit Court of Washington County. No. 95-CF-74 Honorable Lloyd A. Karmeier, Judge, presiding.
The opinion of the court was delivered by: Justice Chapman delivered the opinion of the court:
Following a stipulated bench trial, defendant Steve Gooden was found guilty of home invasion and aggravated criminal sexual assault. He was sentenced to concurrent terms of 12 years' imprisonment with credit for 302 days served. On appeal, defendant argues that his statutory right to a speedy trial (725 ILCS 5/103-5 (West 1996)) on the aggravated criminal sexual assault charge was violated. Defendant also argues on appeal that his sentence is void because Public Act 89-404 is unconstitutional. Defendant lastly argues that his 12-year prison sentences are excessive. We affirm.
On December 21, 1995, defendant was charged with one count of home invasion. He was arrested on the same date and did not post bond.
On December 27, 1995, a preliminary hearing was held at which Charlie Parker, the investigator for the Washington County State's Attorney's Office, testified that when he interviewed the victim, M.G., she stated that defendant, M.G.'s ex-husband, forced his way into her home and "sexually assaulted her." She then described to Parker an act of sexual intercourse between her and defendant.
On April 4, 1996, defendant made a motion for a continuance to the August trial setting so that he could seek funds for the hiring of an expert witness. The cause was continued to the August 19, 1996, jury setting.
On April 18, 1996, upon defendant's motion, Fred D. Krug, a psychiatrist, was appointed to examine defendant's mental fitness.
On July 26, 1996, the State filed an amended criminal information, which charged defendant with one count of home invasion and five counts of aggravated criminal sexual assault.
On August 1, 1996, trial was set for August 26, 1996.
On August 5, 1996, defendant filed a motion to dismiss the aggravated criminal sexual assault counts. The motion alleged that 120 days had elapsed between defendant's arrest and the filing of aggravated criminal sexual assault charges. Attached to the motion is a complaint for search warrant filed December 21, 1995. In the complaint for a search warrant for defendant's motor vehicle, the Washington County State's Attorney's investigator stated that on December 21, 1995, he interviewed M.G., who told him of the circumstances of the home invasion and that defendant "had sexual intercourse with" M.G.
On August 14, 1996, after a hearing, the court denied defendant's motion to dismiss the aggravated criminal sexual assault counts. During the hearing, the State's Attorney reviewed the reports that he had received from the State crime laboratory. According to the State's Attorney, an April 26 report stated that the DNA profiles of M.G. and defendant could not be matched. The May 25, 1996, report stated that because defendant had a vasectomy, DNA could not be matched but a standard blood test would be used. Blood analysis indicated that seminal material on M.G.'s panties could have originated with defendant. The State received the blood analysis report on June 10. Once the State received evidence corroborating the victim's statement, the additional counts of aggravated criminal sexual assault were filed. The State concluded that the home invasion and aggravated criminal sexual assault were separate acts.
On August 20, 1996, defendant's stipulated bench trial was conducted. The State proceeded on the home invasion charge and on one count of aggravated criminal sexual assault. After a finding of guilty, the remaining charges were dismissed. The stipulated facts are as follows. If M.G. were called to testify, she would testify that while sleeping on her bed on December 20, 1995, at approximately 7:30 p.m., she heard the sound of breaking glass. When she got up, she saw defendant, who was holding a gun. Defendant forced her back into the bedroom, pointed the gun at her, and yelled at her. They then went to the dining room and talked as defendant sometimes pointed the gun at her. He hit her in the upper chest area with the butt of the gun. When they started talking about their marriage, defendant hit M.G. in the head with the butt and barrel of the gun and hit her face with his fist. Their conversations were interspersed with defendant beating M.G. At one point, he asked her if she wanted him to take her to the hospital, but she declined. Defendant then left M.G.'s house to get cigarettes out of his car, got the cigarettes, and reentered the house. Defendant took M.G.'s hand, led her to the bedroom, and told her to take off her clothes. He took out a knife, which eventually was placed on a dresser. Defendant then performed oral and vaginal intercourse on M.G. He then asked her to shoot him, which she declined to do. Defendant placed the barrel of the gun at his head and screamed at M.G. to pull the trigger. She pulled the barrel away from his head, and he stated that he did not really want to die. During the entire episode, defendant appeared to be intoxicated. When defendant eventually left, M.G. called 9-1-1. The State's Attorney also recited the physical evidence and the potential testimony of investigating officers.
Defendant initially contends that his right to a speedy trial was violated when the amended criminal information was filed, which alleged four counts of aggravated criminal sexual assault in addition to the initial charge of home invasion. He argues that more than 120 days elapsed between the filing of the initial criminal information and the trial and that continuances granted to him on the home invasion charge cannot be attributable to him on the aggravated criminal sexual assault charge, because that charge was not in existence when the continuances were granted. One hundred and twenty days from December 21, 1995, was April 19, 1996. Defendant's argument has a basis in case law, since it has been held on several occasions that if new and additional charges arise from the same facts as did the original charges and the State had knowledge of these facts at the commencement of the prosecution, then the time within which trial is to begin on the new and additional charges is subject to the same statutory limitation that is applied to the original charges (People v. Williams, 94 Ill. App. 3d 241, 248-49, 418 N.E.2d 840, 846 (1981)). Williams also held that continuances obtained in connection with the trial of the original charges cannot be attributed to defendant with respect to the new and additional charges, because these new and additional charges were not before the court when those continuances were obtained. Williams, 94 Ill. App. 3d at 249, 418 N.E.2d at 846; see People v. Stanley, 266 Ill. App. 3d 307, 309-10, 641 N.E.2d 1224, 1226 (1994) (quoting Williams); People v. Rodgers, 106 Ill. App. 3d 741, 744, 435 N.E.2d 963 (1982) (same).
In support of its holding, Williams cited three cases to support the proposition that continuances are not chargeable on offenses not before the court: People v. Williams, 2 Ill. App. 3d 993, 278 N.E.2d 408 (1971), People v. Parker, 59 Ill. App. 3d 302, 375 N.E.2d 465 (1978), and People v. King, 8 Ill. App. 3d 2, 288 N.E.2d 672 (1972). In People v. Williams, 2 Ill. App. 3d 993, 278 N.E.2d 408 (1971), defendant was incarcerated on September 29, 1967, for the murder of Ambrose Lane and the attempted murder of William Thompson. In October 1967, Williams was indicted for the murder, and no indictment was sought or returned for the attempted murder. On June 5, 1968, an indictment was returned charging him with the attempted murder. The trial court dismissed the attempted murder indictment upon the grounds that the defendant Williams had been in custody for more than 120 days without having been brought to trial, and the State appealed. The Williams court upheld the dismissal of the attempted murder indictment and reasoned that the indictment on that charge was not before the court when the continuances were requested. Williams, 2 Ill. App. 3d at 994, 278 N.E.2d at 409. Although the Williams court stated that some continuances were attributable to the court, some to the State, and some to defendant, the opinion is not clear as to what continuances were not attributable to the defendant. There was no citation of authority for the proposition that the attempted murder charge should be dismissed because it was not before the court when the continuances were requested.
In King, defendant was placed in custody on March 4, 1968, and was charged with attempted murder. On October 4, 1968, he was indicted for unlawful use of weapons, which arose out of the same factual setting as the attempted murder. The appellate court concluded that the weapons charge should be dismissed. It relied entirely on the compulsory-joinder provisions of section 3-3(b) of the Criminal Code of 1961 ...