Appeal from the Circuit Court of the 10th Judicial Circuit Peoria County, Illinois Nos. 97--CF--163; 97--CF--152; 97--CF--143; 97--CF--122; 97--CF--115; & 97--CF--113 Honorable Donald Courson, Judge Presiding
The opinion of the court was delivered by: Justice Homer
Defendant pled guilty to three counts of predatory criminal sexual assault of a child (720 ILCS 5/12--14.1(a)(1) (West 1996)) and three counts of aggravated criminal sexual abuse (720 ILCS 5/12--16(d) (West 1992)). He was sentenced to an aggregate of 80 years in prison. Defendant appeals arguing that he was sentenced in excess of the maximum term authorized by section 5--8--4(c)(2) of the Unified Code of Corrections (730 ILCS 5/5--8--4(c)(2) (West 1996)). Defendant also maintains that he was improperly sentenced based on the trial judge's mistaken belief that defendant was eligible for an extended-term sentence. Finally, defendant complains that one count of predatory criminal sexual assault of a child should be reversed because the indictment was defective. After our careful review, we affirm defendant's convictions but remand for resentencing.
Defendant was charged with six counts of child pornography (720 ILCS 5/11--20.1(a)(1) (West 1996)), six counts of aggravated criminal sexual abuse (720 ILCS 5/12--16 (West 1992)), three counts of predatory criminal sexual abuse of a child (720 ILCS 5/12--14.1(a)(1) (West 1996)), and two counts of aggravated criminal sexual assault (720 ILCS 5/12--14(b)(1) (West 1992) and 720 ILCS 5/12--14(b)(i) (West 1996). The same basic pattern of abuse occurred with each of the young male victims involved. Defendant met the victims at a community development center as well as through the Roosevelt School after-school program. The boys were persuaded to come to defendant's home. They would then pose for videos, first in costume and then in the nude. Acts of sexual penetration later occurred with three of the victims.
Defendant pled guilty to three counts of predatory criminal sexual assault of a child (720 ILCS 5/12--14.1(a)(1) (West 1996)) and three counts of aggravated criminal sexual abuse (720 ILCS 5/12--16(d) (West 1992)) in exchange for dismissal of the remaining charges and a promise from the State not to file any new charges based on information it had as of the date of the plea. At the plea hearing, the trial judge instructed defendant as to the potential sentencing range on each charge, as follows: (1) the charges of aggravated criminal sexual abuse were Class 2 felonies carrying a sentencing range of 3 to 7 years each with the possibility of an extended-term sentence (maximum 14 years each) if the victim was "12 years or under" at the time of the offense; and (2) the charges of predatory criminal sexual assault of a child were Class X felonies carrying a sentencing range of 6 to 30 years each with the possibility of an extended-term sentence (maximum 60 years each) if the complainant was "12 years or under" at the time of the offense. The trial judge also advised defendant that he could be given consecutive sentences if the court found it necessary to protect the public and that the maximum sentence defendant could receive would be 120 years.
The trial judge found that there was a factual basis for defendant's plea of guilty on each charge. The guilty plea was accepted, a presentence investigation was ordered, and a sentencing hearing was scheduled.
At the sentencing hearing, the court considered the presentence investigation report, which showed that defendant was 53 years old. Defendant had a 1978 conviction for child pornography and two 1995 traffic convictions. The State presented a 12-minute video compiled from four of the 61 video tapes found at defendant's apartment. The video showed defendant engaged in the charged conduct. Defendant made a statement to the court expressing his remorse and a desire to terminate his own life.
The trial court found that there were no statutory mitigating factors present. In addition, the court noted factors in aggravation, including defendant's criminal history, defendant's use of his position of trust in the community to commit his crimes, and the necessity of deterring others. The trial judge imposed consecutive sentences of 30, 30, and 20 years for the predatory criminal sexual abuse of a child charges and concurrent terms of seven years each for the aggravated criminal sexual assault charges.
Defendant filed a motion to withdraw his plea and a motion to reconsider his sentence. In the motion to withdraw, defendant alleged that his plea was not knowing and voluntary because, sleep deprived and suffering from stress and anxiety at the time, he was unable to understand his rights. Defendant also alleged that he had a bona fide defense to some of the charges. In his motion to reconsider, defendant argued the sentence was excessive and was cruel and unusual punishment in that it essentially amounted to a life term. Both motions were denied; however, the matter was remanded on appeal because the Rule 604(d) (134 Ill. 2d R. 604(d)) certificate filed by trial counsel was insufficient.
Second amended motions to withdraw plea and to reconsider sentence were filed mirroring the allegations in the previously dismissed motions. This time, the Rule 604(d) certificate was adequate. Both motions were again denied. Defendant now appeals.
I. Aggregate of Consecutive Sentences
Defendant argues that the aggregate sentence of 80 years incarceration exceeds the maximum sentence authorized by law. Section 5--8--4(c)(2) of the Unified Code of Corrections provides, in relevant part, that "the aggregate of consecutive sentences shall not exceed the sum of the maximum terms authorized under Section 5--8--2 for the 2 most serious felonies involved." 730 ILCS 5/5--8--4(c)(2) (West 1996). Section 5--8--2 provides, in relevant part, as follows:
"(a) A judge shall not sentence an offender to a term of imprisonment in excess of the maximum sentence authorized by Section 5--8--1 for the class of the most serious offense of which the offender was convicted unless the factors in aggravation set forth in paragraph (b) of Section 5--5--3.2 were found to be present. Where the ...