Appeal from the Circuit Court of Cook County 03 CR 18115 ) 03 CR 18117 03 CR 18118 03 CR 18119 Honorable Colleen Ann Hyland, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice McBRIDE
PRESIDING JUSTICE McBRIDE delivered the judgment of the court, with opinion. Justices Howse and Palmer concurred in the judgment and opinion.
¶ 1 Following the dismissal of his section 2-1401 of the Code of Civil Procedure petition for relief from judgment (735 ILCS 5/2-1401 (West 2008)), defendant Edward Stone argues for the first time on appeal that his guilty plea should be vacated because his agreed-upon sentence is void. Specifically, defendant pled guilty to several counts of criminal sexual assault and one count of aggravated criminal sexual assault in exchange for several prison terms, most of which were imposed concurrently, but under section 5-8-4(a) of the Unified Code of Corrections (730 ILCS 5/5-8-4(a) (West 2002)), the sentences for criminal sexual assault were mandated to run consecutively. Defendant asks this court to void his plea agreement and remand for trial.
¶ 2 In August 2003, defendant was charged under case numbers 03 CR 18115, 03 CR 18116, 03 CR 18117, 03 CR 18118, and 03 CR 18119 for the repeated sexual assault of his stepdaughter, A.K., from 1992 until 2003. In March 2005, the trial court conducted plea proceedings. The following stipulated facts from the plea hearing were detailed in our opinion from defendant's direct appeal.
"In case number 03 CR 18115, defendant pleaded guilty to one count of criminal sexual assault in which A.K. would testify that on separate dates between September 1, 2000, and July 5, 2003, defendant routinely penetrated the victim by inserting his penis into her vagina by the use of force or threat of force. A.K. would ask defendant to stop and defendant would hold A.K. down and do it anyway. Defendant gave numerous statements to the police, his wife, an assistant State's Attorney (ASA), and medical personnel.
In case number 03 CR 18117, defendant pleaded guilty to one count of aggravated criminal sexual assault in which A.K. would testify that between January 1992 and February 1995, defendant, who was born October 6, 1965, would instruct A.K., who was born March 18, 1982, to place her mouth on his penis. He told her to move her head up and down and to go faster. This would last between 5 and 25 minutes. During the course of these incidents, defendant would threaten A.K. that he would kill her, her mother, and himself if she did not comply. Defendant gave oral statements to the police and medical personnel as well as a written confession to an ASA.
In case number 03 CR 18118, defendant pleaded guilty to two counts of criminal sexual assault in which A.K. would testify that between July 6, 2003, and July 20, 2003, defendant would tell her to place her mouth on his penis. He told her to move her head up and down and that 'you like it, you need to suck it.' A.K. would cry and ask defendant to stop, but defendant would threaten to kill her if she did not comply. Defendant would further place a condom on his penis and insert his penis into A.K.'s vagina, using his weight to hold her down. A.K. would repeatedly ask defendant to stop, that he was hurting her. Defendant would not comply with her pleas. These acts routinely occurred on separate dates against
A.K's will with force and the threat of force. Defendant provided a written statement to an ASA admitting to his participation in those events and to the force he used.
In case number 03 CR 18119, defendant pleaded guilty to one count of criminal sexual assault in which A.K. would testify that between July 25, 2000, and August 31, 2000, defendant forced her to put her mouth on his penis and perform oral sex on him. This was done by the use of force and threatening the imminent use of force to A.K. without her consent or permission. Defendant provided a written statement admitting to committing these acts with A.K." People v. Stone, 374 Ill. App. 3d 980, 981-82 (2007).
¶ 3 In exchange for the guilty plea, the State moved to nol-pros the indictment in case number 03 CR 18116. The trial court found a sufficient factual basis to support defendant's guilty pleas and that the pleas were made intelligently and voluntarily. In allocution, defendant stated "I didn't kill anybody and I did not force her, okay, I didn't force her, God is with me."
¶ 4 The trial court then imposed the following agreed-upon sentences: 15 years for criminal sexual assault in case number 03 CR 18115; 24 years for aggravated criminal sexual assault in case number 03 CR 18117; 15 years for count I (criminal sexual assault) and 9 years for count II (criminal sexual assault) in case number 03 CR 18118; and 15 years for criminal sexual assault in case number 03 CR 18119. The sentences for all cases were to run concurrently, except the two counts in case number 03 CR 18118, which were to run consecutive to each other. Under this concurrent sentence structure, defendant, in effect, received a 24-year sentence.
¶ 5 Defendant filed a motion to withdraw his plea, arguing that the statute of limitations had expired for some of the offenses, that the prosecutor made false and inflammatory statements at the plea hearing, and that defendant denied he committed these offenses by the use of force. The trial court denied defendant's motion. On direct appeal, defendant asserted that the indictment in case number 03 CR 18117 for aggravated criminal sexual assault failed to allege that the act was committed with force or the threat of force, the statute of limitations had expired for the indictments in case numbers 03 CR 18117 and 03 CR 18119, and the trial court erred in denying his motion to withdraw his guilty plea because he never stipulated to the use of force and the State made false statements about his confession. We affirmed defendant's conviction and sentence. See People v. Stone, 374 Ill. App. 3d 980 (2007).
¶ 6 In December 2010, defendant filed a petition for relief from judgment pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2010)). Defendant alleged that the trial court failed to advise him that the sentences for the two counts of criminal sexual assault in case number 03 CR 18118 were required to be served consecutively and the trial court was without statutory authority to impose these consecutive sentences because the trial court failed to make a finding that the acts were committed in a single course of conduct. The trial court dismissed defendant's petition, finding that defendant had been advised ...