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People v. Shaw

September 01, 2004


Appeal from Circuit Court of Champaign County. No. 01CF1740. Honorable John G. Townsend, Judge Presiding.

The opinion of the court was delivered by: Justice Steigmann


In March 2002, defendant, Donald E. Shaw, pleaded guilty to criminal sexual assault (720 ILCS 5/12-13(a)(3) (West 2000)). In exchange for his plea, the State agreed to dismiss other charges but made no agreement with defendant regarding what sentence the trial court would impose. In April 2002, the court sentenced him to seven years in prison.

Defendant appeals, arguing that the trial court (1) erred by failing to conduct an initial inquiry into his pro se claim of ineffective assistance of counsel and (2) abused its discretion in sentencing him. We disagree and affirm.


In October 2001, the State charged defendant with predatory criminal sexual assault of a child (720 ILCS 5/12-14.1(a)(1) (West 2000)) and unlawful restraint (720 ILCS 5/10-3 (West 2000)). The State later charged him with criminal sexual assault (720 ILCS 5/12-13(a)(3) (West 2000)).

Defendant was originally represented by appointed counsel. However, in January 2002, he retained private counsel to represent him.

At the March 2002 guilty-plea hearing, the trial court admonished defendant that (1) no agreement existed regarding what sentence the court would impose and (2) if the court accepted his guilty plea, it could sentence him to either probation or between 4 and 15 years in prison. Defendant indicated that he understood the court's admonitions and without any reservations wished to plead guilty.

According to the factual basis the State provided for defendant's guilty plea, on either August 20 or 21, 2001, Cody C., defendant's then-3-1/2-year-old grandson, told his mother that defendant had touched Cody C.'s penis while Cody C. was visiting his father. During an August 27, 2001, interview, Cody C. made the following spontaneous statement to a police investigator: "[Defendant] sucked my wiener, I peed in his mouth, and [defendant] said it was good." Police also interviewed two other children, both of whom said that defendant had engaged in some sort of sexual conduct with them.

The trial court (1) accepted the State's factual basis, (2) found that defendant had knowingly and voluntarily entered his guilty plea, and (3) accepted the plea.

At the April 2002 sentencing hearing, Earl Modesto, a Department of Children and Family Services investigator, testified that on September 11, 2001, he interviewed Lindsay R., defendant's granddaughter and Cody C.'s cousin, who was then almost 10 years old. She told him that on one occasion during the past year, she was lying in bed when defendant, who was then living with her family, came into her bedroom, put his hand under the bed covers and down her pants, and rubbed her buttocks. He also rubbed her chest. Defendant then left Lindsay R.'s bedroom and went outside to smoke a cigarette. A few minutes later, he returned and "did the same thing" again.

Urbana police investigator Oscar Gamble testified as to his August 31, 2001, interview of Cody C. In particular, Gamble stated that Cody C. told him that (1) defendant had "sucked [Cody C.'s] wiener" and (2) "wiener" referred to Cody C.'s penis. That same day, Gamble interviewed Samantha S., Cody C.'s nearly 10-year-old half-sister, who was not related to defendant. Samantha S. told Gamble that on one occasion during the summer of 2001, she and Cody C. went to defendant's apartment complex to go swimming. She and Cody C. later went to defendant's apartment and sat in the living room. Defendant, who was wearing loose-fitting shorts that exposed his penis, sat on the couch and asked Samantha S. to sit beside him. She sat on the couch, and defendant asked her to move closer to him. When she did, he asked her to lie down on his lap as he grabbed her and pulled her head down toward his lap. Defendant forced Samantha S.'s head down to his thigh before she pulled away from him.

Defendant stated in allocution that if the trial court sentenced him to probation, he would comply with all probation conditions and "undergo to the best of [his] ability" any recommended treatment.

The trial court considered the presentence investigation report (PSI), which indicated, in pertinent part, as follows: (1) defendant, who was then 65 years old, had four prior convictions (three deceptive-practices convictions between 1964 and 1970 and a 1996 conviction for driving with a suspended driver's license); (2) defendant's three sisters, who lived in the Arcola area, had offered to let him live with one of them if he was sentenced to probation; (3) defendant served in the United States Marine Corps from 1953 to 1955 and was discharged early due to his low intelligence-quotient score; (4) defendant had a history of medical problems, including heart problems, stomach ailments, depression, and arthritis; (5) defendant had a drinking problem; (6) defendant had been prescribed medication for depression since the 1980s; and (7) a Champaign County Court Services officer had determined that defendant was eligible for intensive probation supervision.

The trial court also considered the following: (1) a written victim-impact statement from Cody C.'s mother, in which she indicated that her children have problems with trust, depression, fear, nightmares, and sleepwalking; (2) a written victim-impact statement from Cody C.'s mother on Cody C.'s behalf, in which she indicated that Cody C. was scared for her to leave him and followed her everywhere; (3) Samantha S.'s written victim-impact statement, in which she stated that she was afraid that defendant would victimize her again; (4) eight letters of support from defendant's family and friends, expressing (a) disbelief that defendant could have committed such an offense and (b) love and support for defendant; and (5) defendant's medical records from the Veterans' Affairs Medical Center in Danville, which indicated that between 1996 and 2000, defendant had been treated intermittently for depression with antidepressant medications.

After considering the evidence, defendant's statement, and counsels' arguments, the trial court sentenced defendant as stated. In May 2002, defendant filed an amended motion to reconsider his sentence. On June 14, 2002, defendant personally sent a letter to the court, in which he asked the court to "reevaluate [his] case." He also wrote, in pertinent part, as follows: "The sentence imposed on me shocked me, for my attorney gave me a misinterpretation of the seriousness of the felony. I was 65 [years] old at the time, and my attorney gave me the impression that I would receive [sic] probation, o[]ther[]wise I would never have taken the [p]le[a] bargain." At an August 2002 hearing on ...

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