Appeal from the Circuit Court of Cook County. No. 07 CR 22774 Honorable Stanley Sacks, Judge Presiding.
The opinion of the court was delivered by: Justice Cunningham
PRESIDING JUSTICE CUNNINGHAM delivered the judgment of the court, with opinion. Justices Karnezis and Harris concurred in the judgment and opinion.
Following a bench trial in the circuit court of Cook County, the defendant, Terry Hawkins, was convicted of three counts of aggravated criminal sexual assault and four counts of aggravated kidnapping, and subsequently sentenced to 7 years of imprisonment for each of the three counts of criminal sexual assault, to be served consecutively, for a total of 21 years in prison. The defendant's sole argument on appeal is that the mandatory consecutive sentences for his aggravated criminal sexual assault convictions violate the proportionate sentencing provision of the Illinois Constitution. For the following reasons, we affirm the judgment of the circuit court of Cook County.
The following uncontested evidence was adduced from the defendant's bench trial.
On the evening of September 28, 2007, the victim, 13-year-old Jessica R. (Jessica), surreptitiously and without parental consent left her home on West 65th Street in Chicago, Illinois, to visit a friend. When Jessica discovered that her friend was not at home, she began to walk home through an alley when a car, driven by the defendant, approached her. Jessica described the vehicle as a big, dark-colored car with a rear window missing. The defendant asked her where she was going and offered her a ride. When Jessica declined, the defendant told her to get into the car, at which point Jessica began to run. The defendant, while holding a knife, chased Jessica on foot. He caught Jessica and pulled her into his vehicle. The defendant drove to a liquor store, where he left Jessica in the car after warning her that "some guys [were] keeping a watch on [her]" and would harm her if she tried to escape. After the detour to the liquor store, the defendant drove Jessica to a first-floor apartment in a two-story building. There, the defendant forced Jessica to drink beers, smoke a cigarette, which she believed to have been laced with cocaine, and then forced her to perform various sexual acts with him. Subsequently, when the defendant was distracted by a knock at the door, Jessica escaped through a living room window, injuring her face and ribs. Jessica then ran to a nearby house where she hid on the front porch until the resident of that home, Erica Mascio (Erica), returned home. Erica did not know Jessica, but recognized that she was in distress after hearing Jessica's account of what had occurred. Erica then took Jessica to the police station to report the crime and accompanied her to the hospital for treatment.
In a police photographic array prepared by Detective Matthews several days later, on October 3, 2007, Jessica identified the defendant as the offender. In a police physical lineup following the defendant's arrest on October 13, 2007, Jessica positively identified the defendant as her attacker. Further, forensics testing revealed that swab samples taken from Jessica with a sexual assault kit at the hospital after the attack matched the DNA profile of the defendant.
The defendant was then charged with 24 counts of criminal sexual assault, aggravated criminal sexual assault, kidnapping and aggravated kidnapping. Following closing arguments at the bench trial, the trial court found the defendant guilty of three counts of aggravated criminal sexual assault and four counts of aggravated kidnapping. Subsequently, the trial court denied the defendant's motion for a new trial.
On December 18, 2008, the trial court sentenced the defendant to 7 years in prison for each of the three counts of his aggravated criminal sexual assault convictions, to be served consecutively, for a total of 21 years in prison. No sentences were imposed for the four counts of aggravated kidnapping because the trial court found that those counts merged with the aggravated criminal sexual assault counts. Subsequently, the trial court denied the defendant's motion to reconsider the sentence. On January 16, 2009, a timely notice of appeal was filed before this court.
The sole issue before this court is whether the mandatory consecutive sentences for his aggravated criminal sexual assault convictions violate the proportionate sentencing provision of the Illinois Constitution. The constitutionality of a statute is purely a matter of law, which we review de novo. People v. Sharpe, 216 Ill. 2d 481, 487, 839 N.E.2d 492, 497 (2005).
The defendant argues that the mandatory consecutive sentences for his aggravated criminal sexual assault convictions, for which he received 21 years of imprisonment, violated the proportionate sentencing provisions of the Illinois Constitution because the offense of aggravated kidnapping, which required proof of identical elements as the offense of aggravated criminal sexual assault, does not mandate consecutive sentences. As a result, the defendant maintains, the penalty for the offense of aggravated criminal sexual assault is unconstitutional because it provides for "greater minimum sentences than would be imposed for aggravated kidnapping, while requiring proof of identical elements." Specifically, the defendant contends that the elements of aggravated criminal sexual assault and aggravated kidnapping are identical because the acts of criminal sexual assault became "aggravated" when they occurred during the commission of aggravated kidnapping. He also argues that the conduct of kidnapping Jessica was elevated to "aggravated kidnapping" because it was predicated on his criminal sexual assault upon Jessica. In support of his arguments, the defendant cites People v. Christy, 139 Ill. 2d 172, 564 N.E.2d 770 (1990), People v. Beard, 287 Ill. App. 3d 935, 679 N.E.2d 456 (1997), and People v. Baker, 341 Ill. App. 3d 1083, 794 N.E.2d 353 (2003).
The State counters that the crimes of aggravated criminal sexual assault and aggravated kidnapping are "two wholly distinguishable crimes requiring proof of different elements," and thus, the statutory requirement of mandatory consecutive sentences for aggravated criminal sexual assault convictions is not unconstitutional. The State argues that the defendant attempts to shift the court's attention to one element--the aggravating factor--and "urges this [c]court to ignore the other elements of the offenses which are truly divergent." The State further maintains that even if the offenses contained identical elements, the statutes at issue here are subject to the same exact sentencing range--namely, Class X felonies for which a convict may be sentenced between 6 to 30 years in prison--and thus, do not violate the proportionate penalties clause. Rather, the State argues that mandatory consecutive sentencing only affects the manner by which the sentence is carried out and not the punishment itself. Moreover, the State maintains that "mandatory consecutive sentencing for multiple convictions of aggravated criminal sexual assault has been upheld numerous times and for a variety of reasons by this [c]court and other courts in the state."
Statutes carry a strong presumption of constitutionality. Sharpe, 216 Ill. 2d at 487, 839 N.E.2d at 497. "To overcome this presumption, the party challenging the statute must clearly establish that it violates the constitution." Id. A reviewing court has "a duty to construe a statute in a manner that upholds its validity and constitutionality if it reasonably can be done." People v. Graves, 207 Ill. 2d 478, 482, 800 N.E.2d 790, 792 (2003). Generally, courts "defer to the legislature in the sentencing arena because the legislature is institutionally better equipped to gauge the seriousness of various offenses and to fashion sentences accordingly." Sharpe, 216 ...