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4 August 2000

No. 3--99--0497, consolidated with 3--99--0498,
3-99--0499, 3--99--0500, 3--99--0501 & 3--99--0502

IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT

A.D., 2000

JUSTICE HOMER delivered the opinion of the court:

Defendant pled guilty to three counts of predatory criminalsexual assault of a child (720 ILCS 5/12--14.1(a)(1) (West 1996))and three counts of aggravated criminal sexual abuse (720 ILCS5/12--16(d) (West 1992)). He was sentenced to an aggregate of 80years in prison. Defendant appeals arguing that he was sentencedin excess of the maximum term authorized by section 5--8--4(c)(2)of the Unified Code of Corrections (730 ILCS 5/5--8--4(c)(2) (West1996)). Defendant also maintains that he was improperly sentencedbased on the trial judge's mistaken belief that defendant waseligible for an extended-term sentence. Finally, defendantcomplains that one count of predatory criminal sexual assault of achild should be reversed because the indictment was defective. After our careful review, we affirm defendant's convictions butremand for resentencing.

FACTS

Defendant was charged with six counts of child pornography(720 ILCS 5/11--20.1(a)(1) (West 1996)), six counts of aggravatedcriminal sexual abuse (720 ILCS 5/12--16 (West 1992)), three countsof predatory criminal sexual abuse of a child (720 ILCS 5/12--14.1(a)(1) (West 1996)), and two counts of aggravated criminalsexual assault (720 ILCS 5/12--14(b)(1) (West 1992) and 720 ILCS5/12--14(b)(i) (West 1996). The same basic pattern of abuseoccurred with each of the young male victims involved. Defendantmet the victims at a community development center as well asthrough the Roosevelt School after-school program. The boys werepersuaded to come to defendant's home. They would then pose forvideos, first in costume and then in the nude. Acts of sexualpenetration later occurred with three of the victims.

Defendant pled guilty to three counts of predatory criminalsexual assault of a child (720 ILCS 5/12--14.1(a)(1) (West 1996))and three counts of aggravated criminal sexual abuse (720 ILCS5/12--16(d) (West 1992)) in exchange for dismissal of the remainingcharges and a promise from the State not to file any new chargesbased on information it had as of the date of the plea. At theplea hearing, the trial judge instructed defendant as to thepotential sentencing range on each charge, as follows: (1) thecharges of aggravated criminal sexual abuse were Class 2 feloniescarrying a sentencing range of 3 to 7 years each with thepossibility of an extended-term sentence (maximum 14 years each) ifthe victim was "12 years or under" at the time of the offense; and(2) the charges of predatory criminal sexual assault of a childwere Class X felonies carrying a sentencing range of 6 to 30 yearseach with the possibility of an extended-term sentence (maximum 60years each) if the complainant was "12 years or under" at the timeof the offense. The trial judge also advised defendant that hecould be given consecutive sentences if the court found itnecessary to protect the public and that the maximum sentencedefendant could receive would be 120 years.

The trial judge found that there was a factual basis fordefendant's plea of guilty on each charge. The guilty plea wasaccepted, a presentence investigation was ordered, and a sentencinghearing was scheduled.

At the sentencing hearing, the court considered thepresentence investigation report, which showed that defendant was53 years old. Defendant had a 1978 conviction for childpornography and two 1995 traffic convictions. The State presenteda 12-minute video compiled from four of the 61 video tapes found atdefendant's apartment. The video showed defendant engaged in thecharged conduct. Defendant made a statement to the courtexpressing his remorse and a desire to terminate his own life.

The trial court found that there were no statutory mitigatingfactors present. In addition, the court noted factors inaggravation, including defendant's criminal history, defendant'suse of his position of trust in the community to commit his crimes,and the necessity of deterring others. The trial judge imposedconsecutive sentences of 30, 30, and 20 years for the predatorycriminal sexual abuse of a child charges and concurrent terms ofseven years each for the aggravated criminal sexual assaultcharges.

Defendant filed a motion to withdraw his plea and a motion toreconsider his sentence. In the motion to withdraw, defendantalleged that his plea was not knowing and voluntary because, sleepdeprived and suffering from stress and anxiety at the time, he wasunable to understand his rights. Defendant also alleged that hehad a bona fide defense to some of the charges. In his motion toreconsider, defendant argued the sentence was excessive and wascruel and unusual punishment in that it essentially amounted to alife term. Both motions were denied; however, the matter wasremanded on appeal because the Rule 604(d) (134 Ill. 2d R. 604(d))certificate filed by trial counsel was insufficient.

Second amended motions to withdraw plea and to reconsidersentence were filed mirroring the allegations in the previouslydismissed motions. This time, the Rule 604(d) certificate wasadequate. Both motions were again denied. Defendant now appeals.

ANALYSIS

I. Aggregate of Consecutive Sentences

Defendant argues that the aggregate sentence of 80 yearsincarceration exceeds the maximum sentence authorized by law. Section 5--8--4(c)(2) of the Unified Code of Corrections provides,in relevant part, that "the aggregate of consecutive sentencesshall not exceed the sum of the maximum terms authorized underSection 5--8--2 for the 2 most serious felonies involved." 730ILCS 5/5--8--4(c)(2) (West 1996). Section 5--8--2 provides, inrelevant part, as follows:

"(a) A judge shall not sentence an offender to a term ofimprisonment in excess of the maximum sentence authorizedby Section 5--8--1 for the class of the most seriousoffense of which the offender was convicted unless thefactors in aggravation set forth in paragraph (b) ofSection 5--5--3.2 were found to be present. Where thejudge finds that such factors were present, he maysentence an offender to the following:

* * *

(2) for a Class X felony, a term shall be not lessthan 30 years and not more than 60 years." 730 ILCS 5/5--8--2 (West 1996). Defendant notes that the plain language of section 5--8--2provides for an extended-term sentence of between 30 and 60 yearsonly if section 5--5--3.2(b) factors in aggravation are present. Consequently, as no section 5--5--3.2(b) factors are present inthe instant case, defendant contends that the plain language ofsection 5--8--2 authorizes only the nonextended term of 30 yearsprovided for under section 5--8--1. Therefore, the sum of themaximum terms authorized for the two most serious feloniesinvolved in this case, according to defendant, is only 60 years. The 80-year aggregate sentence would exceed this limit.

Defendant argues in the alternative that section 5--8--4(c)(2) is ambiguous. Defendant suggests that the language insection 5--8--4(c)(2) referring to "the maximum terms authorized"could refer either to the general sentencing ranges for therelevant class of felony or could refer to the sentencing rangeapplicable to the defendant based on the specific facts of thecase. Because any ambiguity in a criminal statute is to beconstrued in favor of the criminal defendant (People v. Daniels,172 Ill. 2d 154, 163, 665 N.E.2d 1221, 1225 (1996)), defendantcontends that we must read the language as only permitting a 60-year aggregate term in this case.

A similar argument was rejected by the appellate court inPeople v. Woods, 131 Ill. App. 3d 51, 475 N.E.2d 589 (1st Dist.1985). Defendant argues that we should reach a contrary result as(1) Woods is not binding authority in the third district; (2)Woods was decided 15 years ago; and (3) Woods is the onlypublished case in Illinois to have considered this issue. Webelieve, however, that the first district correctly construedsection 5--8--4(c)(2). The plain language of section 5--8--4(c)(2) refers to the "maximum terms authorized" by section 5--8--2, not to the maximum terms for which a particular defendant iseligible. (Emphasis added.) See 730 ILCS 5/5--8--4(c)(2) (West1996).

Furthermore, our supreme court, albeit in dicta, hasinterpreted section 5--8--4(c)(2) consistently with the firstdistrict's construction in Woods. In People v. Tucker, 167 Ill.2d 431, 437, 657 N.E.2d 1009, 1012 (1995), our supreme courtstated:

"We note that section 5--8--4(c)(2) refers to theaggregate of the maximum extended terms authorized forthe two most serious felonies involved. [Citation.] Forexample, where a defendant is convicted of a Class Xfelony, the maximum extended-term is 60 years. [Citation] Thus, a defendant convicted of a number of Class Xfelonies may be sentenced to consecutive terms ofimprisonment not to exceed a total of 120 years." (Emphasis in original.)

Consequently, we hold that the maximum aggregate ofconsecutive terms was 120, not 60 years. The 80-year aggregatesentence which defendant received is within this range.

II. Excessive Sentence

Defendant also argues that he received an excessive sentencebased on the trial court's mistaken belief that he was eligiblefor an extended-term sentence. At the plea hearing, the trialjudge admonished defendant that he would be eligible for anextended-term sentence if the victim in any of the cases was 12years old or younger. This admonishment, however, was incorrectbecause the statute providing for enhanced sentencing based on theyouth of the victim permits extended-term sentencing if the victimis "a person under 12 years of age at the time of theoffense"(emphasis added) (730 ILCS 5/5--5--3.2(b)(4)(i) (West1996)). Furthermore, the parties agree, and the record confirms,that while two of the victims were 12 years of age, none was under12 years of age on the dates alleged in the indictments.

Because the trial judge mistakenly believed defendant wasextended-term eligible, defendant argues, defendant received anexcessive sentence even though the sentences given were within thenonextended-term range. A trial court's misapprehension as toextended-term sentencing eligibility necessitates a new sentencinghearing when it appears that the trial court's misapprehensionarguably influenced the sentencing decision. People v. Hurley,277 Ill. App. 3d 684, 687, 661 N.E.2d 460, 462 (1996). Eventhough this court cannot be certain that the judge's mistakenbelief entered into the sentencing calculation, defendant argues,we should remand for resentencing because we cannot be certainthat this improper factor did not affect the sentence. See Peoplev. Embry, 179 Ill. App. 3d 1059, 1060-61, 535 N.E.2d 87, 88 (1989)(remanded for resentencing because appellate court unable todetermine the weight given to improperly considered factors).

The defendant did not object to the court's statement at thetime of his plea or at sentencing, and the defendant did notinclude the issue in a post-sentencing motion. Objectionsregarding sentences not brought to the trial court's attention aredeemed to be waived. People v. Brown, 242 Ill. App. 3d 465, 610N.E.2d 776 (1993). Furthermore, a defendant must file a writtenpost-sentencing motion in the trial court to preserve a sentencingissue for appellate review. People v. Reed, 177 Ill. 2d 389, 686N.E.2d 584 (1997). Therefore, the State argues the issue iswaived.

However, based upon our review of the record in this case, wefind that a substantial right of defendant has been affected. SeePeople v. Lindsay, 247 Ill. App. 3d 518, 527, 617 N.E.2d 389, 395(1993) (trial court finding that defendant was eligible for anextended term affected substantial rights, as it enabled court toimpose a sentence twice the normal maximum). Therefore, we willreview the alleged error under the plain error doctrine. 134 Ill.2d R. 615(a).

It is assumed that a trial judge considers only competentevidence in making his sentencing determination, and thisassumption is overcome only if the record affirmativelydemonstrates the contrary. People v. Kolzow, 301 Ill. App. 3d 1,8, 703 N.E.2d 424, 430 (1998). In considering whether a mistakenbelief influenced the trial judge's sentencing decision, areviewing court looks to whether the trial judge's comments showthat the trial judge relied on the mistaken belief or used themistaken belief as a reference point in fashioning the sentence. People v. Hill, 294 Ill. App. 3d 962, 970, 691 N.E.2d 797, 803(1998).

As previously noted, the trial judge misstated the law withrespect to extended-term sentencing eligibility during the pleahearing. Furthermore, the record shows that defendant was noteligible for an extended-term sentence based upon the ages of thevictims. At the sentencing hearing, the judge did not indicatethe sentencing range or whether he believed defendant was eligiblefor an extended-term. However, it appears from the transcript ofthe sentencing hearing that the parties so believed. The Stateput on evidence that one of the undisclosed victims appearing onthe videotape claimed to be 11 years of age at the time. Inaggravation, the State commented that for a victim "under 12 yearsof age at the time of the offense *** that an extended-term isavailable." Defense counsel stated in his argument as tosentencing alternatives that he hoped for defendant's sake that "asentence could be fashioned within the maximum that is availablewithout getting into extended sentences."

Because the record suggests that the trial court erroneouslybelieved that defendant was eligible for extended-term sentencingin this case, based upon the age of one or more of the victims, wevacate the sentence imposed and remand for resentencing.