The PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD O. WADE, Defendant-Appellant

326 Ill. App. 3d 396
CourtAppellate Court of Illinois
DecidedNovember 30, 2001
Docket3-00-0487 Rel
StatusPublished
Cited by5 cases

This text of 326 Ill. App. 3d 396 (The PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD O. WADE, Defendant-Appellant) 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
The PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD O. WADE, Defendant-Appellant, 326 Ill. App. 3d 396 (Ill. Ct. App. 2001).

Opinion

JUSTICE McDADE

delivered the opinion of the court:

Defendant Richard 0. Wade pleaded guilty to one count each of predatory criminal sexual assault of a child (720 ILCS 5/12 — 14.1(a)(1) (West 1996)) and child pornography (720 ILCS 5/11 — 20.1(a)(l)(ii) (West 1996)). He was sentenced to consecutive prison terms of 15 and 7 years, respectively. Those terms were subsequently reduced to 12 and 5 years. On appeal, defendant claims that (1) his prison sentences should be modified to run concurrently, and (2) the trial court erred in ordering forfeiture of a computer and digital camera without conducting a forfeiture hearing pursuant to section 11 — 20.1A of the Criminal Code of 1961 (Code) (720 ILCS 5/11 — 20.1A (West 1996)). We affirm in part and reverse in part.

FACTS

The State brought a 13-count indictment against defendant, charging him with one count of predatory criminal sexual assault of his 11-year-old stepdaughter, M.M., and 12 counts of child pornography. Pursuant to a partially negotiated plea agreement, defendant pleaded guilty to predatory criminal sexual assault (count I) and child pornography committed contemporaneously with the assault (count II). In exchange, the State dismissed the remaining 11 counts of child pornography.

At the hearing to accept defendant’s plea, the prosecutor presented a factual basis concerning an incident that occurred between June 1, 1997, and June 1, 1998. During that incident, defendant caused M.M. to perform an act of fellatio on him and took a picture of her doing so. The picture was downloaded from a digital camera into the family computer, where it was subsequently discovered by a family friend. Following admonishments, the trial court accepted defendant’s plea and set the cause for sentencing.

At the sentencing hearing, the parties introduced extensive testimony in aggravation and mitigation. In closing remarks, the prosecutor recommended imposition of maximum prison terms to be served consecutively pursuant to section 5 — 8—4(a) of the Unified Code of Corrections (730 ILCS 5/5 — 8—4(a) (West 1996)) and requested a forfeiture order pursuant to section 11 — 20.1(e) of the Code (720 ILCS 5/11 — 20.1(e) (West 1996)).

Prior to imposing sentence, the court determined that the offenses were committed during a single incident. The court admonished defendant that consecutive sentences were mandatory on that basis. The court also found that defendant’s potential for rehabilitation was outweighed by the harm inflicted on the victim and the need to deter others. Accordingly, the court imposed consecutive terms of 15 and 7 years for the two offenses. The court then declared that it was granting the State’s request for forfeiture of the digital camera and the computer. Defense counsel objected to the forfeiture order on grounds that the property was co-owned and the illegal material could be deleted. The objection was overruled.

Defendant’s postsentencing motion was denied and he appeals.

I. CONSECUTIVE SENTENCING

Defendant initially contends that his sentences must be modified to run concurrently pursuant to Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). The Supreme Court in Apprendi held that any factor, other than a prior conviction, which increases the penalty for a crime beyond the prescribed statutory maximum must be pleaded and proved beyond a reasonable doubt. Apprendi, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348.

Defendant argues that his aggregate sentence was unconstitutionally increased without proof beyond a reasonable doubt that the two offenses were committed as part of a single course of conduct (see 730 ILCS 5/5 — 8—4(a) (West 1996)). During the pendency of this appeal, the appellate court in People v. Maiden, 318 Ill. App. 3d 545, 743 N.E.2d 1052 (2001), considered and rejected this argument. Our supreme court subsequently approved the holding of Maiden in People v. Wagener, 196 Ill. 2d 269 (2001), and People v. Carney, 196 Ill. 2d 518 (2001). In both of these recent decisions, the supreme court ruled that the mandatory consecutive sentencing provisions of section 5 — 8—4 of the Unified Code of Corrections do not increase punishment exceeding the statutory maximum for each discrete offense, but only control how multiple sentences are served. Accordingly, sentences imposed pursuant to section 5 — 8—4 do not violate the rule of Apprendi. Wagener, 196 Ill. 2d 269; Carney, 196 Ill. 2d 518. Based on binding precedent, we now reject defendant’s constitutional challenge to his prison sentences.

Defendant argues in the alternative that the trial court might have erred by imposing consecutive sentences pursuant to the statute in effect at the time of sentencing, without finding that the two offenses were committed during a single course of conduct. See Pub. Act 90 — 128, eff. July 22, 1997 (amending 730 ILCS 5/5 — 8—4(b) (West 1996)). This argument is not well taken.

Public Act 90 — 128 added a mandatory consecutive sentencing provision in subsection 5 — 8—4(b) for triggering offenses not committed during a single course of conduct and left intact the mandatory provision of subsection 5 — 8—4(a) for offenses that were so committed. See 730 ILCS 5/5 — 8—4(a), (b) (West 1998). Thus, after July 22, 1997, mandatory consecutive sentencing applies when one of the offenses was predatory criminal sexual assault of a child, whether the offenses were committed together or separately.

In this case, the offenses charged in counts I and II were committed between June 1, 1997, and June 1, 1998; therefore, they could have been committed prior to the amending legislation. However, the record discloses that the trial court determined that the two offenses were committed during a single course of conduct. Accordingly, the court properly imposed mandatory consecutive sentences under subsection 5- — 8—4(a), and the July 22, 1997, amendment to subsection 5 — 8—4(b) could not have affected the sentencing decision.

II. FORFEITURE

Next, defendant argues that his personal computer and camera were forfeited in violation of section 11 — 20.1A(b)(l) of the Code (720 ILCS 5/11 — 20.1A(b)(l) (West 1996)). In response, the State argues that a second forfeiture provision, subsection 11 — 20.1(e) (720 ILCS 5/11 — 20.1(e) (West 1996)), “overlaps” section 11 — 20.1 A and allows the State to obtain a forfeiture order pursuant to article 36 of the Code (720 ILCS 5/36

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