Appeal from the Circuit Court of Cook County No. 07 CR 14993 Honorable Kenneth J. Wadas, Judge Presiding.
The opinion of the court was delivered by: Justice Sterba
JUSTICE STERBA delivered the judgment of the court, with opinion.
Presiding Justice Lavin and Justice Fitzgerald Smith concurred in the judgment and opinion.
¶ 1 Following a bench trial, defendant, Mattel McCurry, was convicted of four counts of aggravated criminal sexual assault and two counts of aggravated domestic battery. He was sentenced to 27 years in prison. On appeal, defendant contends that (1) two of his four convictions for aggravated criminal sexual assault should be vacated because only two acts of sexual penetration were alleged or proven, and one of his two convictions for aggravated domestic battery should be vacated because the closely related acts supporting the aggravated domestic battery were charged and litigated together; and (2) the trial court's failure to set a specific term for mandatory supervised release (MSR) when sentencing defendant for aggravated criminal sexual assault rendered that portion of the sentencing order void and thus, this court must remand for the circuit court to set a specific term. For the reasons that follow, we affirm and amend the mittimus.
¶ 3 Defendant was charged by information with four counts of aggravated criminal sexual assault (counts I-IV), two counts of criminal sexual assault (counts V and VI), two counts of aggravated battery (counts VII and VIII) and three counts of domestic battery (counts IX-XI). Defendant's bench trial began on October 15, 2009.
¶ 4 The victim, S.T., testified that in May of 2007 she was living with her son in an apartment where defendant would visit and sometimes spend the night. On May 9, 2007, defendant had spent the night at S.T.'s home. The next morning as S.T. was getting ready for work, defendant found a small address book belonging to her. Defendant started questioning S.T. about the names and the numbers contained in the address book. Defendant proceeded to take S.T.'s cell phone and call one of the numbers in the cell phone's memory. Following the phone call, defendant punched Taylor in the face several times, put her in a headlock and bit her on her right arm. S.T. testified that defendant then set up the ironing board and plugged in the iron. After the iron got hot, defendant unplugged it, poured hot water from the iron on S.T.'s head and burned her arm with the iron a few times. Defendant then plugged the iron back in and burned S.T.'s arm with it again.
¶ 5 S.T. ran into the kitchen to get ice for the burns. Defendant followed her to the kitchen and told her to go into the bedroom. Defendant then dropped his pants and said, "You know what I want." S.T. testified that she then performed oral sex on him because she was tired of fighting and was scared. Defendant then told her to get up and lay on her stomach. S.T. complied. Defendant then had vaginal intercourse with her until he ejaculated. Defendant asked for S.T.'s car keys. She refused to give him the keys but instead gave him a ride to his grandmother's house. After she dropped him off she went to the police station to fill out a police report. The officer at the front desk told her that because it was a domestic abuse case, she would have to go downtown and file a report there. S.T. testified that she did not say anything about the sexual assault because she did not feel comfortable. S.T. then dropped her son off at school and went to work. After speaking with her relatives, S.T. decided to go to the hospital, where she told a nurse about the sexual assault.
¶ 6 Crystal Carey, a nurse at the hospital, testified that S.T. complained of iron burns and a human bite. Carey noted that S.T. had a human bite mark on her right arm and a "partial thickness burn" consistent with the shape of an iron on her left forearm. Carey treated the wounds and S.T. was then examined by a doctor. As S.T. was about to be discharged, she told Carey that she had also been sexually assaulted. Dr. Gulam Siddiqui testified that he conducted a sexual assault exam on S.T. He stated that the injuries on S.T.'s arms were consistent with her version of the incident. He further testified that the results of her vaginal exam were consistent with both sexual assault and consensual sex.
¶ 7 Defendant was found guilty on all counts and was sentenced to consecutive terms of 10 years each for counts I and II, and concurrent sentences of 10 years each for counts III and IV. Defendant was also sentenced to a consecutive term of seven years for count VII, and a concurrent term of seven years for count VIII. Counts V, VI, IX, X and XI merged and no sentences were imposed. The trial court did not specify the MSR term. On the Department of Corrections (Department) website, defendant's MSR term is shown as "3 Yrs to Life -- To Be Determined."*fn1 Defendant's motion to reconsider sentence was denied and this appeal was timely filed.
¶ 9 Defendant first contends that two of the aggravated criminal sexual assault convictions and one of the aggravated domestic battery convictions should be vacated under the one-act, one-crime doctrine and the State agrees. The record shows that although defendant was charged with four counts of aggravated criminal sexual assault, only two acts of sexual penetration were committed, namely, vaginal penetration and oral penetration. Similarly, although defendant was charged with two counts of aggravated domestic battery, both counts were based on the fact that S.T. was burned with an iron. We therefore order that the mittimus be corrected to reflect that counts III, IV and VIII merge with counts I, II and VII, respectively. Ill. S. Ct. R. 615(b).
¶ 10 Defendant next argues that the trial court's failure to set a specific term for MSR when sentencing him for aggravated criminal sexual assault rendered that portion of the sentencing order void and asks this court to remand for the circuit court to set a specific term. The State contends that when the relevant statutes are read in harmony with each other, it is clear that the trial court is required to set an indeterminate MSR term, and the Department then has the authority to determine the ultimate amount of time that the defendant will serve under that term. "Because interpreting statutes ...