People v. Bole

• Decision Date: 30 December 1991
• Docket Number: No. 2-89-1218,2-89-1218
• Citation: 585 N.E.2d 135,223 Ill.App.3d 247
• Parties: , 165 Ill.Dec. 739 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Frederick J. BOLE, Jr., Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 135

585 N.E.2d 135

223 Ill.App.3d 247, 165 Ill.Dec. 739

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Frederick J. BOLE, Jr., Defendant-Appellant.

No. 2-89-1218.

Appellate Court of Illinois,

Second District.

Dec. 30, 1991.

G. Joseph Weller, Deputy Defender, Ingrid L. Moller, argued, Office of the State Appellate Defender, Elgin, Frank Rhode, Jr., Trial Counsel, for Frederick J. Bole, Jr.

Thomas F. Baker, McHenry County State's Atty., Woodstock, William L. Browers, Deputy Director, State's Attys. Appellate Prosecutor, Cynthia N. Schneider, argued, State's Attys. Appellate Prosecutor, Elgin, for the People.

Justice NICKELS delivered the opinion of the court:

Defendant, Frederick Bole, Jr., was indicted in the circuit court of McHenry County on seven counts of criminal sexual assault against his stepdaughter. (Ill.Rev.Stat.1989, ch. 38, par. 12-13(a)(3).) He subsequently entered a guilty plea to counts I, III, and VI, and the State nol-prossed the other four counts. After a sentencing hearing, defendant was sentenced to 8 years' imprisonment on count VI, 10 years' imprisonment on count I, and 10 years' imprisonment on count III, all terms to run consecutively. Defendant's motion to withdraw his guilty plea or to reduce sentence was denied. On appeal defendant contends that section 5-8-4(a) of the Unified Code of Corrections (Corrections Code) (Ill.Rev.Stat.1989, ch. 38, par. 1005-8-4(a)) is unconstitutional; that his guilty plea was not knowingly and voluntarily made; that he received ineffective assistance of counsel; that he did not commit the offenses in a single course of conduct; and that the sentences are excessive.

At the preliminary hearing, defendant was advised by the trial court that he was indicted for seven, separate Class 1 felonies. The court explained that a Class 1 felony was punishable by a sentence of not less than 4 years nor more than 15 years' imprisonment. Defendant was told he could receive consecutive terms of imprisonment. Defendant pleaded not guilty.

Defendant later withdrew his not guilty plea on counts I, III, and VI and entered a plea of guilty to those counts. The State nol-prossed the remaining counts. The State advised the court that it was not asking that the second and third offenses be treated as Class X offenses. (Ill.Rev.Stat.1989, ch. 38, par. 12-13(b).) The court then admonished defendant pursuant to Supreme Court Rule 402. (134 Ill.2d R. 402.) The court explained the sentencing range for each Class 1 felony count and fines and informed defendant of mandatory supervised release. Defendant was also told that these were separate offenses and that consecutive terms of imprisonment could be imposed. He was advised that the sentences could be concurrent.

Defendant indicated that he understood these admonishments and that he was voluntarily entering a guilty plea to the three counts. The State presented the factual basis for the charges. If the matter went to trial, evidence and testimony would have been introduced to show that on March 1, 1989, February 27, 1989, and February 22, 1989, defendant knowingly committed an act of sexual penetration by placing his penis into the vagina of his stepdaughter. The victim was under the age of 18 years at the time. The court entered judgment against defendant on each of the three counts.

When the matter came up for sentencing hearing on October 13, 1989, the State informed the defense attorney for the first time that it was seeking three consecutive prison terms under section 5-8-4(a). (Ill.Rev.Stat.1989, ch. 38, par. 1005-8-4(a).) Under this section consecutive prison terms were mandatory. The trial court and the defense attorney never previously advised defendant that if prison terms were imposed, they had to be consecutive. Defendant was eligible for probation under the family-member exception found in section 5-5-3(e) of the Corrections Code as well. (Ill.Rev.Stat.1989, ch. 38, par. 1005-5-3(e).) The defense attorney informed defendant prior to the sentencing hearing commencing that the State was seeking consecutive prison terms.

The State called Reverend Blake Higginbotham, defendant's wife Michelle Bole, defendant's ex-wife Susan Bole, defendant's daughter from a previous marriage, and the victim, defendant's stepdaughter. The victim testified that defendant started having intercourse with her when she was 11 years old. She was 15 years old at the sentencing hearing. She stated that defendant had sex with her over 100 times. The victim said that defendant fondled her and also had her perform certain sexual acts on defendant whenever the victim's mother left the house and that these incidents occurred several times a week. The victim had attempted suicide mainly by clawing at herself.

Defendant presented the testimony of a psychologist, Dr. Gerald Girdaukas, regarding defendant's prospects for rehabilitation through counseling. Three men from defendant's church, who were co-owners of Cornerstone Waste Systems, testified for defendant. They would provide defendant with a job and a place to live if he received probation. Norbert Selking, a member of the Community Upholding Persons, testified that defendant regularly attended meetings and had been a good influence on other prisoners. Defendant also testified on his own behalf.

The State asked for consecutive, 10-year terms of imprisonment for each conviction. The State pointed out that consecutive terms were mandatory under section 5-8-4(a). It asked the court to consider the psychological harm to the victim and that defendant had abused the victim over 100 times. Defense counsel stressed factors in mitigation and asked for probation. The court then sentenced defendant to consecutive terms of 8, 10 and 10 years' imprisonment pursuant to section 5-8-4(a). Ill.Rev.Stat.1989, ch. 38, par. 1005-8-4(a).

At the hearing on defendant's motion to withdraw his guilty plea, defendant claimed that the trial court failed to advise defendant that if prison terms were imposed such terms were mandatorily consecutive. He claimed his plea was not knowingly and voluntarily made as a result. The trial court denied defendant's motion finding that it had advised defendant of the possibility of consecutive sentences.

While defendant raises several issues, we find that a determination of his fourth issue is dispositive of most of the other matters raised on appeal. Defendant contends that he was improperly sentenced to mandatory consecutive sentences under section 5-8-4(a) of the Corrections Code (Ill.Rev.Stat.1989, ch. 38, par. 1005-8-4(a)), when the offenses for which he was sentenced were not committed in a "single course of conduct" as required under section 5-8-4(a). Defendant was sentenced to consecutive terms on counts I, III, and VI. Count I charged defendant with a violation of section 12-13(a)(3) of the Criminal Code of 1961 (Criminal Code) when defendant knowingly committed an act of sexual penetration against his stepdaughter on or about March 1, 1989. Count III charged the same offense except as occurring on or about February 27, 1989. Count VI charged the same offense as counts I and III except as occurring on or about February 22, 1989.

The relevant portion of section 5-8-4(a) provides as follows:

"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." (Emphasis added.) Ill.Rev.Stat.1989, ch. 38, par. 1005-8-4(a).

Defendant argues that the three incidents occurred several days apart, separated by intervening circumstances, and can be said to be independently motivated. He claims the offenses are not part of a single course of conduct, and therefore the mandatory consecutive sentence provision of section 5-8-4(a) was not applicable. He asks that his sentence be vacated and the matter remanded for resentencing. In his reply brief defendant acknowledges a recent decision from the Appellate Court, Fourth District, People v. Ewald (1991), 210 Ill.App.3d 7, 154 Ill.Dec. 451, 568 N.E.2d 451, which would defeat defendant's argument on a different basis. He posits that the construction of the statute applied in Ewald is incorrect.

The State does not rely on People v. Ewald (1991), 210 Ill.App.3d 7, 154 Ill.Dec. 451, 568 N.E.2d 451, in its brief which implicitly contradicts the State's position taken therein. However, the State does rely on People v. Hough (1991) 221 Ill.App.3d 447, 164 Ill.Dec. 51, 582 N.E.2d 259, which adopted the reasoning in People v. Ewald (1991), 210 Ill.App.3d 7, 154 Ill.Dec. 451, 568 N.E.2d 451, concerning section 5-8-4(a). The State argues that "course of conduct" implies a range of activity and is not limited to a single incident. It claims that defendant has engaged in a pattern of sexual penetration with his stepdaughter with the same intent each time: gratification of sexual desires. Therefore, defendant engaged in a "single course of conduct" with no substantial change in his criminal objective, and consecutive sentences were mandatorily required.

This issue requires an initial determination of whether the mandatory consecutive sentence portion of section 5-8-4(a) (People v. Lafferty (1990), 207 Ill.App.3d 136, 152 Ill.Dec. 37, 565 N.E.2d 279) only applies in cases where a conviction for either section 12-13 or 12-14 of the Criminal Code arises from a "single course of conduct" in which a defendant was convicted of more than one offense. If it is found that this exception only applies where the section 12-13 or 12-14 offense was committed as part of a single...