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24 October 2000

No. 2--99--0288

IN THE

APPELLATECOURT OF ILLINOIS

SECONDDISTRICT

JUSTICE COLWELL delivered the opinion of the court:

Defendant, Kenneth E. Brazee, pleaded guilty to one count ofcriminal sexual assault (720 ILCS 5/12--13(a)(1) (West 1992)). Inexchange for the plea, the State agreed to dismiss a charge ofaggravated criminal sexual assault (720 ILCS 5/12--14(b)(1) (West1992)). No agreement was made as to sentence. The trial courtsentenced defendant to 11 years' imprisonment. On appeal,defendant argues that he should have been sentenced as a juvenilerather than as an adult. Alternatively, defendant contends thatthe sentence imposed by the trial court was excessive. Because weagree with defendant's first contention, we vacate defendant'ssentence and remand with directions.

FACTUAL AND PROCEDURAL BACKGROUND 

On September 29, 1998, defendant was charged by complaint withtwo counts of aggravated criminal sexual assault (720 ILCS 5/12--14(b)(1) (West 1992)). Count I of the complaint alleged that between July 4, 1992, and October 31, 1992, defendant committed theoffense of aggravated criminal sexual assault "in that the saiddefendant, who was 17 years of age or older, committed an act ofsexual penetration with [D.K.], who was under 13years [sic] of agewhen the act was committed," in that defendant placed his penis inD.K.'s anus. Count II of the complaint alleged that identicalconduct occurred between November 1, 1992, and December 31, 1992.

On October 8, 1998, defendant filed a motion to dismiss thecharges against him. Defendant presented his motion to the courtthe same day. He argued that the complaint, as charged, failed toallege sufficient facts to constitute aggravated criminal sexualassault. According to defendant, the alleged ages of defendant andthe victim constituted the only basis for the aggravatingcircumstance. However, defendant contended that, since he was only15 at the time the assaults allegedly occurred, the case shouldhave been filed in juvenile court. Attached to defendant's motionwas a copy of his birth certificate, which showed a birthdate ofJuly 4, 1977. The court continued the case for a hearing ondefendant's motion and for the State to investigate defendant'sposition.

On October 21, 1998, defendant again presented his motion,reiterating that the action belonged in juvenile court because hewas only 15 at the time that he allegedly committed the crimes withwhich he was charged. The trial court explained that, in order todetermine whether it had jurisdiction, it needed to "have anevidentiary hearing of some type." However, the court was notprepared to hold a hearing on that date.

On October 23, 1998, defendant was arraigned on a two-count indictment that was filed on October 21, 1998. Count I alleged:

" [B]etween the 4th day of July, 1992 and the 30th day ofNovember, 1995, *** KENNETH BRAZEE committed the offense ofAGGRAVATED CRIMINAL SEXUAL ASSAULT, in that the saiddefendant, who was 17 years of age or older, knowinglycommitted an act of sexual penetration with [D.K.], who wasunder 13 years of age when the act was committed, in that thesaid defendant placed his penis in the anus of [D.K.], inviolation of 720 ILCS 5/12-14(b)(1)."

Count II alleged:

"[B]etween the 4th day of July, 1992 and the 30th day ofNovember, 1995, *** KENNETH BRAZEE committed the offense ofCRIMINAL SEXUAL ASSAULT in that the said defendant knowinglycommitted an act of sexual penetration with [D.K.] by use offorce, in that said defendant placed his penis in the anus of[D.K.], in violation of 720 ILCS 5/12-13(a)(1)."

On December 11, 1998, defendant pleaded guilty to count II ofthe indictment. In exchange, the State agreed to dismiss count Iof the indictment. After reading count II, the court informeddefendant that the sentencing range for criminal sexual assault is4 to 15 years, unless the extended-term provisions apply, in whichcase the range is from 15 to 30 years.

The cause proceeded to a sentencing hearing on January 26,1999. At that hearing, the State introduced the statementdefendant gave to police in which he admitted to sexually molestingD.K. and D.K.'s two sisters. In the statement, defendant indicatedthat he began sexually molesting D.K. when D.K. was five or sixyears old. Defendant estimated that he ceased molesting D.K."around the end of 1992 or 1993." Defendant attributed his actionsto the fact that he was molested as a child. Also admitted intoevidence were victim impact statements prepared by D.K. and D.K.'stwo sisters.

In addition, the State called D.K. to testify. D.K., who was15 years old at the time of the sentencing hearing, testified thathe pleaded guilty to criminal sexual assault of a younger child. The juvenile court sentenced him to probation. D.K. stated helearned of this type of behavior from what had happened to him. D.K. thought that defendant started molesting him when he was"around 6 or 7" and that defendant ceased molesting him when D.K.was "around 13." D.K. explained that defendant is his cousin andthat the molestations would occur at defendant's house on weekendsand other days when school was not in session. D.K. testified thatdefendant's crime negatively impacted his schoolwork and his sociallife. After D.K. testified, defendant made the following statementin elocution:

"Your Honor, I know what I did was wrong. I have had mycounseling for it, you know. I feel that with the counselingI understand why I did it. I would like you to take that intoconsideration. Also take into consideration, if you would,that this happened 6 years ago, almost 7 years ago."

Following arguments by the State and defense counsel, thetrial court rendered its decision. The court noted that among thefactors in mitigation were that "defendant pled guilty and broughtswift application of correctional measures to him." The courtnoted that, in aggravation, defendant committed other offenses, andit cited the need to deter others from committing the same offense. The court determined that, since D.K. was not a "family member" forpurposes of the criminal sexual assault statute, a prison sentencewas mandatory for the protection of the public. As a result, thecourt sentenced defendant to 11 years' imprisonment.

On February 5, 1999, defendant filed a motion to reconsidersentence. In support of his motion, defendant argued that hissentence was "excessive in light of the nature and circumstances ofthe offense and the history and character of the defendant." OnMarch 8, 1999, the trial court denied defendant's motion. The sameday, defendant filed a notice of appeal.

ANALYSIS

Defendant first contends that the trial court erred insentencing him as an adult rather than as a juvenile. Defendantnotes that he was born on July 4, 1977. Thus, he reasons that he"did not become an adult for purposes of criminal prosecution untilJuly 4, 1994, a date slightly more than half-way [sic] through theperiod of time in which [his] criminal conduct occurred, accordingto the indictment: July 4, 1992 through November 30, 1995."

As a preliminary matter, the State contends that defendant haswaived consideration of this issue for failure to raise it in hismotion to reconsider sentence. Defendant acknowledges that he didnot raise this issue in his motion to reconsider sentence. However, defendant counters that since the court sentenced him asan adult, the court imposed a sentence that it had no authority toimpose. It is well established that a void sentence may beattacked at any time. See, e.g., People v. Williams, 179 Ill. 2d331, 333 (1997); People v. Didier, 306 Ill. App. 3d 803, 806-07(1999); In re E.C., 297 Ill. App. 3d 177, 180 (1998). As a result,we find that defendant is not barred from raising his claim that heshould have been sentenced as a juvenile.

Before we address the merits of defendant's claim, we find ithelpful to review the pertinent sections of the Juvenile Court Actof 1987 (Act) (705 ILCS 405/1--1 et seq. (West 1996)). Section 5--3 of the Act defines "delinquent minor" as "any minor who prior tohis 17th birthday has violated or attempted to violate *** anyfederal or state law or municipal ordinance." 705 ILCS 405/5--3(1)(West 1996)(repealed by Pub. Act 90--590, eff. January 1, 1999)(now codified, as amended, at 705 ILCS 405/5--105(3) (West 1998)). However, this definition does not apply to a minor who at the timeof the offense was at least 15 years of age and who is chargedwith, inter alia, aggravated criminal sexual assault. 705 ILCS405/5--4(6)(a) (West 1996) (repealed by Pub. Act 90--590, eff.January 1, 1999) (now codified, as amended, at 705 ILCS 405/5--130(1)(a) (West Supp. 1999)). A minor who is charged withaggravated criminal sexual assault shall have that charge and allother charges arising out of the same incident prosecuted under thecriminal laws of this state. 705 ILCS 405/5--4(6)(a) (West 1996)(repealed by Pub. Act 90--590, eff. January 1, 1999) (now codified,as amended, at 705 ILCS 405/5--130(1)(a) (West Supp. 1999)).

The Act further provides that, if after trial or plea theminor is convicted of an offense covered by paragraph (a) ofsubsection (6) of section 5--4 of the Act, then, in sentencing theminor, the court shall have available any or all dispositionsprescribed for that offense under the criminal laws of this state. 705 ILCS 405/5--4(6)(c)(i) (West 1996) (repealed by Pub. Act 90--590, eff. January 1, 1999) (now codified, as amended, at 705 ILCS405/5--130(1)(c)(i) (West Supp. 1999)). If after trial or plea theminor is convicted only of an offense not covered by paragraph (a)of subsection (6) of section 5--4, the conviction shall notinvalidate the verdict or prosecution of the minor under thecriminal laws. 705 ILCS 405/5--4(6)(c)(ii) (West 1996) (repealedby Pub. Act 90--590, eff. January 1, 1999) (now codified, asamended, at 705 ILCS 405/5--130(c)(ii) (West Supp. 1999)). However, unless the State requests a hearing for the purposes ofsentencing the minor under the criminal laws, the court mustproceed under the sentencing provisions of sections 5--22 (705 ILCS405/5--22 (West 1996) (repealed by Pub. Act 90--590, eff. January1, 1999) (now codified, as amended, at 705 ILCS 405/5--705 (West1998))) and 5--23 (705 ILCS 405/5--23 (West 1996) (repealed by Pub.Act 90--590, eff. January 1, 1999) (now codified, as amended, at705 ILCS 405/5--710 (West Supp. 1999))) of the Act. 705 ILCS405/5--4(6)(c)(ii) (West 1996) (repealed by Pub. Act 90--590, eff.January 1, 1999) (now codified, as amended, at 705 ILCS 405/5--130(1)(c)(ii) (West Supp. 1999)). The State must request such ahearing by filing a written motion within 10 days following theentry of a finding or the return of a verdict. 705 ILCS 405/5--4(6)(c)(ii) (West 1996) (repealed by Pub. Act 90--590, eff. January1, 1999) (now codified, as amended, at 705 ILCS 405/5--130(1)(c)(ii) (West Supp. 1999)).

The primary consideration of statutory construction is toascertain and give effect to the intent of the legislature. In reE.C., 297 Ill. App. 3d at 179. The language of the statute is thebest evidence of legislative intent. E.C., 297 Ill. App. 3d at179. In this case, defendant was charged with both criminal sexualassault and aggravated criminal sexual assault. Further, theindictment alleged that defendant committed the offense ofaggravated criminal sexual assault when he was at least 15 years ofage. Thus, pursuant to paragraph (a) of subsection (6) of section5--4 of the Act, he was properly prosecuted under the criminal lawsof this state. See 705 ILCS 405/5--4(6)(a) (West 1996). However,defendant pleaded guilty only to the criminal sexual assaultcharge. The State agreed to dismiss count I of the indictment,which charged him with aggravated criminal sexual assault. Sincethe charge that served as the predicate for defendant's prosecutionunder the criminal laws was dismissed and the State did not requesta hearing for the purposes of sentencing defendant under thecriminal laws (see 705 ILCS 405/5--4(6)(c)(ii) (West 1996)(repealed by Pub. Act 90--590, eff. January 1, 1999) (now codified,as amended, at 705 ILCS 405/5--130(1)(c)(ii) (West Supp. 1999))),defendant should have been sentenced as a juvenile.

Our inquiry does not end here, however. This case iscomplicated by another matter. The State asserts that theindictment alleged a pattern of sexual assault extending pastdefendant's seventeenth birthday. The State hypothesizes that,since some of the alleged conduct could have taken place afterdefendant's seventeenth birthday, the trial court properlysentenced defendant as an adult. See 705 ILCS 405/5--4(1) (West1996) (repealed by Pub. Act 90--590, eff. January 1, 1999) (nowcodified, as amended, at 705 ILCS 405/5--120 (West 1998)). Defendant counters that count II of the indictment charged him with"an act" (emphasis added) of criminal sexual assault. Thus, hereasons that he pleaded guilty to one act of criminal sexualassault. Defendant also points out that while the indictmentcharged him with "an act" occurring between July 4, 1992, andNovember 30, 1995, the statement he gave to police indicates thatthe sexual conduct between him and D.K. ended in 1990 or 1991. Thus, he was less than 17 years old at the time he committed thecrime alleged in count II of the indictment. Accordingly,defendant reasons that he could be sentenced properly only as ajuvenile.

Under the facts of this case, we agree that defendant shouldhave been sentenced as a juvenile. The statutory basis for our holding is set out above. Below, we set forth the factual basisfor our holding.

The factual basis for a guilty plea generally consists ofeither an express admission by the accused that he committed theacts alleged in the indictment or a recital of the evidence to thecourt that supports the allegations in the indictment. People v.Vinson, 287 Ill. App. 3d 819, 821 (1997) (holding that, in absenceof recitation or stipulation of facts, police reports, witnessstatements, or presentence investigation report, trial court erredin denying the defendant's petition to withdraw guilty plea). Nevertheless, the factual basis will be established as long asthere is a basis anywhere in the record up to the final judgmentfrom which the judge could reasonably reach the conclusion that thedefendant actually committed the acts with the intent, if any,required to constitute the offense to which he is pleading guilty. Vinson, 287 Ill. App. 3d at 821.

Here, defendant's statement to police indicated that hestarted sexually molesting D.K. in the late 1980s. He indicatedthat the behavior continued until he "got caught trying to kiss andfondle [his] neighbors' breasts." According to the presentenceinvestigation report, this latter behavior occurred on July 1,1991. Defendant's statement to police later indicates that in 1992or 1993 he attended counseling because of his behavior. He states, "After that, I don't remember doing anything like that again."

Based on this evidence, we find that the factual basis fordefendant's guilty plea demonstrates that defendant pleaded guiltyto "an act" of sexual penetration that occurred before hisseventeenth birthday. Defendant was born on July 4, 1977. Thus,even assuming that the conduct charged occurred during 1993,defendant was no older than 16 years of age when this conductoccurred. Thus, he should have been sentenced as a juvenile. Parenthetically, we note that it would have been better practicefor the State to separately charge defendant as a juvenile for actsoccurring before defendant's seventeenth birthday and as an adultfor acts occurring after defendant's seventeenth birthday. SeePeople v. Wasson, 175 Ill. App. 3d 851 (1988) (noting thatinstrument charging defendant under statute that was not yeteffective rendered indictment defective; better practice would havebeen to charge defendant under old statute for conduct occurringduring effective period of former statute with additional countsunder new statute for conduct occurring after new statute'seffective date).

We recognize that, under the Act, a minor's commitment to theDepartment of Corrections (DOC) automatically terminates at age 21(see 705 ILCS 405/5--33(2) (West 1996)(repealed by Pub. Act 90--590, eff. January 1, 1999) (now codified, as amended, at 705 ILCS405/5--750(3) (West 1998))). Thus, under the Act, defendant can nolonger be committed to the DOC. However, the State had theopportunity to request a hearing for the purpose of sentencingdefendant as an adult. The State failed to follow the applicableprocedure by filing a motion within 10 days of the entry of afinding or the return of a verdict. See 705 ILCS 405/5--4(6)(c)(ii) (West 1996) (repealed by Pub. Act 90--590, eff. January1, 1999) (now codified, as amended, at 705 ILCS 405/5--130(1)(c)(ii) (West Supp. 1999)). Accordingly, we find that themost prudent course of conduct is to vacate defendant's sentenceand remand the cause to the trial court to enter an ordersentencing defendant to time served under the sentencing provisionsof the Act. Cf. Commonwealth v. A Juvenile, 407 Mass. 550, 554N.E.2d 1212 (1990) (holding that juvenile court lacked jurisdictionover charges against minor who was 12 or 13 at the time of thealleged offense but who was arraigned when he was 21 years old).

Based on our disposition of this issue, we need not addressdefendant's alternative argument.

CONCLUSION

For the aforementioned reasons, we vacate the judgment of thecircuit court of Winnebago County that sentenced defendant to llyears' imprisonment. We remand the cause with directions that thecircuit court enter an order sentencing defendant under the Act totime served.

Vacated and remanded with directions.

HUTCHINSON and RAPP, JJ., concur.