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People ex rel Waller v. McKoski

April 19, 2001

THE PEOPLE OF THE STATE OF ILLINOIS EX REL. MICHAEL J. WALLER, STATE'S ATTORNEY OF LAKE COUNTY, PETITIONER,
v.
RAYMOND J. MCKOSKI, CIRCUIT JUDGE OF THE 19TH JUDICIAL CIRCUIT, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Justice McMORROW

Docket No. 89300-Agenda 14-September 2000.

Michael J. Waller, State's Attorney of Lake County, brings this original action for mandamus (Ill. Const. 1970, art. VI, §4(a)) to compel the circuit court, pursuant to section 5-8-4(b) of the Unified Code of Corrections (730 ILCS 5/5-8-4(b) (West 1998)), to impose consecutive, rather than concurrent, sentences upon defendant, Roberto Flores. For the reasons that follow, the writ of mandamus is granted.

BACKGROUND

On August 17, 1999, defendant was convicted by a jury of three counts of predatory criminal sexual assault of a child. 720 ILCS 5/12-14.1 (West 1998). These convictions related to three separate incidents, involving three different minors, which occurred in Lake County between December 1, 1997, and August 1, 1998. Defendant's sentencing hearing was held on October 22, 1999. During this hearing, the prosecutor argued that "pursuant to statute," specifically, section 5-8-4(a) of the Unified Code of Corrections (730 ILCS 5/5-8-4(a) (West 1998)), the sentences imposed upon defendant with respect to each count must be imposed consecutively. The relevant portion of subsection (a) of section 5-8-4 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 *** the defendant was convicted of a violation of Section *** 12-14.1 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 1998).

Subsequent to the prosecutor's request for the imposition of consecutive sentences, the following exchange occurred between the prosecutor and the court:

"THE COURT: What do you mean pursuant to statute? This isn't the single transaction on three different victims?

[Prosecutor]: It is in the same course of conduct.

THE COURT: Three different victims, three different days isn't the same course of conduct. He can't interpret the same course of conduct as being an overall reason to sexually assault children any more than rob a gas station.

Maybe the law has changed, but I looked this up a few years ago. You can't tell from the statute. Your interpretation would be plausible by the words of the statutes themselves."

In the alternative, the prosecutor argued before the circuit court that, even if the offenses forming the basis of defendant's convictions were found to have not been committed in the "same course of conduct" within the meaning of subsection (a) of section 5-8-4, the imposition of consecutive sentences was nevertheless required pursuant to subsection (b) of section 5-8-4. The relevant portion of subsection (b) provides:

"The court shall not impose a consecutive sentence except as provided for in subsection (a) unless *** multiple sentences of imprisonment are imposed on a defendant for offenses that were not committed as part of a single course of conduct during which there was no substantial change in the nature of the criminal objective, and one of the offenses for which the defendant was convicted was *** a violation of Section *** 12-14.1 of the Criminal Code of 1961, in which event the Court shall enter sentences to run consecutively." 730 ILCS 5/5-8-4(b) (West 1998).

The prosecutor contended that, under the facts presented in this case, subsection (b) mandated that the circuit court impose consecutive sentences upon defendant. First, the prosecutor noted, defendant had been convicted of three counts of predatory criminal sexual assault of a child under section 12-14.1 of the Criminal Code of 1961 (720 ILCS 5/12-14.1 (West 1998)), a triggering offense mandating the imposition of consecutive sentences. Second, the prosecutor argued that the nature of defendant's criminal objective, specifically, his sexual gratification, had not substantially changed during the course of committing the offenses. After a brief recess, the circuit court rejected the State's argument that either subsection (a) or (b) of section 5-8-4 mandated the imposition of consecutive sentences. The circuit court stated:

"The problem is not only the time span, but the single course, the nature of the criminal objective. In my opinion, we have three victims, the nature of the criminal objective changes. We can't classify this as the criminal objective being ...


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