Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

People v. Tomasello

April 19, 2002

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
ANTHONY TOMASELLO, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. Honorable Thomas R. Sumner, Judge Presiding.

The opinion of the court was delivered by: Justice Quinn

As amended May 24, 2002.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
ANTHONY TOMASELLO, DEFENDANT-APPELLANT.

Appeal from the Circuit Court of Cook County. Honorable Thomas R. Sumner, Judge Presiding.

The opinion of the court was delivered by: Justice Quinn

UNPUBLISHED

 Following a bench trial, defendant Anthony Tomasello was convicted of three counts of aggravated criminal sexual assault and was sentenced to three consecutive 15-year prison terms. His convictions and sentence were affirmed on direct appeal. People v. Tomasello, No. 1-98-4211 (2000) (unpublished summary order under Supreme Court Rule 23). Defendant subsequently filed a pro se petition for relief under the Post-Conviction Hearing Act (Post-Conviction Act) (725 ILCS 5/122-1 et seq. (West 2000)), which was summarily dismissed by the trial court. Defendant appeals, contending that his pro se petition set forth the gist of a meritorious claim based upon Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). For the reasons set forth below, we affirm the judgment of the trial court.

BACKGROUND

Defendant was convicted of three counts of aggravated criminal sexual assault under section 12-14(b)(ii) of the Illinois Criminal Code of 1961 (Criminal Code) (720 ILCS 5/12-14(b)(ii) (West 1996)). Defendant had sexually assaulted the victim, a 10-year-old boy, while the child was in his backyard. In our January 14, 2000, summary order affirming defendant's conviction and sentence, we rejected his claim that his sentence was excessive given his age, background and the circumstances surrounding commission of the crimes.

On August 8, 2000, defendant's pro se petition for post-conviction relief was filed with the circuit court. In his petition, defendant stated that he was sentenced to consecutive sentences on his aggravated criminal sexual assault convictions based upon the sentencing court's finding that the crimes were committed as part of a single course of conduct during which there was no substantial change in the nature of the criminal objective. He likened his consecutive sentences to an enhanced sentence and claimed that section 5-8-4(a) of the Illinois Unified Code of Corrections (Code of Corrections) (730 ILCS 5/5-8-4(a) (West 1996)), the section under which he was sentenced, was unconstitutional based upon the Supreme Court's Apprendi decision.

Quoting some select phrases from his sentencing hearing, defendant further alleged that although he did not receive an extended-term sentence, the sentencing court found that he was eligible for a 120-year term based upon the victim's age. *fn1 Again relying on Apprendi, defendant asserted that the sentencing court was without authority to impose an enhanced sentence based upon a determination as to the victim's age, where that basis was not pleaded in the indictment, submitted to the jury or proved beyond a reasonable doubt at trial.

His third basis for relief in his petition was that his due process rights were violated when Joe Pence, a fellow detainee at the Audy Home, was allowed to testify at defendant's sentencing hearing. According to defendant's petition, Pence testified that he had heard defendant proposition a resident at the Audy Home for sex and that defendant had attempted to sexually assault Pence. Attached to defendant's petition was the affidavit of Steven Hunter, defendant's attorney at trial, who averred that he had inadequate information relating to the alleged sexual assault on Pence to enable him to subpoena police reports relating to the incident. Hunter further averred that he was surprised by Pence's testimony and that, because Pence was himself a detainee-at the Audy Home, Hunter was unable to interview him.

In a written order, the trial court summarily dismissed defendant's petition. As relevant to this appeal, the trial court held that the Apprendi decision was not applicable in a post-conviction proceeding. The trial court also held that pursuant to section 5-5-3.2(c) of the Code of Corrections (730 ILCS 5/5-5-3.2(c) (West 1996)), defendant was indeed eligible for an extended-term sentence premised upon the victim's age. The trial court then held that defendant's claim that the judge "was mistaken when he stated that [defendant] was eligible for an extended term sentence" was waived. Citing People v. French, 210 Ill. App. 3d 681, 688-89 (1991), the trial court stated that the propriety of defendant's sentence was premised upon ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.