People v. Jackson

460 N.E.2d 904, 122 Ill. App. 3d 166, 77 Ill. Dec. 600, 1984 Ill. App. LEXIS 1534
CourtAppellate Court of Illinois
DecidedFebruary 29, 1984
Docket83-598
StatusPublished
Cited by6 cases

This text of 460 N.E.2d 904 (People v. Jackson) 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. Jackson, 460 N.E.2d 904, 122 Ill. App. 3d 166, 77 Ill. Dec. 600, 1984 Ill. App. LEXIS 1534 (Ill. Ct. App. 1984).

Opinion

JUSTICE UNVERZAGT

delivered the opinion of the court:

The defendant, Wayne Jackson, was charged by information with two counts of rape (Ill. Rev. Stat. 1981, ch. 38, par. 11 — 1(a)), two counts of deviate sexual assault (Ill. Rev. Stat. 1981, ch. 38, par. 11— 3(a)), and one count of unlawful restraint (Ill. Rev. Stat. 1981, ch. 38, par. 10 — 3(a)). He pleaded guilty to one count of rape and the remaining offenses were nolle pressed. The defendant’s motion to withdraw his plea of guilty and vacate the judgment prior to sentencing was denied. Following the sentencing hearing, the trial judge sentenced the defendant to an extended term of 40 years’ imprisonment. The defendant now appeals, contending that the trial court erred in imposing an extended sentence where the rape was not exceptionally brutal or heinous as required by section 5 — 5—3.2(b)(2) of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 5—3.2(b)(2)), and alternatively, that the sentence imposed was excessive and an abuse of the trial court’s sentencing discretion.

The facts are undisputed that on March 4, 1983, at approximately 2:30 a.m., the victim was leaving a friend’s apartment and was going to a nearby phone booth when she was approached by the defendant who asked her if he could accompany her. He walked her to the phone booth and waited nearby while she made her call. Shortly thereafter, the complainant left the booth and started walking home. The defendant followed a short distance away. He then grabbed her by the arm and forced her into a nearby parking lot. The defendant pulled down his pants and ordered complainant to perform fellatio. When she refused, he slapped her and then engaged in oral sex. The victim then screamed and the defendant slapped her and pulled her into a nearby alley and again forced her to perform fellatio. He then brought the victim a short distance away to an apartment building. On the front porch the defendant disrobed the victim and had sexual intercourse with her despite her protests that she had just begun her menstrual period. The defendant then took the victim around to the back of the building where he again had sexual intercourse and fellatio with her.

Upon holding the required sentencing hearing, the trial court sentenced defendant to a 40-year extended term of imprisonment.

Initially, we must first consider the issue raised by the State as to whether the defendant’s appeal should be dismissed. Citing People v. Bryant (1977), 45 Ill. App. 3d 428, the State argues that the defendant has waived his right to appeal by failing to present the trial court a motion under Supreme Court Rule 604(d) (87 Ill. 2d R. 604(d)) to withdraw his guilty plea and vacate the judgment following the imposition of sentence. While a written motion to withdraw a guilty plea is a condition precedent to a defendant’s right to appeal, the failure to file the written motion waives any claim of error in the trial court proceedings (87 Ill. 2d R. 604(d)), a defendant will be excused where the trial court has failed to admonish the defendant that prior to taking an appeal he must file in the trial court, within 30 days of the date on which sentence is imposed, a written motion to withdraw his plea of guilty and vacate the judgment. (87 Ill. 2d R. 605(b).) After the sentence was imposed, the trial court advised the defendant of his right to appeal and informed him that he had 30 days within which to file a notice of appeal. The trial court noted that since the defendant had filed a notice to withdraw his guilty plea prior to sentencing, to require the defendant to file another motion to withdraw, in the trial court’s opinion, would be a “wasted act.” This left the impression that the defendant could appeal his sentence alone without his filing a motion to withdraw. The defendant here, unlike the defendant in Bryant, was not adequately admonished in accordance with Supreme Court Rule 605(b). Therefore, in light of the trial court’s failure to adequately advise the defendant of this requirement, the defendant did not waive his right to appeal his sentence because of his failure to file in the trial court a written motion to withdraw his guilty plea. Accordingly, this court will consider the merits of the defendant’s appeal. People v. Miller (1982), 107 Ill. App. 3d 1078, 1082; People v. Martin (1978), 58 Ill. App. 3d 915, 917.

The defendant argues that the extended-term sentence he received was excessive and improper in that his behavior was neither sufficiently brutal nor heinous to warrant a 40-year extended-term sentence. Section 5 — 5—3.2(b)(2) of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 5—3.2(b)(2)) provides that an extended sentence may be imposed “[w]hen a defendant is convicted of any felony and the court finds that the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty.” The defendant points out that no such behavior exists in the present case as the victim sustained no serious physical injury and that the defendant did not use a weapon in the attack or threaten the victim’s life. He asks this court to reduce his sentence under the authority of Supreme Court Rule 615(b)(4) (87 Ill. 2d R. 615(b)(4)).

The determination and imposition of a sentence is within the sound discretion of the trial court and hence a reviewing court must give great deference to the trial court’s determination and will not modify or vacate a sentence on appeal absent an abuse of discretion. People v. Willingham (1982), 89 Ill. 2d 352, 364; People v. Perruquet (1977), 68 Ill. 2d 149, 154.

In the present case, the sentence imposed was proper and reasonable. The facts here are similar to those presented in People v. Turner (1981), 93 Ill. App. 3d 61. In Turner, the court affirmed the defendant’s extended sentence of 45 years for rape and deviate sexual assault in which the defendant struck the victim five times, threatened her repeatedly with death, and forced her into three acts of sexual intercourse, two acts of fellatio, and one act of sodomy. The court found that even in the absence of the victim’s physical injuries, defendant’s behavior went “beyond what is necessary to show ‘exceptionally brutal and heinous behavior indicative of wanton cruelty.’ ” 93 111. App. 3d 61, 69.

In this case, the victim was slapped and punched and subjected to repeated acts of sexual abuse by the defendant. It can be reasonably said that the actions of the defendant, who was 5 feet 11 inches tall and weighed 200 pounds, terrorized and endangered the victim, who was 5 feet 6 inches tall and weighed 105 pounds, despite the absence of a weapon or any express threats on the victim’s life. The presentence report indicates that the victim suffered serious emotional trauma as well as some minor physical injuries. As the subjective pain of mental injury often exceeds that of physical injury, and the tangible scars may be as lasting (People v. Viens (1982), 109 Ill. App. 3d 1017, 1028-29; People v. Clark (1981), 102 Ill. App. 3d 414, 425), mental suffering may be considered in deciding whether to impose an extended sentence. (People v. Viens (1982), 109 Ill. App.

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Bluebook (online)
460 N.E.2d 904, 122 Ill. App. 3d 166, 77 Ill. Dec. 600, 1984 Ill. App. LEXIS 1534, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-jackson-illappct-1984.