People v. Short , 62 Ill. App. 3d 733 ( 1978 )

Mr. JUSTICE ALLOY

delivered the opinion of the court:

Defendant Richard Short appeals from convictions of aggravated kidnapping, rape and two counts of deviate sexual assault which were returned in the Circuit Court of Kankakee County following a jury trial. Defendant was sentenced to concurrent terms of 100 to 200 years imprisonment for each offense, with these sentences to run concurrently, but all of the sentences imposed in this case to run consecutively to the sentences imposed upon defendant in the case of People v. Short (3d Dist. 1978), 60 Ill. App. 3d 640, 377 N.E.2d 389.

On appeal, defendant argues that the trial court abused its discretion in imposing excessive and consecutive sentences and two convictions and sentences for deviate sexual assault.

From the record, it is clear that on March 19, 1976, at approximately 8:30 p.m., while Brenda Jones was walking along a street in Kankakee, IUinois, defendant seized her from behind, put a knife to her throat and forced her into an abandoned building. Once in the building, defendant ordered Brenda to disrobe and struck her when she refused to do so. Defendant forced Brenda to perform deviate sexual acts and to engage in sexual intercourse with him. Following presentation of the evidence, the jury found defendant guilty of rape, aggravated kidnapping, and of two counts of deviate sexual assault.

A joint sentencing hearing was held on the convictions in this case and also on the convictions entered in People v. Short (1978), 60 Ill. App. 3d 640, 377 N.E.2d 389, and the trial court heard evidence of defendant’s prior criminal record. Defendant was convicted of attempted robbery in Mississippi in 1958, and although he was paroled twice while serving sentence for that conviction, he was returned to prison both times for parole violations (one for attempted robbery and one for assault and battery). Defendant was finally released from imprisonment for the Mississippi conviction in 1968. In 1970, defendant was convicted in Illinois of offenses of aggravated battery, armed violence and armed robbery, and imprisoned on those convictions until November 1975. The acts which gave rise to defendant’s convictions in this case and, also, in the other current case pending on appeal against him (People v. Short (1978), 60 Ill. App. 3d 640, 377 N.E.2d 389, all occurred on March 19, 1976. Defendant was 34 years of age at the time of the sentencing hearing, and had not been out of prison for more than two consecutive years since he was 16 years of age.

At the sentencing hearing, the State recommended that defendant be sentenced to terms of 250 to 300 years imprisonment on each conviction in this case. Defendant made no specific recommendation, but requested the court to impose sentences shorter than those requested by the State. After hearing the evidence and arguments of counsel, the trial court sentenced defendant to concurrent terms of 100 to 200 years imprisonment on each of the four convictions in this case and, also, ordered that the sentences imposed in the instant case, run consecutively to the sentences imposed in the companion case, People v. Short, 60 Ill. App. 3d 640, 377 N.E.2d 389.

On appeal in this court, defendant argues that the sentences imposed by the trial court are excessive, and requests this court to reduce the sentences pursuant to Supreme Court Rule 615 (Ill. Rev. Stat. 1977, ch. 110A, par. 615). We have stated in People v. Thomas (3d Dist. 1976), 38 Ill. App. 3d 689, 692, 348 N.E.2d 285, 288, that:

“The imposition of a sentence is a matter of judicial discretion and the sentence imposed by a trial court should not be changed by a reviewing court unless it is apparent that the judge abused his discretion."

All of the offenses committed by defendant in the instant case are Class 1 felonies, for which defendant could be sentenced to any indeterminate sentence having a minimum of at least four years. (Ill. Rev. Stat. 1977, ch. 38, par. 1005—8—1.) The Illinois Supreme Court has stated in People v. Sprinkle (1974), 56 Ill. 2d 257, 264, 307 N.E.2d 161, cert. denied (1974), 417 U.S. 935, 41 L. Ed. 2d 239, 94 S. Ct. 2650:

“It is well-established law in Illinois that where it is claimed that the sentence imposed upon a defendant is excessive, though within the limits prescribed by the legislature in the Criminal Code, ‘that sentence should not be disturbed unless it is greatly at variance with the purpose and spirit of the law or manifestly in excess of the proscriptions of section 11 of article II of the Illinois constitution [1870].’ People v. Hampton (1969), 44 Ill. 2d 41, 48.

The trial court is normally in a better position during the trial and hearing in aggravation and mitigation to make a sound determination as to the punishment to be imposed than are courts of review. People v. Hampton (1969), 44 Ill. 2d 41. See also People v. Taylor (1965), 33 Ill. 2d 417, 424.”

As further stated in People v. Phillips (3d Dist. 1978), 58 Ill. App. 3d 109, 110-11:

“This court’s power to reduce sentences [pursuant to Supreme Court Rule 615] is narrowly limited to those cases where the record clearly reveals that the trial court abused its discretion in imposing sentence. [Citation.] The reasons supporting the narrow construction of our power under rule 615 are obvious and have been frequently enunciated. A proper sentence must be based upon the particular circumstances of each case. [Citation.] Included among the factors to be considered in imposing sentence are the defendant’s credibility, demeanor, general moral character, mentality, social environment, habits and age. [Citation.] Also to be taken into consideration are the ‘nature and circumstances of the offense’ for which defendant is being sentenced. [Citation.] The trial judge, who has the opportunity to hear the evidence presented and to observe the defendant, is in a far superior position to evaluate these factors than a court of review which is limited to the facts contained in a cold record.”

In the instant case, the defendant’s offenses involved the use of force and a weapon. The defendant has been imprisoned for most of his adult life. He was released four times since 1958, and his subsequent conduct has on each occasion resulted in his return to prison. Under such circumstances, we conclude that the trial court did not abuse its discretion in sentencing defendant.

Defendant has also argued that he was prejudiced by the entry of sentences on the two convictions of deviate sexual assault. Defendant was charged and convicted on two counts of deviate sexual assault, one for cunnilingus and one for fellatio. Defendant contends that vacation of one of the judgments of conviction and sentences for deviate sexual assault is required by the precedent of People v. Cox (1972), 53 Ill. 2d 101, 291 N.E.2d 1, wherein the court held that convictions and sentences on two counts of indecent liberties with a child could not stand when the counts were based upon a single transaction and occurred almost simultaneously against a single victim.

Since we do not find that the conclusions of the supreme court as announced in People v. Cox (1972), 53 Ill. 2d 101, 291 N.E.2d 1, have been expressly modified by the later case of People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838, we conclude that we should adhere to the standard expressed in the Cox case. We, therefore, conclude that the trial court should have entered judgment of conviction and imposed sentence on only one of the two counts of deviate sexual assault.

Defendant has also argued that the trial court abused its discretion in ordering that the sentences imposed in this case should run consecutively to the sentences imposed in the companion case to which we have referred. The Unified Code of Corrections (Ill. Rev. Stat. 1977, ch. 38, par. 1005—8—4(b)) provides:

“The court shall not impose a consecutive sentence unless, having regard to the nature and circumstances of the offense and the history and character of the defendant, it is of the opinion that such a term is required to protect the public from further criminal conduct by the defendant *

It is clearly apparent from defendant’s criminal record that defendant has persisted, upon his various releases from imprisonment, in the commission of criminal acts. We, therefore, conclude that the trial court did not abuse its discretion in imposing consecutive sentences. People v. Dimond (3d Dist. 1977), 54 Ill. App. 3d 439, 369 N.E.2d 593.

The judgment and sentence imposed by the trial court on one of the counts for deviate sexual assault (for fellatio) are herewith vacated, but the remaining judgment of conviction and sentence on the charge of deviate sexual assault is affirmed.

The judgments and sentences imposed in the Circuit Court of Kankakee County, as modified and changed by vacation of one conviction and sentence of deviate sexual assault, are affirmed.

Affirmed.

BARRY, P. J., concurs.