Appeal from the Circuit Court of Winnebago County. No. 98--CF--2536 Honorable Frederick J. Kapala, Judge, Presiding.
The opinion of the court was delivered by: Justice Colwell
Defendant, Kenneth E. Brazee, pleaded guilty to one count of criminal sexual assault (720 ILCS 5/12--13(a)(1) (West 1992)). In exchange for the plea, the State agreed to dismiss a charge of aggravated criminal sexual assault (720 ILCS 5/12--14(b)(1) (West 1992)). No agreement was made as to sentence. The trial court sentenced defendant to 11 years' imprisonment. On appeal, defendant argues that he should have been sentenced as a juvenile rather than as an adult. Alternatively, defendant contends that the sentence imposed by the trial court was excessive. Because we agree with defendant's first contention, we vacate defendant's sentence and remand with directions.
FACTUAL AND PROCEDURAL BACKGROUND
On September 29, 1998, defendant was charged by complaint with two counts of aggravated criminal sexual assault (720 ILCS 5/12--14(b)(1) (West 1992)). Count I of the complaint alleged that between July 4, 1992, and October 31, 1992, defendant committed the offense of aggravated criminal sexual assault "in that the said defendant, who was 17 years of age or older, committed an act of sexual penetration with [D.K.], who was under 13years [sic] of age when the act was committed," in that defendant placed his penis in D.K.'s anus. Count II of the complaint alleged that identical conduct occurred between November 1, 1992, and December 31, 1992.
On October 8, 1998, defendant filed a motion to dismiss the charges against him. Defendant presented his motion to the court the same day. He argued that the complaint, as charged, failed to allege sufficient facts to constitute aggravated criminal sexual assault. According to defendant, the alleged ages of defendant and the victim constituted the only basis for the aggravating circumstance. However, defendant contended that, since he was only 15 at the time the assaults allegedly occurred, the case should have been filed in juvenile court. Attached to defendant's motion was a copy of his birth certificate, which showed a birthdate of July 4, 1977. The court continued the case for a hearing on defendant's motion and for the State to investigate defendant's position.
On October 21, 1998, defendant again presented his motion, reiterating that the action belonged in juvenile court because he was only 15 at the time that he allegedly committed the crimes with which he was charged. The trial court explained that, in order to determine whether it had jurisdiction, it needed to "have an evidentiary hearing of some type." However, the court was not prepared to hold a hearing on that date.
On October 23, 1998, defendant was arraigned on a two-count indictment that was filed on October 21, 1998. Count I alleged:
" [B]etween the 4th day of July, 1992 and the 30th day of November, 1995, *** KENNETH BRAZEE committed the offense of AGGRAVATED CRIMINAL SEXUAL ASSAULT, in that the said defendant, who was 17 years of age or older, knowingly committed an act of sexual penetration with [D.K.], who was under 13 years of age when the act was committed, in that the said defendant placed his penis in the anus of [D.K.], in violation of 720 ILCS 5/12-14(b)(1)."
"[B]etween the 4th day of July, 1992 and the 30th day of November, 1995, *** KENNETH BRAZEE committed the offense of CRIMINAL SEXUAL ASSAULT in that the said defendant knowingly committed an act of sexual penetration with [D.K.] by use of force, in that said defendant placed his penis in the anus of [D.K.], in violation of 720 ILCS 5/12-13(a)(1)."
On December 11, 1998, defendant pleaded guilty to count II of the indictment. In exchange, the State agreed to dismiss count I of the indictment. After reading count II, the court informed defendant that the sentencing range for criminal sexual assault is 4 to 15 years, unless the extended-term provisions apply, in which case the range is from 15 to 30 years.
The cause proceeded to a sentencing hearing on January 26, 1999. At that hearing, the State introduced the statement defendant gave to police in which he admitted to sexually molesting D.K. and D.K.'s two sisters. In the statement, defendant indicated that he began sexually molesting D.K. when D.K. was five or six years old. Defendant estimated that he ceased molesting D.K. "around the end of 1992 or 1993." Defendant attributed his actions to the fact that he was molested as a child. Also admitted into evidence were victim impact statements prepared by D.K. and D.K.'s two sisters.
In addition, the State called D.K. to testify. D.K., who was 15 years old at the time of the sentencing hearing, testified that he pleaded guilty to criminal sexual assault of a younger child. The juvenile court sentenced him to probation. D.K. stated he learned of this type of behavior from what had happened to him. D.K. thought that defendant started molesting him when he was "around 6 or 7" and that defendant ceased molesting him when D.K. was "around 13." D.K. explained that defendant is his cousin and that the molestations would occur at defendant's house on weekends and other days when school was not in session. D.K. testified that defendant's crime negatively impacted his schoolwork and his social life. After D.K. testified, defendant made the following statement in elocution:
"Your Honor, I know what I did was wrong. I have had my counseling for it, you know. I feel that with the counseling I understand why I did it. I would like you to take that into consideration. Also take into consideration, if you ...