People v. Gooden

April 30, 1998


                               NO. 5-96-0746

                                  IN THE 

                        APPELLATE COURT OF ILLINOIS

                              FIFTH DISTRICT
_________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS,)  Appeal from the 
                                    )  Circuit Court of
     Plaintiff-Appellee,            )  Washington County.
                                    )
v.                                  )  No. 95-CF-74
                                    )
STEVE GOODEN,                       )  Honorable
                                    )  Lloyd A. Karmeier,
     Defendant-Appellant.           )  Judge, presiding.
_________________________________________________________________

     JUSTICE CHAPMAN delivered the opinion of the court:
     Following a stipulated bench trial, defendant Steve Gooden was
found guilty of home invasion and aggravated criminal sexual
assault.  He was sentenced to concurrent terms of 12 years'
imprisonment with credit for 302 days served.  On appeal, defendant
argues that his statutory right to a speedy trial (725 ILCS 5/103-5
(West 1996)) on the aggravated criminal sexual assault charge was
violated.  Defendant also argues on appeal that his sentence is
void because Public Act 89-404 is unconstitutional.  Defendant
lastly argues that his 12-year prison sentences are excessive.  We
affirm.
     On December 21, 1995, defendant was charged with one count of
home invasion.  He was arrested on the same date and did not post
bond.
     On December 27, 1995, a preliminary hearing was held at which
Charlie Parker, the investigator for the Washington County State's
Attorney's Office, testified that when he interviewed the victim,
M.G., she stated that defendant, M.G.'s ex-husband, forced his way
into her home and "sexually assaulted her."  She then described to
Parker an act of sexual intercourse between her and defendant.
     On April 4, 1996, defendant made a motion for a continuance to
the August trial setting so that he could seek funds for the hiring
of an expert witness.  The cause was continued to the August 19,
1996, jury setting.
     On April 18, 1996, upon defendant's motion, Fred D. Krug, a
psychiatrist, was appointed to examine defendant's mental fitness.
     On July 26, 1996, the State filed an amended criminal
information, which charged defendant with one count of home
invasion and five counts of aggravated criminal sexual assault.
     On August 1, 1996, trial was set for August 26, 1996.
     On August 5, 1996, defendant filed a motion to dismiss the
aggravated criminal sexual assault counts.  The motion alleged that
120 days had elapsed between defendant's arrest and the filing of
aggravated criminal sexual assault charges.  Attached to the motion
is a complaint for search warrant filed December 21, 1995.  In the
complaint for a search warrant for defendant's motor vehicle, the
Washington County State's Attorney's investigator stated that on
December 21, 1995, he interviewed M.G., who told him of the
circumstances of the home invasion and that defendant "had sexual
intercourse with" M.G.
     On August 14, 1996, after a hearing, the court denied
defendant's motion to dismiss the aggravated criminal sexual
assault counts.  During the hearing, the State's Attorney reviewed
the reports that he had received from the State crime laboratory. 
According to the State's Attorney, an April 26 report stated that
the DNA profiles of M.G. and defendant could not be matched.  The
May 25, 1996, report stated that because defendant had a vasectomy,
DNA could not be matched but a standard blood test would be used. 
Blood analysis indicated that seminal material on M.G.'s panties
could have originated with defendant.  The State received the blood
analysis report on June 10.  Once the State received evidence
corroborating the victim's statement, the additional counts of
aggravated criminal sexual assault were filed.  The State concluded
that the home invasion and aggravated criminal sexual assault were
separate acts.
     On August 20, 1996, defendant's stipulated bench trial was
conducted.  The State proceeded on the home invasion charge and on
one count of aggravated criminal sexual assault.  After a finding
of guilty, the remaining charges were dismissed.  The stipulated
facts are as follows.  If M.G. were called to testify, she would
testify that while sleeping on her bed on December 20, 1995, at
approximately 7:30 p.m., she heard the sound of breaking glass. 
When she got up, she saw defendant, who was holding a gun. 
Defendant forced her back into the bedroom, pointed the gun at her,
and yelled at her.  They then went to the dining room and talked as
defendant sometimes pointed the gun at her.  He hit her in the
upper chest area with the butt of the gun.  When they started
talking about their marriage, defendant hit M.G. in the head with
the butt and barrel of the gun and hit her face with his fist. 
Their conversations were interspersed with defendant beating M.G. 
At one point, he asked her if she wanted him to take her to the
hospital, but she declined.  Defendant then left M.G.'s house to
get cigarettes out of his car, got the cigarettes, and reentered
the house.  Defendant took M.G.'s hand, led her to the bedroom, and
told her to take off her clothes.  He took out a knife, which
eventually was placed on a dresser.  Defendant then performed oral
and vaginal intercourse on M.G.  He then asked her to shoot him,
which she declined to do.  Defendant placed the barrel of the gun
at his head and screamed at M.G. to pull the trigger.  She pulled
the barrel away from his head, and he stated that he did not really
want to die.  During the entire episode, defendant appeared to be
intoxicated.  When defendant eventually left, M.G. called 9-1-1. 
The State's Attorney also recited the physical evidence and the
potential testimony of investigating officers.
     Defendant initially contends that his right to a speedy trial
was violated when the amended criminal information was filed, which
alleged four counts of aggravated criminal sexual assault in
addition to the initial charge of home invasion.  He argues that
more than 120 days elapsed between the filing of the initial
criminal information and the trial and that continuances granted to
him on the home invasion charge cannot be attributable to him on
the aggravated criminal sexual assault charge, because that charge
was not in existence when the continuances were granted.  One
hundred and twenty days from December 21, 1995, was April 19, 1996. 
     Defendant's argument has a basis in case law, since it has
been held on several occasions that if new and additional charges
arise from the same facts as did the original charges and the State
had knowledge of these facts at the commencement of the
prosecution, then the time within which trial is to begin on the
new and additional charges is subject to the same statutory
limitation that is applied to the original charges (People v.
Williams, 94 Ill. App. 3d 241, 248-49, 418 N.E.2d 840, 846 (1981)). 
Williams also held that continuances obtained in connection with
the trial of the original charges cannot be attributed to defendant
with respect to the new and additional charges, because these new
and additional charges were not before the court when those
continuances were obtained.  Williams, 94 Ill. App. 3d at 249, 418 N.E.2d  at 846; see People v. Stanley, 266 Ill. App. 3d 307, 309-10,
641 N.E.2d 1224, 1226 (1994) (quoting Williams); People v. Rodgers,
106 Ill. App. 3d 741, 744, 435 N.E.2d 963 (1982) (same).  
     In support of its holding, Williams cited three cases to
support the proposition that continuances are not chargeable on
offenses not before the court:  People v. Williams, 2 Ill. App. 3d
993, 278 N.E.2d 408 (1971), People v. Parker, 59 Ill. App. 3d 302,
375 N.E.2d 465 (1978), and People v. King, 8 Ill. App. 3d 2, 288 N.E.2d 672 (1972).  In People v. Williams, 2 Ill. App. 3d 993, 278 N.E.2d 408 (1971), defendant was incarcerated on September 29,
1967, for the murder of Ambrose Lane and the attempted murder of
William Thompson.  In October 1967, Williams was indicted for the
murder, and no indictment was sought or returned for the attempted
murder.  On June 5, 1968, an indictment was returned charging him
with the attempted murder.  The trial court dismissed the attempted
murder indictment upon the grounds that the defendant Williams had
been in custody for more than 120 days without having been brought
to trial, and the State appealed.  The Williams court upheld the
dismissal of the attempted murder indictment and reasoned that the
indictment on that charge was not before the court when the
continuances were requested.  Williams, 2 Ill. App. 3d at 994, 278 N.E.2d  at 409.  Although the Williams court stated that some
continuances were attributable to the court, some to the State, and
some to defendant, the opinion is not clear as to what continuances
were not attributable to the defendant.  There was no citation of
authority for the proposition that the attempted murder charge
should be dismissed because it was not before the court when the
continuances were requested.
     In King, defendant was placed in custody on March 4, 1968, and
was charged with attempted murder.  On October 4, 1968, he was
indicted for unlawful use of weapons, which arose out of the same
factual setting as the attempted murder.  The appellate court
concluded that the weapons charge should be dismissed.  It relied
entirely on the compulsory-joinder provisions of section 3-3(b) of
the Criminal Code of 1961 (Ill. Rev. Stat. 1967, ch. 38, par. 3-3
(now 720 ILCS 5/3-3 (West 1994))) in arriving at that conclusion. 
     In Parker, the defendant was indicted in March 1974 for
bribery and official misconduct.  In October 1975 he was reindicted
for these offenses, plus a count of theft which arose out of the
same facts.  The appellate court affirmed the dismissal, in January
1976, of all charges, on the basis of speedy-trial violations. 
Citing King, it concluded that the dismissal also applied to the
theft charge since that charge "arose from the same set of facts as
the other charges, and the State knew of these facts at the time
the initial indictment was returned."  Parker, 59 Ill. App. 3d at
305, 375 N.E.2d  at 468.  
     Thus, it appears that one of the bases of the holdings in
those cases was the compulsory-joinder provision of section 3-3(b). 
If the newly charged offenses are known to the State at the time of
the original prosecution and they arise from the same set of facts,
then they are subject to the speedy-trial limits that apply to the
original charge, regardless of when the new charges are filed.  We
have no problem with this proposition.  However, it is illogical to
hold that continuances which are attributable to the original
charges are not attributable to the later-filed charges on the
basis that those charges are not before the court.  The defendant
cannot have it both ways.  He cannot seek continuances that benefit
him and enable him to better prepare for trial on the charges and
then seek the dismissal of a later-filed charge on the basis that
120 days had elapsed since he was brought into custody.  
     In the case at bar, before filing additional charges, the
State waited until it could get scientific results to support the
victim's statement that she had been sexually assaulted by the
defendant.  This seems preferable to the State filing charges
initially and having the defendant defend against charges that may
be unfounded or have little supporting evidence.  Nothing in the
record indicates that the aggravated criminal sexual assault
charges were filed in an effort to deprive defendant of his right
to a speedy trial or to hinder his defense.  The speedy-trial
statute was adopted to prevent oppressive pretrial incarceration. 
People v. Hawkins, 212 Ill. App. 3d 973, 980, 571 N.E.2d 1049, 1054
(1991).  Defendant was tried within eight months of his arrest. 
His attempt to obtain mental health evidence that might have been
favorable to him, and not the State's late filing of the aggravated
criminal sexual assault charges, was the reason why he was not
tried within 120 days of his arrest.  At the time of sentencing,
Dr. Krug had sent a partial report.  The parties and court agreed
that because a complete report had not been received, the partial
report would not be considered in sentencing.  
     We note that if the State had nol-prossed the home invasion
charge within the speedy-trial term and later filed the amended
information in this case, the charges would not have been subject
to dismissal absent a showing of prosecutorial misconduct.  See
People v. Freedman, 155 Ill. App. 3d 469, 508 N.E.2d 326 (1987);
People v. Watkins, 220 Ill. App. 3d 201, 581 N.E.2d 145 (1991);
People v. Stinnett, 166 Ill. App. 3d 1027, 520 N.E.2d 1204 (1988). 
In Watkins, defendant was charged with possession with intent to
deliver a controlled substance, and the charge was nol-prossed
because the lab results were not available.
     Defendant relies on People v. Hinkle, 234 Ill. App. 3d 663,
600 N.E.2d 535 (1992), a decision of this district of the Illinois
Appellate Court.  On October 24, 1990, Hinkle was arrested for
unlawful use of weapons by a felon.  On March 11, 1991, the State
filed a two-count criminal information charging defendant with
aggravated criminal sexual assault and unlawful use of weapons by
a felon.  On March 22, 1991, Hinkle filed his motion to dismiss the
aggravated criminal sexual assault charge on speedy-trial grounds. 
At the hearing, the State conceded that it had knowledge of the
facts underlying both charges "from day one."  Relying on People v.
Williams, 94 Ill. App. 3d 241, 418 N.E.2d 840 (1981), the court
dismissed the aggravated criminal sexual assault charge for failure
to comply with the "120-day rule."  Quoting Williams, this court
affirmed the circuit court and reasoned that no delay can be
attributed to a defendant on a new charge until that charge is
filed.  Hinkle, 234 Ill. App. 3d at 666, 600 N.E.2d  at 537; see
also People v. Howard, 205 Ill. App. 3d 702, 563 N.E.2d 1219
(1990).  Upon reflection, this court disagrees with the Hinkle and
Howard decisions and declines to follow them.
     Defendant next argues that Public Act 89-404, which created
the truth-in-sentencing provisions, violates the single-subject
rule of article IV, section 8, of the Illinois Constitution of
1970.  He argues, therefore, that his sentence is void, and he asks
that we order that he receive day-for-day good-time credit as
provided by section 3-6-3 of the Unified Code of Corrections (730
ILCS 5/3-6-3 (West 1994)), the statute in effect prior to the
enactment of Public Act 89-404.  
     Defendant's argument was recently successful in the Fourth
District case of People v. Pitts, No. 4-97-0071 (March 2, 1998). 
See also People v. Reedy, No. 2-96-0101 (March 11, 1998).  The
argument was not successful, however, in the recent Third District
case of People v. Watford, 294 Ill. App. 3d 462, 690 N.E.2d 1009
(1997).  Because we agree with the reasoning of Watford, we hold
that like Watford, the defendant in this case cannot challenge in
a direct appeal the constitutionality of the act codifying the
truth-in-sentencing laws, as the application of these laws is a
matter outside the scope of the sentencing proceedings.  As stated
in Watford:  
     "[I]n order to challenge the application of `good time' credit
     by the Department of Corrections, the defendant must file
     either a habeas corpus petition, a petition for writ of
     mandamus, or an action for declaratory judgment directed at
     the Department of Corrections, alleging that the Department is
     improperly calculating his `good time' credit by implementing
     an unconstitutional statute when determining the time he has
     remaining to serve before his release."  Watford, 294 Ill.
     App. 3d at 464, 690 N.E.2d  at 1011. 
We cannot find, therefore, that defendant's sentence is void.
     Defendant lastly argues that his 12-year prison sentences are
excessive, given his potential for rehabilitation and the
requirement that he serve 85% of the term.  Defendant recognizes
that he did not file a postsentencing motion to reduce sentence as
required by section 5-8-1(c) of the Unified Code of Corrections
(730 ILCS 5/5-8-1(c) (West 1994)).  See People v. Reed, 177 Ill. 2d 389, 686 N.E.2d 584 (1997).  Defendant, however, asks us to decide
the issue raised.  Even if this issue was not waived, defendant's
argument has no merit.  
     It has long been established that the trial court has broad
discretionary powers in choosing the appropriate sentence a
defendant should receive.  Where the sentence chosen by the trial
court is within the statutory range permissible for the pertinent
criminal offense for which the defendant has been convicted, a
reviewing court will disturb the sentence only if the trial court
abused its discretion in the sentence imposed.  People v. Jones,
168 Ill. 2d 367, 374, 659 N.E.2d 1306, 1308 (1995); People v.
Coleman, 166 Ill. 2d 247, 652 N.E.2d 322 (1995).  While the
statutory classification of the crime determines the range of
permissible sentences, the severity of the sentence within that
range depends largely upon the degree of harm caused.  People v.
Gandy, 227 Ill. App. 3d 112, 135, 591 N.E.2d 45, 61 (1992).  
     Defendant argues that the trial court abused its discretion in
sentencing him to 12 years' imprisonment, even though that sentence
is within the statutory range for class X felonies.  Defendant
contends that because he was 37 years old at the time of sentencing
and had no prior felony conviction, he should be considered capable
of rehabilitation.  
     Defendant also argues that less than four months prior to the
offenses against M.G., a person convicted of class X felonies was
eligible for day-for-day good-conduct credit.  Therefore, a person
sentenced to a 12-year prison term was eligible for release in six
years.  Here, although the trial court did not state that it took
into consideration the truth-in-sentencing provision in fashioning
defendant's sentence, it is presumed that the court was aware of
the law.  See People v. Askew, 273 Ill. App. 3d 798, 805, 652 N.E.2d 1041, 1047 (1995).  
     The record shows that the trial court did consider the
circumstances of the offenses.  The trial court had before it
defendant's presentence investigation report, which showed that he
had no prior felony convictions and had convictions for driving
under the influence of alcohol and resisting arrest.  The report
shows that defendant had a substantial history of employment and
served four years in the United States Air Force.  The court heard
defendant's expression of remorse for his actions, which the court
stated it considered in sentencing.  The trial court stated that it
believed that the sentence was necessary to deter similar conduct
by others.  
     The court heard argument from the State that the court should
sentence defendant to between 15 and 20 years' imprisonment.  The
permissible range of sentencing available to the court in this case
was a term of not less than six years' imprisonment and not more
than 30 years' imprisonment.  See 730 ILCS 5/5-8-1(a)(3) (West
1994).  As the trial court noted, the physical trauma defendant
inflicted on the victim was far in excess of the elements required
for home invasion and aggravated criminal sexual assault.  This
court notes that the psychological trauma which was inflicted on
M.G. by the defendant, who intermittently pointed a gun at the
victim and then himself over an extended period of time, was far in
excess of the elements of both offenses.  Given the record, we
cannot find that the court abused its discretion in imposing a
prison sentence of 12 years, which is just six years greater than
the minimum but is 18 years less than the maximum allowable
sentence.  We affirm defendant's sentence.

     Affirmed.

     WELCH, P.J., and HOPKINS, J., concur.