People v. Moore

• Decision Date: 31 October 1973
• Docket Number: No. 57850,57850
• Citation: People v. Moore, 304 N.E.2d 696, 15 Ill.App.3d 691 (Ill. App. 1973)
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Darryl MOORE, Defendant-Appellant.
• Court: Appellate Court of Illinois

Page 696

304 N.E.2d 696

15 Ill.App.3d 691

PEOPLE of the State of Illinois, Plaintiff-Appellee, v.Darryl MOORE, Defendant-Appellant.

No. 57850.

Appellate Court of Illinois, First District, Fourth Division.

Oct. 31, 1973.

James J. Doherty, Public Defender of Cook County, for defendant-appellant; Shelvin Singer, Asst. Public Defender, of Counsel.

Bernard Carey, State's Attorney, County of Cook, for plaintiff-appellee; Kenneth L. Gillis, William K. Hedrick, Nicholas P. Iavarone, Asst. State's Attys., of counsel.

BURMAN, Presiding Justice, delivered the opinion of the court.

The defendant, Darryl Moore, was indicted on a charge of rape.He waived trial by jury, was found guilty as charged and was sentenced to the Illinois State Penitentiary for a period of not less than five years nor more than ten years.

The issues raised by defendant on this appeal are: (1) whether the statutory minimum sentence of four years without possibility of probation for the offense of rape violates the 1970 Illinois Constitution, article I, section 11, which requires that the objective of punishment be to restore the offender to useful citizenship and (2) whether a five to ten year sentence for rape is excessive for an 18 year old first offender.

We briefly summarize the evidence as presented by the State.At about 1:00 A.M. on September 29, 1971, Dorothy Williamson and her daughter, Vernette Boler, age 22, were walking home.They noticed someone following them.They went into a bar hoping to elude him, but noticed that the man had also entered the bar.Believing this to have perhaps been his destination all along, they left but the man again followed.He induced them to go into an alley by motioning an object which they believed was a gun.He ordered the mother to leave and told them that if she did not he would shoot them both with the gun-like object, whereupon the mother fled.He then ordered Vernette to take off her clothes, forced her to lie down, and forcibly raped her.In the meantime, the mother waved down a passing squad car and when the police arrived at the alley Vernette screamed and the man, later positively identified as the defendant, hurriedly pulled his pants up and ran.He was quickly apprehended and found to be carrying an object that appeared to be a gun which was later found to be a cigarette lighter shaped like an automatic pistol.His pants were ripped and his pants zipper was open.

We first address ourselves to the contention that the statutory minimum sentence for the offense of rape is unconstitutional.Illinois Revised Statutes 1967, ch. 38, par. 11--1(c) provides:

'A person convicted of rape shall be imprisoned in the penitentiary for any indeterminate term with a minimum of not less than 4 years.'

Par. 117--1(a) of the same chapter provides that a rape offender may not receive probation.The new Unified Code of Corrections which amended the foregoing provisions effective January 1, 1973, provides the same.(Ill.Rev.Stat.1972 Supp., ch. 38, par. 11--1(c)(as amended), par. 1005--8--1(b)(2), (c)(2), par. 1005--5--3(d).)

Under the former Illinois Constitution, all penalties were required to be retributive, that is, 'proportioned to the nature of the offense.'(1870 Ill.Const. art. II, sec. 11.)Section 11 of article I of the 1970, S.H.A. Constitution provides:

'All penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship.'

Thus the new constitution now expressly calls for a consideration of rehabilitation in sentencing.

The defendant asserts that the court was unable to consider rehabilitation because the legislature arbitrarily pre-judged all rape offenders without regard for facts and circumstances peculiar to each individual by imposing a mandatory minimum sentence of four years.It is argued that sentencing under the statute defeats the express constitutional mandate of article I, section 11, by disregarding potentially rehabilitative alternatives to imprisonment.We are not so persuaded.We cannot subscribe to the narrow interpretation interposed by defendant.

Section 11 clearly provides that all penalties shall also be determined According to the seriousness of the offense.The State's position, to which we subscribe, is that article I, section 11, is a statement of public policy aimed at both the legislature and the court.The legislature considered both rehabilitation and the seriousness of the offense of rape and determined that in the interest of the public the statutory minimum must be four years.We do not feel the call for a consideration of the rehabilitative aims in sentencing contained in article I, section 11, now deprives the legislature of fixing minimum penalties for crime, which has long been within their domain.(SeePeople v. Landers, 329 Ill. 453, 457, 160 N.E. 836, 838.)Furthermore, the framers of the 1970Constitution apparently did not intend the document to abolish the death penalty in Illinois, since a separate referendum regarding its retention was submitted to the voters at the same time the constitution was submitted for approval.(SeeS.H.A. Const., art. I, sec. 11, Constitutional Commentary, at 545.)Since the death penalty is the antithesis of rehabilitative sentencing, this buttresses the notion that article I, section 11 was not intended to make...