People v. Revell

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People v. Revell

State: Illinois

Court: 4th District Appellate

Docket No: 4-04-0835, 4-04-0854 Cons. Rel

Case Date: 04/18/2007

Preview:NOS. 4-04-0835, 4-04-0854 cons. IN THE APPELLATE COURT OF ILLINOIS FOURTH DISTRICT THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID D. REVELL, Defendant-Appellant. ) ) ) ) ) ) ) ) )

Filed 4/18/07

Appeal from Circuit Court of Champaign County Nos. 03CF654 03CF2156 Honorable Thomas J. Difanis, Judge Presiding.

JUSTICE MYERSCOUGH delivered the opinion of the court: In April and May 2004, defendant, David D. Revell, pleaded guilty to possession of child pornography (720 ILCS 5/1120.1(a)(6) (West 2002)) and predatory criminal sexual assault of a child (720 ILCS 5/12-14.1(a)(1) (West 2002)) in two separate cases. Following a consolidated sentencing hearing, the trial

court sentenced defendant to 5 years' imprisonment for possession of child pornography to run consecutive to a 40-year prison term for predatory criminal sexual assault of a child. awarded defendant 463 days of sentence credit. Defendant appealed, arguing (1) the penalty for subsection (a)(1) of the predatory-criminal-sexual-assault-of-a-child statute (720 ILCS 5/12-14.1(a)(1) (West 2002)) violates the proportionate-penalties and due-process clauses of the Illinois Constitution and (2) he is entitled to 15 additional days of The court

sentence credit. tions.

We affirm as modified and remand with direc-

I. BACKGROUND This case involves consolidated appeals of Champaign County case Nos. 03-CF-654 and 03-CF-2156. However, the

sentence-credit issue also requires an examination of Champaign County case No. 03-CF-580, and defendant has provided the record of that case on appeal. On April 2, 2003, defendant was arrested for aggravated criminal sexual abuse (720 ILCS 5/12-16(c)(1) (West 2002)) in Champaign County case No. 03-CF-580. released on his own recognizance. On April 3, 2003, he was

The indictment alleged that

from August 2, 2002, until April 3, 2003, defendant committed acts of sexual conduct with a seven-year-old female by rubbing her vaginal area through her clothes with his hands. On April 11, 2003, defendant was arrested for child pornography in Champaign County case No. 03-CF-654. The indict-

ment alleged that on April 11, 2003, defendant knowingly possessed a photograph of a female child engaging in sexual penetration with an adult male and that defendant reasonably should have known the female was under the age of 18. In November 2003, defendant pleaded guilty in case No. 03-CF-580. - 2 -

On December 15, 2003, the State charged defendant by information with two counts of predatory criminal sexual assault of a child (720 ILCS 5/12-14.1(a)(1) (West 2002)) and four counts of criminal sexual assault (720 ILCS 5/12-13(a)(1) (West 2002)) in case No. 03-CF-2156. On December 29, 2003, defendant moved to

withdraw his guilty plea in case No. 03-CF-580 on the basis that new charges were filed against him that deprived him of any benefit he could receive from pleading guilty. On January 7,

2004, the trial court allowed defendant to withdraw his guilty plea. In January 2004, the grand jury indicted defendant on two counts of predatory criminal sexual assault of a child (720 ILCS 5/12-14.1(a)(1) (West 2002)), four counts of criminal sexual assault (720 ILCS 5/12-13(a)(1) (West 2002)), and two counts of child pornography (720 ILCS 5/11-20.1(a)(1)(ii) (West 2002)) in case No. 03-CF-2156. As is relevant to this appeal, count I,

charging defendant with predatory criminal sexual assault, alleged that from June 2002 until March 31, 2003, defendant, a person 17 years of age or older, committed an act of sexual penetration on a person under 13 years of age by placing his sex organ in the victim's sex organ. The same victim was involved in

case No. 03-CF-580 and case No. 03-CF-2156. In April 2004, defendant entered an open plea to the possession-of-child-pornography charge in case No. 03-CF-654. - 3 -

Before accepting the plea, the trial court informed defendant that the offense was a Class 3 felony punishable by not less than two nor more than five years' imprisonment. After admonishments,

confirming the voluntariness of the plea, and hearing a factual basis, the court accepted defendant's plea. In May 2004, defendant pleaded guilty to count I, predatory criminal sexual assault, in case No. 03-CF-2156. The

State informed the trial court that in exchange for defendant's plea of guilty to count I, the State would dismiss the remaining counts and also dismiss case No. 03-CF-580. The State also

agreed to limit its recommendation at the sentencing hearing to a term of 50 years' imprisonment in case No. 03-CF-2156. Before accepting the plea, the trial court informed defendant that the offense was a Class X felony with a minimum sentence of 6 years and a maximum sentence of 60 years in prison. The court also reminded defendant that he had already pleaded guilty to possession of child pornography, a Class 3 felony, carrying a sentence of two to five years' imprisonment. The

State informed the court of its belief that the child-pornography sentence would have to be served consecutively to the predatorycriminal-sexual-assault sentence. After giving defendant his

admonishments, confirming the voluntariness of the plea, and hearing a factual basis, the court accepted the plea. The trial court consolidated case Nos. 03-CF-654 and - 4 -

03-CF-2156 for sentencing and postsentencing.

At the July 2004

sentencing hearing, the court sentenced defendant to 5 years' imprisonment for possession of child pornography to run consecutively to a 40-year prison term for predatory criminal sexual assault. The court awarded defendant 463 days of sentence credit The

for the period of April 11, 2003, through July 29, 2004. court applied all of defendant's sentence credit to the

predatory-criminal-sexual-assault conviction and none to the possession-of-child-pornography conviction. In September 2004,

defendant filed, and the trial court denied, motions to withdraw the guilty pleas and motions to reconsider the sentences. This appeal followed. II. ANALYSIS A. Extended-Term Sentencing Defendant argues the penalty for a violation of section 12-14.1(a)(1) of the Criminal Code of 1961 (Criminal Code) violates the proportionate-penalties and due-process clauses of the Illinois Constitution. Specifically, defendant claims that

the offense for which he was convicted, predatory criminal sexual assault of a child (720 ILCS 5/12-14.1(a)(1) (West 2002)), carries a harsher penalty than the more serious crimes of predatory criminal sexual assault of a child while armed with a firearm (720 ILCS 5/12-14.1(a)(1.1) (West 2002)) and predatory criminal sexual assault of a child involving the discharge of a - 5 -

firearm (720 ILCS 5/12-14.1(a)(1.2) (West 2002)). Defendant acknowledges that this court, in People v. Dunn, 365 Ill. App. 3d 292, 296-97, 849 N.E.2d 148, 151 (2006), rejected the same proportionate-penalties argument but asks this court to overrule Dunn. Defendant alternatively asks this court

to find that the statute violates the due-process clause of the Illinois Constitution (Ill. Const. 1970, art. I,

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