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People v. Brazee

August 21, 2002

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
KENNETH E. BRAZEE, DEFENDANT-APPELLANT.



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 Callum

Released for publication August 29, 2002.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
KENNETH E. BRAZEE, DEFENDANT-APPELLANT.

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 Callum

PUBLISH

Defendant, Kenneth E. Brazee, pleaded guilty to criminal sexual assault (720 ILCS 5/12--13(a)(1) (West 1992)). In exchange for the guilty plea, the State nol-prossed an additional charge of aggravated criminal sexual assault (720 ILCS 5/12--14(b)(1) (West 1992)). There was no agreement about defendant's sentence, however, and the trial court imposed an 11-year prison term. In an earlier appeal, People v. Brazee, 316 Ill. App. 3d 1230 (2000) (Brazee I), we vacated the judgment and remanded the cause with directions that the trial court sentence defendant to time served under the Juvenile Court Act of 1987 (Act) (705 ILCS 405/1--1 et seq. (West 1996)). On remand, the court sentenced defendant accordingly, but ruled that defendant stood convicted of a criminal offense even though he was sentenced as a juvenile under the Act. Defendant challenges that ruling in this appeal. We conclude that the judgment must be modified to reflect that defendant was adjudicated a delinquent minor and that the conviction must be vacated.

Defendant was born on July 4, 1977, and he was originally charged by complaint late in September 1998 when he was 21 years old. An indictment was returned about three weeks later charging defendant as follows:

"The Grand Jury Charges:

COUNT I

That between the 4th day of July, 1992 and the 30th day of November, 1995, *** [defendant] 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/512--14(b)(1). Class X

COUNT II

That between the 4th day of July, 1992, and the 30th day of November 1995, *** [defendant] 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). Class 1"

As noted, defendant pleaded guilty to criminal sexual assault and was sentenced to an 11-year prison term. Defendant did not move to withdraw his plea, but he did move for reconsideration of his sentence, arguing that it was excessive in light of his background and the nature and circumstances of the offense. The trial court denied the motion. In his first appeal, defendant argued that he should have been sentenced as a juvenile rather than as an adult. Although no formal factual basis was presented when defendant pleaded guilty, we examined the entire record to determine the factual basis underlying the plea,and we concluded that defendant was under the age of 17 at the time of the offense. Thus, pursuant to section 5--4(6)(c)(ii) of the Act (705 ILCS ...


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