November 30, 2001 (changed to anOpinion)
(filed on October 10, 2001 as a Rule 23 Order)

No. 3--00--0487

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2001

Defendant Richard O. Wade pleaded guilty to one count eachof predatory criminal sexual assault of a child (720 ILCS 5/12--14.1(a)(1) (West 1996)) and child pornography (720 ILCS 5/11--20.1(a)(1)(ii) (West 1996)). He was sentenced to consecutiveprison terms of 15 and 7 years, respectively. Those terms weresubsequently reduced to 12 and 5 years. On appeal, defendantclaims that (1) his prison sentences should be modified to runconcurrently, and (2) the trial court erred in orderingforfeiture of a computer and digital camera without conducting aforfeiture hearing pursuant to section 11--20.1A of the CriminalCode of 1961 (Code) (720 ILCS 5/11--20.1A (West 1996)). Weaffirm in part and reverse in part.

The State brought a 13-count indictment against defendant,charging him with one count of predatory criminal sexual assaultof his 11-year-old step-daughter, M.M., and 12 counts of childpornography. Pursuant to a partially negotiated plea agreement,defendant pleaded guilty to predatory criminal sexual assault(count I) and child pornography committed contemporaneously withthe assault (count II). In exchange, the State dismissed theremaining 11 counts of child pornography.

At the hearing to accept defendant's plea, the prosecutorpresented a factual basis concerning an incident that occurredbetween June 1, 1997, and June 1, 1998. During that incident,defendant caused M.M. to perform an act of fellatio on him andtook a picture of her doing so. The picture was downloaded froma digital camera into the family computer, where it wassubsequently discovered by a family friend. Followingadmonishments, the trial court accepted defendant's plea and setthe cause for sentencing.

At the sentencing hearing, the parties introduced extensivetestimony in aggravation and mitigation. In closing remarks, theprosecutor recommended imposition of maximum prison terms to beserved consecutively pursuant to section 5--8--4(a) of theUnified Code of Corrections (730 ILCS 5/5--8--4(a) (West 1996))and requested a forfeiture order pursuant to section 11--20.1(e)of the Code (720 ILCS 5/11--20.1(e) (West 1996)).

Prior to imposing sentence, the court determined that theoffenses were committed during a single incident. The courtadmonished defendant that consecutive sentences were mandatory onthat basis. The court also found that defendant's potential forrehabilitation was outweighed by the harm inflicted on the victimand the need to deter others. Accordingly, the court imposedconsecutive terms of 15 and 7 years for the two offenses. Thecourt then declared that it was granting the State's request forforfeiture of the digital camera and the computer. Defensecounsel objected to the forfeiture order on grounds that theproperty was co-owned and the illegal material could be deleted. The objection was overruled.

Defendant's post-sentencing motion was denied and heappeals.

Defendant initially contends that his sentences must bemodified to run concurrently pursuant to Apprendi v. New Jersey,530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct 2348 (2000). TheSupreme Court in Apprendi held that any factor, other than aprior conviction, which increases the penalty for a crime beyondthe prescribed statutory maximum must be pleaded and provedbeyond a reasonable doubt. Apprendi, 530 U.S. 466, 147 L. Ed. 2d435, 120 S. Ct 2348.

Defendant argues that his aggregate sentence wasunconstitutionally increased without proof beyond a reasonabledoubt that the two offenses were committed as part of a singlecourse of conduct (see 730 ILCS 5/5--8--4(a) (West 1996)). During the pendency of this appeal, the appellate court in Peoplev. Maiden, 318 Ill. App. 3d 545, 743 N.E.2d 1052 (2001)considered and rejected this argument. Our supreme courtsubsequently approved the holding of Maiden in People v. Wagener,196 Ill. 2d 269, ___ N.E.2d ___ (2001), and People v. Carney, No.90549 (June 21, 2001). In both of these recent decisions, thesupreme court ruled that the mandatory consecutive sentencingprovisions of section 5--8--4 of the Unified Code of Correctionsdo not increase punishment exceeding the statutory maximum foreach discrete offense, but only control how multiple sentencesare served. Accordingly, sentences imposed pursuant to section5--8--4 do not violate the rule of Apprendi. Wagener, 196 Ill.2d 269, ___ N.E.2d ___; Carney, No. 90549. Based on bindingprecedent, we now reject defendant's constitutional challenge tohis prison sentences.

Defendant argues in the alternative that the trial courtmight have erred by imposing consecutive sentences pursuant tothe statute in effect at the time of sentencing, without findingthat the two offenses were committed during a single course ofconduct. See Pub. Act 90--128, eff. July 22, 1997 (amending 730ILCS 5/5--8--4(b)). This argument is not well taken.

Public Act 90--128 added a mandatory consecutive sentencingprovision in subsection 5--8--4(b) for triggering offenses notcommitted during a single course of conduct, and left intact themandatory provision of subsection 5--8--4(a) for offenses thatwere so committed. See 730 ILCS 5/5--8--4(a),(b) (West 1998). Thus, after July 22, 1997, mandatory consecutive sentencingapplies when one of the offenses was predatory criminal sexualassault of a child, whether the offenses were committed togetheror separately.

In this case, the offenses charged in counts I and II werecommitted between June 1, 1997, and June 1, 1998; therefore, theycould have been committed prior to the amending legislation. However, the record discloses that the trial court determinedthat the two offenses were committed during a single course ofconduct. Accordingly, the court properly imposed mandatoryconsecutive sentences under subsection 5--8--4(a), and the July22, 1997, amendment to subsection 5--8--4(b) could not haveaffected the sentencing decision.

Next, defendant argues that his personal computer and camerawere forfeited in violation of section 11--20.1A(b)(1) of theCode (720 ILCS 5/11--20.1A(b)(1) (West 1996)). In response, theState argues that a second forfeiture provision, subsection 11--20.1(e) (720 ILCS 5/11--20.1(e) (West 1996)), "overlaps" section11--20.1A and allows the State to obtain a forfeiture orderpursuant to article 36 of the Code (720 ILCS 5/36--1 et seq.(West 1996)). That article, the State suggests, requires that aforfeiture complaint be filed and a hearing held only if theproperty at issue is registered with a state or federal agency. Further, the State contends, there was sufficient evidenceintroduced at defendant's guilty plea and sentencing proceedingsto support the forfeiture order. In his reply brief, defendantcontends that the State failed to comply with article 36procedures as well.

Resolution of this issue requires a threshold determinationof which statutory provision (11--20.1A or 11--20.1(e)) controlsthe forfeiture of personal equipment used in the commission ofchild pornography. This determination, in turn, requiresascertainment of the legislature's intent. People v. 1991 DodgeRam Charger, 250 Ill. App. 3d 810, 620 N.E.2d 448 (1993). Theplain language of a statute is the best indicator of legislativeintent. People v. Rissley, 165 Ill. 2d 364, 651 N.E.2d 133(1995). We are also guided by rules that: (1) statutes whichrelate to the same subject are deemed to be in pari materia andshould be construed together (People ex rel. Daley v. DatacomSystems Corp., 146 Ill. 2d 1, 585 N.E.2d 51 (1991)); and (2) acourt should avoid an interpretation that would render anyportion of a statute meaningless or void. McNamee v. FederatedEquipment & Supply Co., Inc., 181 Ill. 2d 415, 692 N.E.2d 1157(1998). Further, amendments to statutes are construed togetherwith the original act, and the language of an amended statute isconstrued in light of the need for the amendment and the purposeit serves. People v. Woodard, 175 Ill. 2d 435, 677 N.E.2d 935(1997).

The legislative history of Illinois' child pornographystatutes sheds light on the legislature's intent. Subsection 11--20.1(e) was added by Public Act 84--1029, effective November 18,1985. 720 ILCS Ann. 5/11--20.1, Historical & Statutory Notes, at201-202 (Smith-Hurd 1993). The subsection specificallyauthorizes the forfeiture of pornographic reproductions and othermaterials and equipment used in committing child pornography andprovides that such property be "seized and forfeited in themanner, method and procedure provided by Section 36--1" of theCode. 720 ILCS 5/11--20.1(e) (West 1996). Section 36--1 appliesto the seizure of vessels, vehicles and aircraft. Forfeitureprocedures for property seized pursuant to section 36--1 arecontained in section 36--2. 720 ILCS 5/36--2 (West 1996).

Effective August 15, 1986, section 11--20.1 was amended byPublic Act 84--1280, which added a forfeiture provision insubsection (f). The amendment provided procedures forforfeitures of all personal and business profits, proceeds andproperty and property interest "acquired or maintained as aresult of child pornography." Ill. Rev. Stat. 1987, ch. 38, par.11--20.1(f)(1). The legislation thus greatly expanded the scopeof property subject to forfeiture, while leaving intact theprovision in subsection (e) for forfeiture of certain kinds ofpersonal property and equipment used in committing childpornography.

Effective August 19, 1988, section 11--20.1 was amended byPublic Act 85--1194. This amendment deleted the forfeitureprocedures in subsection 11--20.1(f) and created a new section,11--20.1A, entitled "Forfeitures." 720 ILCS 5/11--20.1A (West1992); 720 ILCS Ann. 5/11--20.1, Historical & Statutory Notes, at201-02 (Smith-Hurd 1993).

The plain language of section 11--20.1A indicates that theforfeiture procedures therein relate to property associated withthe business of child pornography. By enacting Public Acts 84--1280 and 85--1194, the legislature clearly intended to deterperpetrators of certain sexual offenses against children byconfiscating profits derived from exploiting them. Further, thelegislature twice amended section 11--20.1 without excising thereference to article 36 procedures in subsection 11--20.1(e). Inso doing, the legislature could not have intended that theprocedures applicable to forfeitures of personal pornographymaterial, equipment and reproductions (subsection 11--20.1(e))would merely duplicate or "overlap" forfeiture proceedings forthe type of property covered by section 11--20.1A. Thus,construing both provisions together, we conclude that thelegislature intended that article 36 forfeiture procedures shouldapply to the camera and computer at issue in this case.

Having determined that article 36 controls, we next considerthe State's argument that the proceedings in the trial courtsatisfied statutory requirements. In this regard, we are mindfulof the general rule that forfeitures are not favored and the lawmust be narrowly interpreted to avoid injustice. People v.DeLuca, 302 Ill. App. 3d 454, 706 N.E.2d 927 (1998).

As indicated above, section 36--1 incorporates by referencethe forfeiture procedures set forth in section 36--2. Section36--2 provides that the State's Attorney must file a complaint inthe circuit court, give notice to the owner of the property, andestablish at a hearing that the property was used in thecommission of an offense covered by article 36. Further, at thehearing, the defendant or any other party with an interest in theproperty may assert an innocent owner claim. 720 ILCS 5/36--2(a)(West 1996). Although reference is made in section 36--1 to"registered" owners, such reference does not absolve the Statefrom giving notice of forfeiture proceedings to owners of other,non-registered property when article 36 is applied to forfeituresof child pornography equipment.

In this case, the proceedings did not comply with article 36requirements because no forfeiture complaint was filed and noforfeiture hearing was held. In fact, the State's first mentionof forfeiture did not come until the prosecutor's sentencingrecommendation.

Moreover, the record gives no assurance that no injusticeresulted. At least with respect to the unnamed co-ownermentioned by defense counsel in her objection to the forfeitureorder, the State's failure to comply with the statutory noticeand hearing requirements deprived a possible claimant of ameaningful opportunity to be heard. Any "innocent owner" claimthat might have been made under section 36--2(a) was foreclosedby the improper proceedings. Accordingly, the order offorfeiture must be vacated. See 1991 Dodge Ram Charger, 250 Ill.App. 3d 810, 620 N.E.2d 448.

For the reasons stated, the judgment of the circuit court ofKankakee County is affirmed in part and vacated in part.

Affirmed in part; vacated in part.

HOMER, P.J., and SLATER, J., concur.