Appeal from the Circuit Court of Winnebago County. No. 97--CF--707 Honorable Michael R. Morrison, Judge, Presiding.
The opinion of the court was delivered by: Justice McLAREN
IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS
On July 2, 1997, defendant, Monte B. Spera, pleaded guilty to one count of aggravated criminal sexual abuse (720 ILCS 5/12--16(c)(1)(i) (West 1996)). The criminal complaint alleged that defendant was 17 years of age or older and that he committed an act of sexual conduct with a girl who was under 13 years of age at the time in that he intentionally fondled the breast and vaginal area of the victim for the purpose of sexually arousing himself. This offense is a Class 2 felony for which a sentence of three to seven years' imprisonment may be imposed (720 ILCS 5/12--16(g) (West 1996); 730 ILCS 5/5--8--1 (West 1996)) unless the court determines that defendant is eligible for and should be given probation (see 730 ILCS 5/5--6--1(a) (West 1996)).
At the hearing on January 2, 1998, the trial court considered the evidence in mitigation and in aggravation. The court appears to have considered in particular that defendant had either engaged in sexual activities with or made sexual advances toward other minors; it appears that defendant had no other previous criminal history. At the hearing, defendant challenged the sufficiency of the evidence of other sexual misconduct and objected to the concurrent sentences, arguing essentially that the sentences were legally incompatible. The court sentenced defendant to a three-year term of imprisonment in the Department of Corrections (DOC) and a concurrent four-year term of probation with numerous conditions attached.
Defendant filed a timely motion to reconsider the sentences. Relying on People v. Williams, 179 Ill. 2d 331 (1997), defendant argued, among other things, that concurrent terms of imprisonment and probation could not be lawfully imposed. The court denied this motion on May 1, 1998. Defendant timely appeals, arguing that the court exceeded its authority in imposing both a term of imprisonment and a concurrent term of probation. We agree. We vacate the order of probation with its attendant conditions and affirm the judgment in all other respects.
At the sentencing hearing, the trial court commented: "I cannot and will not deprecate the seriousness of what happened *** by placing the Defendant on probation by itself.
It is the sentence of this Court, so as not to deprecate the seriousness of this offense and to set an example for this Defendant who has taken people that have trusted him in affect [sic] turned their lives up side [sic] down and then hurt significantly some minor children. I cannot say to this Defendant that I don't find that you pose any risk to the public or to other children. Specifically, Mr. Sundberg has said you do pose a risk, so I find that it is therefore necessary, for the protection of the public and to not deprecate the seriousness of your offenses, to impose a term in the Department of Corrections for this Defendant."
The trial court commented that defendant may or may not be a pedophile but concluded that he fit the criteria. The court further stated:
"It is generally unheard of for the Courts to give probation and a prison term. I feel that in certain cases, sexual abuse being one, offenses like reckless homicide involving the use of alcohol, and in those cases where a person needs rehabilitation, that probation is consistent with the meaning of the legislative intent in setting out a series of types of Dispositions that a Court may impose in a criminal case and using a combination of those sentences.
It is clear as a condition of probation I cannot impose a term in the Department of Corrections. I am imposing, in affect [sic] concurrent sentences in this case, not consecutive ***."
At the hearing on the motion to reconsider the sentences, the court also commented:
"So my sentence had to serve two purposes:
First purpose was not to deprecate the seriousness of this offense. The second purpose in a way was to remove a risk from the public, but I realize with counseling he could be rehabilitated, and so I had to combine to meet the two of those because I couldn't deprecate the seriousness of this offense, otherwise I'd have to say, I'd have to lock him up, and how long you going to lock him up, indefinitely? You can't do that. That doesn't serve the benefit of the public. So I felt if I gave him the prison term and still saw he got counseling. *** I know for instance, Arizona mandates probation after a prison term for such offenders. Legislatively, maybe it would be better for Illinois to do that."
On appeal, defendant argues that People v. Williams, 179 Ill. 2d 331 (1997), supports his position that the two concurrent sentences cannot be imposed for the single offense to which he pleaded guilty. We agree that Williams supports his position. There is only a ...