People v. Dooley

592 N.E.2d 1112, 227 Ill. App. 3d 1063, 170 Ill. Dec. 432, 1992 Ill. App. LEXIS 309
CourtAppellate Court of Illinois
DecidedFebruary 28, 1992
Docket3-90-0379
StatusPublished
Cited by8 cases

This text of 592 N.E.2d 1112 (People v. Dooley) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Dooley, 592 N.E.2d 1112, 227 Ill. App. 3d 1063, 170 Ill. Dec. 432, 1992 Ill. App. LEXIS 309 (Ill. Ct. App. 1992).

Opinion

JUSTICE BOWMAN

delivered the opinion of the court:

Following a jury trial in the circuit court of Tazewell County, defendant, Jock A. Dooley, was found guilty of four counts of aggravated criminal sexual assault (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 14(bXl)) and one count of aggravated criminal sexual abuse (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 16(c)(1)). He was sentenced to consecutive prison terms of six years each on the sexual assault counts and a consecutive three-year term on the sexual abuse count. He contends on appeal that (1) the trial court erred in imposing five consecutive sentences, (2) his sentence was excessive, and (3) he was prejudiced at trial by the ineffective assistance of counsel.

According to the bill of indictment charging defendant, two of the four counts of aggravated criminal sexual assault arose from an incident which occurred on March 24, 1989. The incident underlying the other two counts assertedly took place in November 1988. The count for criminal sexual abuse also related to November 1988. At the time of the alleged incidents, the complainant was a 12-year-old girl who lived at the defendant’s apartment with her mother, the defendant, and her younger half-brother. Defendant was the mother’s boyfriend. Additional facts will be recited as needed to resolve the issues.

Defendant’s first contention is that the trial court erred in making all five of his sentences consecutive. Section 5 — 8—4(a) of the Unified Code of Corrections (Code) provides for consecutive sentences as follows:

“When multiple sentences of imprisonment are imposed on a defendant at the same time, *** the sentences shall run concurrently or consecutively as determined by the court. *** The court shall not impose consecutive sentences for offenses which were committed as part of a single course of conduct during which there was no substantial change in the nature of the criminal objective, unless, one of the offenses for which defendant was convicted was a Class X or Class 1 felony and the defendant inflicted severe bodily injury, or where the defendant was convicted of a violation of Section 12 — 13 or 12 — 14 of the Criminal Code of 1961, in which event the court shall enter sentences to run consecutively. Sentences shall run concurrently unless otherwise specified by the court.” Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8— 4(a).

It is acknowledged by defendant that, when section 12 — 13 and section 12 — 14 offenses are perpetrated as part of a single course of conduct involving a single criminal objective, the sentences must be consecutive. Thus, defendant concedes that the convictions arising from the March 24, 1989, incident require consecutive sentences. He further concedes that the convictions stemming from the November 1988 occurrence require consecutive sentences. Defendant points out, however, that the two groups of offenses were separated by several months and urges that they do not constitute a single course of conduct and, therefore, do not require all consecutive sentences. In essence, defendant argues that the two groups of consecutive sentences may run concurrently with each other. As correctly noted by defendant, the trial court expressed belief that it was statutorily required to impose consecutive sentences on all the charges against defendant. Defendant takes the position that the trial court misconstrued the controlling statute.

We recently addressed the precise question at issue here in People v. Bole (1991), 223 Ill. App. 3d 247. Defendant in Bole pleaded guilty to three violations of section 12 — 13(aX3) (criminal sexual assault). Defendant had perpetrated the three offenses against the same victim but on three separate and distinct occasions. Nevertheless, the trial court found that defendant qualified for mandatory consecutive sentences under section 5 — 8—4(a). Defendant was given separate sentences for the three separate occasions, all to run consecutively. On appeal we reviewed the statute and found the pertinent language to be clear and unambiguous. We concluded that, by its plain meaning, the mandatory consecutive sentencing provision in section 5 — 8—4(a) was intended to apply only to situations where the relevant offenses occurred during a single course of conduct. Our conclusion was supported by the history of section 5 — 8— 4(a), which we examined in considerable detail.

In Bole we discussed People v. Ewald (1991), 210 Ill. App. 3d 7, a case recently decided by our colleagues in the fourth district. Ewald held that section 5 — 8—4(a) mandates consecutive sentences where multiple offenses include section 12 — 13 or 12 — 14 violations, even if the offenses arose from distinctly separate courses of conduct. Ewald has been followed by the Appellate Court, Fifth District, in People v. Hough (1991), 221 Ill. App. 3d 447, 453-55, and People v. Haun (1991), 221 Ill. App. 3d 164,176-77.

The Ewald case, which had only recently been decided, was acknowledged, but challenged, by the defendant in Bole. In the instant case, the State relies on Ewald. However, in Bole we specifically disagreed with, and declined to follow, the interpretation of section 5 — 8— 4(a) which was announced in Ewald and subsequently adopted in Hough and Haun. Defendant has not presented, and we have not become aware of, any sound reason to retreat from the position we reached in Bole. On the contrary, upon reexamining our opinion in Bole for purposes of deciding this case, we are confident that the reasoning we applied and the conclusion we reached there remain valid and vital. We therefore reaffirm that, where the offenses, or groups of offenses, were committed during separate and distinct courses of conduct, section 5— 8 — 4(a) requires consecutive sentences for the offenses within each individual course of conduct but not for the collective offenses from all courses of conduct.

As we mentioned above, the trial court imposed consecutive sentences on all of defendant’s convictions because it believed section 5— 8 — 4(a) required such sentences. We have now construed the statute to mandate consecutive sentences only where single courses of conduct are involved. Accordingly, this matter must be remanded, and defendant must be resentenced in light of this construction. We observe, as we did in Bole, that, although defendant is not eligible for mandatory consecutive sentences for the separate causes of conduct, he still qualifies for consecutive terms under the exercise of the trial court’s discretion under section 5 — 8—4(b). Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—4(b).

Inasmuch as the matter of consecutive sentences must be remanded for reconsideration by the trial court, we decline to address defendant’s second contention, which asserts that the sentence he received was excessive.

We turn now to defendant’s argument that he was denied the effective assistance of counsel because his trial attorney failed to timely disclose his alibi defense. During his direct examination at trial, defendant began to testify that he could not have sexually abused the complainant on March 24, 1989, as charged, since he was in Tennessee fishing at the time. The prosecutor interrupted this testimony and, in a sidebar, objected that the testimony was improper since the State had been given no notice of an alibi defense. The court directed that the defendant’s alibi testimony be stricken.

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Cite This Page — Counsel Stack

Bluebook (online)
592 N.E.2d 1112, 227 Ill. App. 3d 1063, 170 Ill. Dec. 432, 1992 Ill. App. LEXIS 309, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-dooley-illappct-1992.