No. 2--03--1409 Filed: 3/31/06
_____________
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
_________________________________________________________________________
_____
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Lake County.
)
Plaintiff-Appellee, ) No. 02--CF--2693
)
v. )
)
ERICK RODRIGUEZ, ) Honorable
) Mary S. Schostok,
Defendant-Appellant. ) Judge, Presiding.
_________________________________________________________________________
_____
JUSTICE O'MALLEY delivered the opinion of the court:
Defendant, Erick Rodriguez, appeals from his convictions of aggravated criminal
sexual assault (720 ILCS 5/12--14(a)(1) (West 2000)) and unlawful restraint (720 ILCS
5/10--3(a) (West 2000)). He argues that his trial counsel provided ineffective assistance of
counsel and that the trial court erred in sentencing him on the aggravated criminal sexual
assault conviction. We affirm but reduce defendant's sentence on the conviction of
aggravated criminal sexual assault from 24 years to 12 years.
BACKGROUND
The State charged defendant with sexually assaulting R.C. and unlawfully restraining
her and her companions, sisters LaParis and Rashawndra Coleman, at Bowen Park in
Waukegan in the early morning hours of July 24, 2002. Defendant was charged with one
count of aggravated criminal sexual assault and three counts of unlawful restraint.
R.C., LaParis, and Rashawndra gave substantially similar accounts of the events at
issue. We recount their collective testimony while pointing out relevant differences. On
July 23, 2002, between 11 and 11:30 p.m., R.C., LaParis, and Rashawndra were standing
with some acquaintances near 8th Street and Lincoln in Waukegan. Rashawndra flagged
down a passing car, which was occupied by defendant, who was the driver, and two male
passengers. Although none of the women knew defendant or his companions,
Rashawndra asked defendant to give her and her companions a ride. Defendant agreed,
and the women sat in the backseat, with one of the passengers. The women asked
defendant take them to Burger King, and he agreed. On the way to Burger King, defendant
gave the women his address at their request. (Rashawndra and LaParis differed over
whether defendant gave his name as well.) While at Burger King, the women ordered food.
After the party left the restaurant, defendant told the women that he wanted to get a bigger
car to accommodate all his passengers. He drove to a house on 10th Street in North
Chicago. There, defendant announced that he had to urinate and then exited the car, with
his companions. The three men went to the back of the house. When they returned a few
minutes later, they stood near the car, speaking Spanish for about five minutes. None of
the women understood the conversation. When the men reentered the car, Rashawndra,
who had consumed a beer defendant had given her (neither defendant nor the women
were of legal drinking age), asked him to drive to a liquor store called Handy's, on 10th
No. 2--03--1409
Street. Defendant agreed, but drove on 10th Street in the direction opposite from Handy's.
When defendant turned from 10th Street onto Sheridan Road, Rashawndra asked why
defendant was not driving to Handy's, and he replied that he was going to a different liquor
store. Defendant then drove into Bowen Park. LaParis testified that she sensed danger
and asked defendant just to take her and her companions home. Defendant replied that he
again had to urinate. He parked the car in a parking lot that was illuminated by a
streetlight. Defendant stepped out of the car and retrieved from the floorboard what
appeared to the women to be a handgun but what was in fact a pellet gun. He pointed the
gun at LaParis and ordered the women to exit the car. When they complied, defendant
ordered them to walk across a grassy expanse toward a wooded area. The women
testified that the woods were entirely dark and that they could not see into them at all. As
the women walked toward the woods, followed by defendant and his companions,
defendant ordered them to drop the extra clothes they were carrying with them for
laundering. The women complied and then entered the woods. They came to the head of
a staircase made of wooden oversized steps set into the ground. There were no lights on
the staircase. Defendant ordered the women to walk down the stairs while he and his
companions remained above. When they had partially descended the stairs, defendant told
the women to stop and directed R.C. to walk back up the stairs toward him while LaParis
and Rashawndra remained behind. Defendant then ordered R.C. to cross the staircase
railing and walk into the woods. After R.C. had walked a short distance into the woods,
defendant told her to stop. He gave the gun to the front-seat passenger, who pointed it at
LaParis and Rashawndra. Defendant asked the women and the men if anyone had any
condoms, and they all said no. Defendant then ordered R.C. to pull down her pants. When
-3-
No. 2--03--1409
she refused, defendant pulled down her pants as well as his own. Defendant then bent
R.C. over and raped her from behind. R.C. felt defendant ejaculate after about two to three
minutes. When defendant pulled his pants back up, he told R.C. to walk over to where the
other men were standing. 1 Defendant and his companions then walked back toward the
parking lot. R.C. and the two other women ran down the staircase. They climbed a fence
and entered a residential area. The resident of the first house at which they sought help
refused to open the door, but the resident of the second house they went to let them in and
dialed 911 for them. The police arrived and transported R.C. to the hospital, where a rape
exam was performed on her. The emergency physician on duty testified that he performed
a pelvic examination on R.C. but found no signs of trauma. However, the physician also
noted that not all sexual assault victims show evidence of trauma. The parties stipulated
that DNA taken from sperm found in R.C.'s vagina matched the DNA profile created from
samples of defendant's blood.
R.C. testified that defendant was the man who sexually assaulted her, but admitted
that she was not "100 percent sure" defendant was the perpetrator. R.C. also testified that,
1
R.C. described another act of sexual abuse that LaParis and Rashawndra did not
mention. R.C. testified that, after raping her, defendant ordered the male backseat
passenger to rape R.C. When the man refused, defendant took the gun from the front-seat
passenger and threatened the backseat passenger, who then led R.C. into the woods. The
backseat passenger pretended to rape R.C., fondling her breasts and rubbing his penis
against her backside. When the man was finished, he rejoined defendant and the other
man.
-4-
No. 2--03--1409
after defendant raped her, she heard clicking sounds from the gun that led her to suspect
that it was not a real firearm. However, after observing the reaction of the backseat
passenger when defendant pointed the gun at him, she again believed the gun was real.
R.C. admitted telling police officers that she believed the gun was fake at one point during
the encounter, but she clarified in her testimony that she did not believe the gun was fake
throughout the whole encounter.
A Waukegan police officer testified that he was dispatched to Bowen Park in the
early morning hours of July 24, 2002. He testified that he observed several articles of
clothing between the parking lot and the top of the staircase.
Charles Draper testified that, on July 24, 2002, between 12 a.m. and 1 a.m., he and
his wife were awakened by noises outside their home. Draper then heard banging against
his back door. Draper went to the door and saw two black women and one Hispanic
woman. Draper testified that the women were disheveled and shaken and that they said,
"They're after us, they're going to kill us, please let us in." Draper let the women inside and
dialed 911.
Waukegan police detectives described how they located both defendant and the
car that matched the description given them by R.C., LaParis, and Rashawndra. A pellet
gun was found during the search of the car. The State introduced into evidence a written
statement that defendant gave police after waiving his Miranda rights. The statement,
translated from Spanish, reads as follows, in broken English:
"I found them at Lincoln and 8th and we went and with two friends we went to
for Burger King. I was driving my red car with two friends and I saw three girls on
8th and Lincoln and we asked them if they wanted a ride and we told them to wait
-5-
No. 2--03--1409
and later they got in and told us that they were hungry and we bought them Burger
King and liqour [sic] and we went to a park and me and a friend took out a miniature
toy pistol. Eusebio was over there still and Jordo and Erick. Eusebio paid for all of
the expenses and to deceive them and that we were going to buy liquor and to take
them to the park and to have sex. I had sex because I had the pistol and the girls
were afraid, and for that they had sex with me. The girls did not know what we were
going to do with them. But my friends knew what we were gong to do. And the
black girls, we told them to go underneath the stairs and we asked the Mexican girl
to lower her pants so they can have sex with her. I imagined she was afraid
because we asked her to bend down so that we can have sex with her. We finished
her and did not use a condom and later that we were finished we began to run and
we got into the car and went to sleep."
The detectives documented a specific question that they asked defendant: "Why did you do
this to her?" Defendant answered in writing: "Because I was horny and I was not thinking in
that I was going to do any harm. I was not thinking in anything. She was attractive and
pretty."
Defense counsel cross-examined the prosecution witnesses as to the ability of
LaParis and Rashawndra to see what took place between defendant and R.C. after he
called her back up the stairs. LaParis and Rashawndra were in disagreement over how far
down the stairway they were when they witnessed the sexual assault. LaParis testified that
they were 12 or 13 steps down from where R.C. was standing, while Rashawndra
estimated that they were 6 steps away. Rashawndra admitted she told police that she and
LaParis were halfway down the staircase. An investigator for the Lake County State's
-6-
No. 2--03--1409
Attorney's office, who took various photographs of the staircase for investigative purposes,
admitted on cross-examination that the streetlight in the parking lot was not visible from
halfway down the staircase. Both women, however, insisted that, though the stairs did not
have their own light source, the streetlight from the parking lot illuminated the stairs enough
for them to see that defendant was raping R.C. R.C., too, testified that the light from the
parking lot illuminated the top portion of the stairs. LaParis testified that she was
particularly able to see defendant and R.C. because of the light-colored clothing both were
wearing. LaParis further testified that she did not remember telling Waukegan police
detectives that she had her back to R.C. during the sexual assault. In his case in chief,
defendant called two Waukegan police detectives who testified that LaParis told them that
she did not witness the sexual assault because she had her back turned and that
Rashawndra told them that R.C. was on her back, not bent over, during the sexual assault.
One of the detectives also testified that R.C. told them she did not believe the gun was
real, but, on cross-examination by the State, the detective admitted that R.C. did not
identify exactly when during the encounter she believed the gun was not real. Defendant
called another detective who testified that he had shown R.C. a photo array that included
defendant's picture and that R.C. was "not sure" which picture showed her attacker.
Defendant testified in his own defense. He testified that, on the night of July 23,
2002, he left home to get beer with his friends Jose and Usavio DeLao. Between 10:30
and 11 p.m., the three were flagged down by three women standing on the corner of
Lincoln and 10th in Waukegan. The women entered the car and asked defendant and his
friends to buy them food. Defendant drove to Burger King, where his friends bought food
for the women. The women ate the food and also drank beer that the men had bought.
-7-
No. 2--03--1409
The women asked if defendant had a bigger car. Defendant replied that he could borrow a
van from a friend. Defendant drove to his friend's home but the friend was not there. While
at the home, defendant and Jose exited the car and spoke about where they could get a
bigger car. When they got back in the car, they asked the women if they were fine with
beer, and the women replied that they preferred Bacardi rum. Defendant testified that he
and his companions looked in vain for a place they could buy alcohol. The six of them
ultimately decided to go to Bowen Park. Defendant had a toy gun in the car, and on the
way to Bowen Park, Jose played with the gun by "clicking" it. Defendant described what
happened after they arrived at the park:
"Q. Did everybody get out?
A. Yes. The six of us stepped out.
***
Q. Did you eventually have intercourse with [R.C.]?
A. Yes. Exactly.
Q. Did you use any force on [R.C.] to have the intercourse?
A. No. Everything was voluntary.
Q. Did you have any conversation with her prior to having the intercourse?
A. Well, we had conversation. We exchanged addresses in order to get out
on
some other occasion.
***
Q. Was there any conversation with respect to drugs?
A. Yes.
-8-
No. 2--03--1409
Q. What was the conversation?
A. If we had any marijuana with us.
Q. What did you tell them?
A. I said yes, we had some in the car.
Q. Did you have any in the car?
A.. No. I didn't have anything.
Q. When you had the intercourse with [R.C.], was there to be any
consideration
for that intercourse?
MR. STRIDE [Assistant State's Attorney]: I object.
THE COURT: Overruled.
THE WITNESS: Everything was in exchange for drugs.
MR. RAFFERTY [defense counsel]: When you say drugs, you mean
marijuana?
A. Yes.
Q. They are not talking about cocaine or heroin?
A. No."
Defendant denied that he ever threatened R.C. with a gun. When asked why he said
otherwise in a written statement to police, defendant explained that he did so out of fear of
the police, because one of the detectives who arrested him threw him against a wall.
During the jury instruction conference, the trial court granted defendant's request for
an instruction on the lesser included offense of criminal sexual assault (720 ILCS 5/12--13
(West 2000)). The jury found defendant guilty of aggravated criminal sexual assault,
-9-
No. 2--03--1409
criminal sexual assault, and unlawful restraint. The convictions of criminal sexual assault
and aggravated criminal sexual assault were merged.
Subsequently, defendant retained a new attorney and filed a posttrial motion alleging
that his trial attorney had provided ineffective assistance of counsel. Following a hearing at
which trial counsel testified, the court denied defendant's motion. The matter proceeded to
sentencing, where the trial court heard evidence in mitigation and aggravation, as well as
defendant's allocution. Operating under the misapprehension that defendant was convicted
of two counts of aggravated criminal sexual assault rather than one, the trial court imposed
two consecutive 12-year terms of imprisonment. The parties brought the matter to the
attention of the trial court the next day, and the trial court resentenced defendant to 24
years on the one count of aggravated criminal sexual assault. The trial court justified the
increased sentence on the one count as being consistent with the court's original aim of
sentencing defendant to a total of 24 years of imprisonment for the sexual assault of R.C.
The trial court denied defendant's motion to reconsider, and this timely appeal followed.
ANALYSIS
I. Ineffective Assistance of Trial Counsel
Defendant's first contention on appeal is that his trial counsel was ineffective in
various ways. Illinois courts address ineffective assistance of counsel claims under the
two-prong test established in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674,
104 S. Ct. 2052 (1984). People v. Albanese, 104 Ill. 2d 504, 526-27 (1984). Under
Strickland, a defendant must prove (1) that defense counsel's performance fell below an
objective standard of reasonableness and (2) that there is a reasonable probability that, but
for this substandard performance, the result of the proceeding would have been different.
-10-
No. 2--03--1409
People v. Alvine, 173 Ill. 2d 273, 293 (1996). Effective assistance of counsel means
competent, not perfect, representation. People v. Odle, 151 Ill. 2d 168, 173 (1992). There
is a strong presumption that counsel's conduct fell within the wide range of reasonable
professional assistance. Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694, 104 S. Ct. at
2065; People v. Miller, 346 Ill. App. 3d 972, 982 (2004). For purposes of Strickland's first
prong, it is not enough that another lawyer, with the benefit of hindsight, would have acted
differently than trial counsel. People v. Young, 341 Ill. App. 3d 379, 383 (2003). Only the
most egregious tactical or strategic blunders bring counsel's representation below
Strickland's standard of objective reasonableness. People v. Briones, 352 Ill. App. 3d 913,
918 (2004). Even if trial counsel did not provide assistance that was objectively
reasonable, the defendant must still show a reasonable probability that counsel's
shortcomings prejudiced the defendant. Strickland, 466 U.S. at 697, 80 L. Ed. 2d at 699,
104 S. Ct. at 2069. "A reasonable probability is a probability sufficient to undermine
confidence in the outcome." Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at
2068. Mere conjecture and speculation are not sufficient to establish this probability.
People v. Gosier, 165 Ill. 2d 16, 24 (1995). Defendant identifies trial counsel's overarching
error as his failure "during any portion of the trial to adequately present defendant's
defense, that [R.C.] had consented to have sexual relations with defendant in exchange for
marijuana." Defendant pinpoints specific ways in which he believes trial counsel failed to
advance the defense of consent. First, he claims that trial counsel gave an inadequate
opening argument, which was as follows:
"Please the Court [sic], your Honor, Mr. Stride, Ladies and Gentlemen of the
Jury.
-11-
No. 2--03--1409
As the Judge has told you, what I say, what Mr. Stride says is not evidence. The
only evidence in this case is going to come from that witness stand in the form of
oral testimony from witnesses or in documents that are tendered and admitted into
evidence. So I'm not going to waste your timing by standing up here and telling you
what I think the evidence will be. The judge has told you that you are not to base
your decision on speculation. And anything that is said here is speculation. ***
I am simply going to ask, Ladies and Gentlemen, that as you have promised
to pay
close attention to the testimony and then to make an informed decision. Thank you."
Defendant notes that trial counsel did not lay out a vision for the defense's case, but simply
urged the jury to concentrate on the evidence rather than the arguments of the parties. "A
defense attorney's decision to make or waive an opening statement on behalf of a
defendant is a question of judgment in strategy or tactics that will not in and of itself
demonstrate the ineffective assistance of counsel." People v. Penrod, 316 Ill. App. 3d 713,
724 (2000); see also People v. Georgev, 38 Ill. 2d 165, 169 (1967). "Although an opening
statement is ordinarily important in order to provide the jury with a clear understanding of
the theory of the case or to explain complex issues [citation], there are strategic reasons for
waiving the opening statement [citation]." Penrod, 316 Ill. App. 3d at 724. Apparently
aware of these principles, defendant qualifies his argument with a concession:
"Trial counsel asked the jury to just pay close attention to the testimony. This may
have been sound trial strategy, if trial counsel had then challenged the testimony of
the State's witnesses and/or presented testimony of the defendant's version of the
incident; however, none of this ever occurred."
-12-
No. 2--03--1409
As defendant appears to recognize, we cannot deem the opening statement a Strickland
violation in itself, but must judge counsel's performance in its totality. People v. Groves,
287 Ill. App. 3d 84, 93 (1997) ("[w]hen applying the Strickland standard, a court is to view
the totality of counsel's conduct in light of all the circumstances").
Next, defendant challenges the adequacy of the cross-examinations of R.C.,
LaParis, and Rashawndra. A defense attorney's cross-examination of a witness is
considered unsound under Strickland's first prong only if there is an utter failure to conduct
any meaningful adversarial testing. People v. Reid, 179 Ill. 2d 297, 310 (1997). Such was
not the case here. Trial counsel thoroughly cross-examined LaParis and Rashawndra
about their ability to see what transpired between R.C. and defendant, several stairs above.
Trial counsel exposed inconsistencies between the two witnesses' testimony as to how far
down the stairs they were when they saw R.C. with defendant. Both women testified that
they could adequately see R.C. and defendant from their positions on the stairs because
the light from the parking lot illuminated the area around R.C. Rashawndra, however,
admitted that she told police that she was halfway down the stairs when she saw defendant
rape R.C., which was significant in light of the fact that an investigator for the Lake County
State's Attorney admitted under cross-examination that he could not see the parking lot
light from halfway down the stairs. Defense counsel's cross-examination of R.C. was brief
and pointed. Defense counsel concentrated primarily on R.C.'s testimony on direct
examination that she submitted to defendant because of the gun, which, at that time, she
believed was a genuine firearm. Defense counsel elicited from R.C. an admission that she
told police that she believed the gun was a "fake" at one point during the encounter.
-13-
No. 2--03--1409
Defendant argues that the cross-examinations of LaParis, Rashawndra, and R.C.
were inadequate because the defense at trial "was not that [LaParis and Rashawndra]
could not see the sexual encounter" but that R.C. "had agreed to it." "The jury," defendant
asserts, "needed to hear why the witnesses would falsify what happened, in order to make
the inconsistencies mean anything." Trial counsel had his reasons for not pressing the
defense's theory of the case more forcefully. Trial counsel testified at the hearing on
defendant's Strickland motion that he did not question R.C. about the possibility that she
consented to sex with defendant, because "[s]he wasn't likely to change her response and
reply to my questions, and the only purpose that would have been served would have been
to hammer the forcefulness of the act into their minds." Trial counsel was not asked why
he did not raise the issue of consent with LaParis and Rashawndra, but we can surmise
that his reasons were the same. In our view, trial counsel's caution on cross-examination
was grounded in reasonable defense strategy. Trial counsel appropriately used cross-
examination to undermine the plausibility of the State's theory of the case (i.e., that R.C.
was raped at gunpoint on the stairs), while reserving his articulation of the defense theory
for defendant's testimony and closing argument.
Defendant insists, however, that trial counsel did not adequately raise the theory of
consent either during defendant's examination or in closing argument. We disagree. On
direct examination, defendant expressly claimed that R.C. had sex with him in exchange for
his promise to provide her marijuana (which he did not actually have). Defendant
emphasizes, however, that trial counsel did not ask defendant for enough details about his
and R.C.'s encounter "to make his version of the events understandable, much less
plausible." Specifically, defendant notes that trial counsel failed to ask defendant why R.C.
-14-
No. 2--03--1409
would lie about being raped. Strickland, however, required trial counsel to present a
meaningful challenge to R.C.'s version of events, not to provide a complete explanation for
her accusation. Trial counsel subjected the State's theory to effective adversarial testing
through cross-examination before presenting the defense's own version of events.
During closing argument, trial counsel incorporated aspects of R.C.'s, LaParis's, and
Rashawndra's testimony to build a case that R.C. consented to sex with defendant:
"I submit that Rashawndra and LaParis could not see a thing from where they
were. When you get the [photograph exhibits] imagine what you are seeing there at
1:30 at night and there are no lights on that stairway. Those girls didn't see
anything. So what do we have?
We are left with [R.C.]. *** 11:30 at night three young girls flagged down
cars look
[sic] for a ride home. Get one to stop about 11:30. They don't know the individuals
and they get in the car. Then they ask him for some food and then they have a beer
or two when they are in the car and they ask him to get some Bacardi. None of
them are old enough to drink and that doesn't make a difference. They are not here
charged with drinking as minors. That is not point [sic]. But the point is all this is
taking place.
The defendant, the driver, gives them his name and address, 535 May Street.
Later
on when the police go look for the defendant they go to 535 May Street and they
see this red car pull in. So he gave them the truth. He told them where he lived.
He gave them his name.
-15-
No. 2--03--1409
Think about that. Do you go advertise yourself before you commit rape?
Hand out
business card [sic] and say just in case you have any trouble finding me after this is
over. I respectfully submit no.
***
Mr. Nerheim [Assistant State's Attorney] would have you believe that when
[defendant and the male passengers] got out of the car at the house they formulated
this plan and everybody knew the rape was being planned. If that was so, then the
second man in the park he must have known it was a toy gun too or did he? He
wouldn't have been scared when the defendant pointed the gun to him.
Was he, in fact, scared? There had been drinking going on. I respectfully
suggest just
to keep the argument he didn't want any part of intercourse but to keep the
argument down he agreed to fake it. Not because he was scared. Can't have it
both ways. Can't have planned it and be scared of it. Doesn't jive [sic]. That is
beside the point because the other gentleman isn't charged. Defendant is.
***
*** Consider the [rape] kit. Found sperm in there. Doesn't indicate that it
was rape.
There was, in fact, no physical trauma. There was some scrapes on the knees. But
nothing from--nothing in the genital area inside or out. It would seem to me that if
there was forced used in the commission of intercourse there would be some
bruises there. ***
-16-
No. 2--03--1409
***
They were looking for a ride home that night. They didn't get it. I suggest
they got
mad when they didn't get it. They ran down the stairs they claim, all they while they
were running, [R.C.] did, climbed a fence, pounded on the door.
What did they say to Mr. Draper? They are after us. They are going to kill us.
But
what did they tell the police? They saw him get in their car and drive away. Not that
they were being chased but that they, in fact, left.
I suggest they got mad. They got very mad because they are left at this park
and
they are no closer to home then when they started out at 11:30. Maybe further for
all I know. I don't know the distance. There are too many inconsistencies in these
statements. The problem with telling a lie and telling a bunch of them is that it is too
damn hard to remember.
*** Was there intercourse? Yes. Absolutely. The stipulation is in. My client
has
admitted to it. He had intercourse with this young lady. Did she come to regret it
later? Maybe. I don't know. I don't know.
But the fact is that they claim somebody is chasing them trying to murder
them when
they have actually told the police they went the other way. They saw someone
wearing white when, in fact, I turned my back I didn't see it. And he had on an
-17-
No. 2--03--1409
orange shirt. Said they could see it perfectly. Even though when you look at the
pictures and see when the spots were identified you see how much distance there
was on this, how much foliage or shrubbery of trees and you have to imagine this in
July when all the leaves and everything are on there and saying it was so dark they
could hardly walk down the stairs and yet tell you halfway down this flight of stairs
they could see what was going on behind the bushes upstairs. No way. No way."
Trial counsel competently argued that the State did not meet its burden. Trial counsel
identified weaknesses in the State's case and suggested, impliedly if not expressly, that the
sex between R.C. and defendant was consensual. 2 Trial counsel's failure to refer back to
defendant's testimony that R.C. had sex with defendant in exchange for a promise of
marijuana was not objectively unreasonable advocacy. Since it was undisputed that R.C.
and defendant had sex on the night in question, the jury was left to decide whether the sex
was consensual. Trial counsel effectively advanced the defense's case by emphasizing the
internal problems in the State's theory that the sex was nonconsensual. The failure of trial
2
The State evidently believed that trial counsel was arguing consent, for in its
rebuttal the State expressly addressed the issue.
-18-
No. 2--03--1409
counsel to incorporate positive evidence of the particular circumstances that prompted
R.C.'s alleged consent did not vitiate the closing argument.
We find that trial counsel's performance, judged as a whole, satisfied Strickland's
standard of reasonableness. However, even if trial counsel failed to meet the Strickland
reasonableness standard through any of the failures alleged above, we could not say that
defendant was thereby prejudiced. The rape of R.C. was attested to by two witnesses
besides R.C. herself, and all three presented relevantly similar testimony. Other State's
witnesses corroborated the women's accounts. A Waukegan police officer testified that he
discovered clothes in the place where, according to the women, defendant ordered them to
drop their extra clothes. Additionally, Charles Draper testified that the women were
disheveled and distressed when they came to his house in the early morning hours of July
24, 2002. Most significant is defendant's written statement to police, which, though
delivered in broken English, can be construed essentially as a confession that defendant
took R.C. to the park to have sex with her and that she submitted to intercourse in fear of
the gun defendant possessed. It was for the trier of fact to weigh defendant's claim that the
confession was false and that he gave it only out of fear. Given the amount of evidence of
defendant's guilt, we cannot say there is a reasonable probability that the outcome of the
trial would have been different had trial counsel's performance been to defendant's
expectations.
II. The Lawfulness of Defendant's Increased Sentence
Defendant's next contention on appeal is that the trial court contravened section 5--
8--1(c) of the Unified Code of Corrections (730 ILCS 5/5--8--1(c) (West 2002)) by
-19-
No. 2--03--1409
increasing his sentence from 12 to 24 years on the conviction of aggravated criminal
sexual assault. Section 5--8--1(c)
provides: "A motion to reduce sentence may be made, or the court may reduce a sentence
without motion, within 30 days after the sentence is imposed. *** [T]he court may not
increase a sentence once it is imposed." 730 ILCS 5/5--8--1(c) (West 2002). The trial
court explained that it doubled the sentence on the aggravated criminal sexual assault
conviction in order to preserve the 24-year sentence that the court originally envisioned for
the rape of R.C..
Defendant argues that section 5--8--1(c), as interpreted in People v. Kilpatrick, 167
Ill. 2d 439 (1995), and subsequent cases, does not permit an increased sentence on a
single conviction even where the total number of years remains the same as before. In
Kilpatrick, the trial court originally sentenced the defendant to consecutive terms of nine
and six years of imprisonment on his convictions of home invasion and attempted murder.
Convinced by the defendant's motion to reconsider that consecutive sentences were not
appropriate under the facts, the trial court vacated the consecutive sentences and imposed
a " 'single sentence of 15 years on the plea of guilty to the two counts.' " Kilpatrick, 167 Ill.
2d at 441. Relying on section 5--8--1(c)'s statement that "the court may not increase a
sentence once it is imposed" (730 ILCS 5/5--8--1(c) (West 2002)), the supreme court held
that the trial court "impermissibly increased the sentences for defendant's two convictions,
from six and nine years for each offense, to 15 years' total incarceration." Kilpatrick, 167 Ill.
2d at 447. The supreme court reasoned that the fact that the "total number of years'
imprisonment remained the same *** [did] not negate the fact that defendant's sentence
was increased, from either six or nine years' incarceration to 15 years in prison." Kilpatrick,
-20-
No. 2--03--1409
167 Ill. 2d at 447. The increase prejudiced the defendant in that it "delayed by a
considerable period of time the date on which the defendant could request parole, thereby
causing the defendant substantial prejudice." Kilpatrick, 167 Ill. 2d at 447. The court
explained the policy behind its construction of section 5--8--1(c):
"Interpretation of section 5--8--1(c) to prevent the sentencing court from
increasing a defendant's term of imprisonment under the facts of this case serves
the goals identified in [North Carolina v. Pearce, 395 U.S. 711, 23 L. Ed. 2d 656, 89
S. Ct. 2072 (1969)], i.e., the risk that the defendant will be penalized for his efforts to
seek and obtain relief with respect to alleged errors in the sentence he received.
Although we do not believe that the circuit court in the instant cause was motivated
by any ill-will against the defendant, it is necessary to construe section 5--8--1(c)
according to its plain terms and in a fashion that reasonably protects a defendant's
legitimate interest in unbiased sentencing. A defendant should not have to run the
risk that a challenge to his consecutive sentencing will result in a resentencing of
increased length. Such a risk would have an improper chilling effect on a
defendant's decision to challenge a consecutive sentence as imposed by the trial
court and could violate fundamental principles of due process of law." Kilpatrick,
167 Ill. 2d at 447.
Chief Justice Bilandic and Justice Heiple dissented. Both argued that, because
defendant's sentence remained at 15 years total, there simply was no increase in his
sentence. See Kilpatrick, 167 Ill. 2d at 448-49 (Bilandic, P.J., and Heiple, J., dissenting).
-21-
No. 2--03--1409
Kilpatrick was followed in People v. Jones, 168 Ill. 2d 367 (1995), where the trial
court, on the defendant's motion, vacated the defendant's consecutive sentences of 25
years each on his convictions of attempted murder and armed robbery, on the ground that
it had failed to admonish defendant during his guilty plea of the possibility that the court
might impose consecutive sentences. The trial court resentenced defendant to a single
term of 30 years' imprisonment with respect to his attempted murder conviction, but
imposed no new sentence on the armed robbery conviction. The supreme court held that
section 5--8--1(c) did not permit the increased sentence on the attempted murder
conviction. Jones, 168 Ill. 2d at 372.
We agree with defendant that section 5--8--1(c), as interpreted in Kilpatrick and
Jones, controls here. The State attempts to distinguish these authorities on the ground that
they involved errors more substantial than the mere "clerical mistake" that the trial court
rectified here. While we appreciate the difference between the mending of a clerical error
and the correction of a misapprehension of law, we cannot ultimately conclude that section
5--8--1(c) recognizes that difference. As Kilpatrick noted, section 5--8--1(c) "[b]y its express
terms *** forbids the increase in a sentence once it has been imposed." Kilpatrick, 167 Ill.
-22-
No. 2--03--1409
2d at 446. 3 Section 5--8--1(c) is concerned only with the modified sentence itself, not with
whatever manner of error the modification rectified, e.g., mistake of law or clerical error.
The categorical nature of the prohibition also makes it immaterial whether the defendant
sought the modification or the trial court made it sua sponte.
"[I]n determining whether the defendant's sentence was improperly increased, we
consider the individual sentences, not the aggregate of the sentences imposed." People v.
Miller, 286 Ill. App. 3d 297, 300 (1997). The trial court was not permitted to increase the
sentence on defendant's conviction of aggravated criminal sexual assault despite the fact
that the total number of years of incarceration remained at 24 years. Therefore, we reduce
defendant's sentence on the conviction for aggravated criminal sexual assault from 24
years to 12 years. Having so held, we need not address defendant's alternative argument
that the sentence of 24 years was excessive in light of applicable sentencing factors.
For the foregoing reasons, we affirm the judgment of the circuit court of Lake County
as modified herein.
Affirmed as modified.
CALLUM and KAPALA, JJ., concur.
3
Section 5--8--1(c) does not supply a definition of "impose," which raises interesting
questions. For instance, if a trial court orally pronounces a sentence of 10 months but, in
the same breath, corrects itself and articulates a sentence of 10 years, has the trial court
increased an already imposed sentence? We need not explore this issue since, under any
meaningful construction, a sentence is imposed if it is contained in a written order issued by
the court.
-23-
No. 2--03--1409
-24-
People v. Rodriguez
Combined Opinion