                                  Illinois Official Reports

                                          Appellate Court



                             People v. Gillespie, 2014 IL App (4th) 121146



Appellate Court              THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                      DARREN GILLESPIE, Defendant-Appellant.


District & No.               Fourth District
                             Docket No. 4-12-1146


Filed                        December 22, 2014


Held                         Where defendant was initially charged with robbery and aggravated
(Note: This syllabus         criminal sexual assault arising from an incident in which he robbed
constitutes no part of the   and assaulted a woman and he was sentenced to consecutive terms for
opinion of the court but     robbery and aggravated criminal sexual assault, but the robbery
has been prepared by the     conviction was based on the same robbery used as the predicate
Reporter of Decisions        offense for the conviction for aggravated criminal sexual assault, the
for the convenience of       appellate court held that defendant’s robbery conviction violated the
the reader.)                 one-act, one-crime rule and the robbery conviction was vacated and
                             the cause was remanded for an amended sentencing judgment;
                             furthermore, the appellate court rejected defendant’s contentions that
                             the automatic-transfer statute that required him to be tried as an adult
                             violated the due process clause, the eighth amendment, and the
                             proportionate penalties clause of the Illinois Constitution.



Decision Under               Appeal from the Circuit Court of Champaign County, No.
Review                       11-CF-1813; the Hon. Heidi N. Ladd, Judge, presiding.




Judgment                     Affirmed in part and vacated in part; cause remanded with directions.
     Counsel on                Michael J. Pelletier, Jacqueline L. Bullard, and Martin J. Ryan
     Appeal                    (argued), all of State Appellate Defender’s Office, of Springfield, for
                               appellant.

                               Julia Rietz, State’s Attorney, of Urbana (Patrick Delfino, David J.
                               Robinson, and Aimee Sipes Johnson (argued), all of State’s Attorneys
                               Appellate Prosecutor’s Office, of counsel), for the People.



     Panel                     JUSTICE TURNER delivered the judgment of the court, with opinion.
                               Presiding Justice Pope and Justice Knecht concurred in the judgment
                               and opinion.




                                                OPINION

¶1         In November 2011, the State charged defendant, Darren Gillespie, by information with one
       count of robbery (720 ILCS 5/18-1(a) (West 2010)) and two counts of aggravated criminal
       sexual assault (720 ILCS 5/12-14(a)(3), (a)(4) (West 2010) (text of section effective until July
       1, 2011)). After a November 2012 trial, a jury found defendant guilty of both offenses. That
       same month, defendant filed a posttrial motion. In December 2012, the court denied
       defendant’s posttrial motion and sentenced him to consecutive prison terms of 5 years for
       robbery and 22 years for aggravated criminal sexual assault.
¶2         Defendant appeals, arguing (1) his robbery conviction must be vacated as a lesser-included
       offense of aggravated criminal sexual assault and (2) the automatic-transfer statute (705 ILCS
       405/5-130 (West 2010) (text of section effective until July 1, 2011)) that required him to be
       tried as an adult in this case violates the eighth amendment of the United States Constitution
       (U.S. Const., amend. VIII), the proportionate-penalties clause of the Illinois Constitution (Ill.
       Const. 1970, art. I, § 11), and due process (U.S. Const., amend. V; Ill. Const. 1970, art. I, § 2).
       We affirm in part, vacate in part, and remand the cause with directions.

¶3                                          I. BACKGROUND
¶4         The State’s original information charged defendant with robbery, in that he “knowingly
       took property, namely $74.00 and a pink cell phone, from the person of [R.C.] by threatening
       the imminent use of force.” The aggravated-criminal-sexual-assault charge under section
       12-14(a)(3) of the Criminal Code of 1961 (Criminal Code) (720 ILCS 5/12-14(a)(3) (West
       2010) (text of section effective until July 1, 2011)) alleged defendant by the threat of force
       inserted his penis into R.C.’s vagina and in so doing threatened R.C.’s life by saying “ ‘be quiet
       or I’ll kill you.’ ” The aggravated-criminal-sexual-assault charge under section 12-14(a)(4) of
       the Criminal Code (720 ILCS 5/12-14(a)(4) (West 2010) (text of section effective until July 1,
       2011)) asserted that, during the commission of a felony, namely kidnapping, defendant
       committed a criminal sexual assault against R.C., in that by the threat of force defendant


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       inserted his penis into her vagina. All three charges were alleged to have occurred on January
       11, 2011. Defendant was born in July 1994 and thus was 16 years old at the time of the
       offenses.
¶5         At the beginning of the November 2012 trial, the State moved to dismiss the
       aggravated-criminal-sexual-assault charge under section 12-14(a)(3) and amend the other two
       charges. The trial court granted the State’s motion. The robbery charged then alleged
       “defendant knowingly took property, namely United States Currency and a cell phone, from
       the person of [R.C.] by threatening the imminent use of force.” The
       aggravated-criminal-sexual-assault charge under section 12-14(a)(4) of the Criminal Code
       (720 ILCS 5/12-14(a)(4) (West 2010) (text of section effective until July 1, 2011)) then
       asserted “defendant, during the commission of a felony, namely robbery, committed a criminal
       sexual assault *** against [R.C.], in that by the threat of force the defendant inserted his penis
       into her vagina.”
¶6         During defendant’s trial, R.C. testified that, over her lunch break at work, she went to an
       apartment to buy a prescription pill and was robbed of her cellular telephone and money by
       defendant and two other individuals. After R.C. emptied her pockets, defendant asked the two
       other individuals to leave and ordered R.C. upstairs. Once upstairs, defendant directed R.C. to
       the bathroom and demanded that she pull down her pants. At one point, he told her to be quiet
       or he would kill her. Defendant bent R.C. over a box and penetrated her vagina with his penis.
       Defendant withdrew and ejaculated on R.C.’s buttocks. Defendant left, and R.C. ran out of the
       apartment. After telling her employer she would not return to work, she went to the hospital,
       where a rape kit was completed. The Illinois State Police forensic laboratory report found
       defendant’s deoxyribonucleic acid (DNA) matched the DNA on swabs from R.C.’s rectum.
       Defendant testified and admitted robbing R.C. However, he denied he sexually assaulted her
       and testified he and R.C. had consensual sex the night before at a party. R.C. denied being at a
       party the night before the attack.
¶7         At the conclusion of the trial, the jury found defendant guilty of both robbery and
       aggravated criminal sexual assault. On November 20, 2012, defendant filed a posttrial motion,
       raising numerous issues, none of which he raises on appeal. At a joint December 17, 2012,
       hearing, the trial court denied defendant’s posttrial motion and sentenced him to consecutive
       prison terms of 5 years for robbery and 22 years for aggravated criminal sexual assault. On
       December 19, 2012, defendant filed a timely notice of appeal in compliance with Illinois
       Supreme Court Rule 606 (eff. Mar. 20, 2009). Thus, this court has jurisdiction of this appeal
       under Illinois Supreme Court Rule 603 (eff. Oct. 1, 2010).

¶8                                             II. ANALYSIS
¶9                                       A. Lesser-Included Offense
¶ 10       Defendant first asserts his robbery conviction must be vacated because, in his case, it is a
       lesser-included offense of aggravated criminal sexual assault since the robbery was the
       aggravating element. In other words, he contends his robbery conviction violates the one-act,
       one-crime rule established by our supreme court in People v. King, 66 Ill. 2d 551, 363 N.E.2d
       838 (1977). The State disagrees with defendant’s assertion. Moreover, both parties note
       defendant did not preserve this issue for appeal but agree we should review it under the
       plain-error doctrine (Ill. S. Ct. R. 615(a) (eff. Jan. 1, 1967)) because a violation of the one-act,
       one-crime rule satisfies the second prong of that doctrine (see People v. Harvey, 211 Ill. 2d

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       368, 389, 813 N.E.2d 181, 194 (2004)). Accordingly, we review the merits of defendant’s
       argument. The application of the one-act, one-crime rule presents a question of law, which this
       court reviews de novo. People v. Johnson, 237 Ill. 2d 81, 97, 927 N.E.2d 1179, 1189 (2010).
¶ 11        In King, 66 Ill. 2d at 566, 363 N.E.2d at 845, our supreme court held “that when more than
       one offense arises from a series of incidental or closely related acts and the offenses are not, by
       definition, lesser included offenses, convictions with concurrent sentences can be entered.”
       Since King, the supreme court has explained the one-act, one-crime doctrine involves a
       two-step analysis. People v. Miller, 238 Ill. 2d 161, 165, 938 N.E.2d 498, 501 (2010). The
       analysis is as follows:
                “First, the court must determine whether the defendant’s conduct involved multiple
                acts or a single act. Multiple convictions are improper if they are based on precisely the
                same physical act. Second, if the conduct involved multiple acts, the court must
                determine whether any of the offenses are lesser-included offenses. If an offense is a
                lesser-included offense, multiple convictions are improper.” Miller, 238 Ill. 2d at 165,
                938 N.E.2d at 501.
¶ 12        At issue in this case is the second step of the analysis. In Miller, 238 Ill. 2d at 166, 938
       N.E.2d at 501-02, our supreme court “identified three possible methods for determining
       whether a certain offense is a lesser-included offense of another: (1) the abstract elements
       approach; (2) the charging instrument approach; and (3) the factual or evidence adduced at trial
       approach.” (Internal quotation marks omitted.) After a lengthy analysis, the Miller court
       concluded the abstract elements approach was the proper approach “to determine whether one
       charged offense is a lesser-included offense of another under King.” Miller, 238 Ill. 2d at 176,
       938 N.E.2d at 507. “Under the abstract elements approach, a comparison is made of the
       statutory elements of the two offenses. If all of the elements of one offense are included within
       a second offense and the first offense contains no element not included in the second offense,
       the first offense is deemed a lesser-included offense of the second.” Miller, 238 Ill. 2d at 166,
       938 N.E.2d at 502. In other words, under this approach, “it must be impossible to commit the
       greater offense without necessarily committing the lesser offense.” Miller, 238 Ill. 2d at 166,
       938 N.E.2d at 502. Additionally, “[t]he abstract elements approach does not look to the facts of
       a crime as either charged in the particular charging instrument or proved at trial.” People v.
       Novak, 163 Ill. 2d 93, 106, 643 N.E.2d 762, 769 (1994). The Miller court described the abstract
       elements approach as the most clearly stated and the easiest to apply but noted “it is the
       strictest approach in the sense that it is formulaic and rigid, and considers ‘solely theoretical or
       practical impossibility.’ ” Miller, 238 Ill. 2d at 166, 938 N.E.2d at 502 (quoting Novak, 163 Ill.
       2d at 106, 643 N.E.2d at 769).
¶ 13        Here, defendant was convicted of aggravated criminal sexual assault under section
       12-14(a)(4) of the Criminal Code (720 ILCS 5/12-14(a)(4) (West 2010) (text of section
       effective until July 1, 2011)). That section provides a person commits aggravated criminal
       sexual assault if he “commits criminal sexual assault” and the offense was “perpetrated during
       the course of the commission or attempted commission of any other felony by the accused.”
       720 ILCS 5/12-14(a)(4) (West 2010) (text of section effective until July 1, 2011). Thus, the
       elements of aggravated sexual assault under section 12-14(a)(4) are (1) sexual penetration, (2)
       use of force or threat of force, and (3) it was perpetrated during the commission of another
       felony or attempted commission. See People v. Hawkins, 409 Ill. App. 3d 564, 570, 948
       N.E.2d 676, 682 (2011).

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¶ 14        Our supreme court has long held the predicate offense for another crime is a
       lesser-included offense of the other crime. As defendant notes, in People v. Smith, 183 Ill. 2d
       425, 432, 701 N.E.2d 1097, 1100 (1998) (Smith I), the supreme court stated the predicate
       offense underlying felony murder is a lesser-included offense of felony murder and cannot
       support a separate conviction and sentence. See also People v. Smith, 233 Ill. 2d 1, 17, 906
       N.E.2d 529, 538 (2009) (citing, with approval, the aforementioned holding in Smith I). In
       support of that statement, the Smith court cited its prior felony-murder decision in People v.
       Coady, 156 Ill. 2d 531, 537, 622 N.E.2d 798, 801 (1993), which had cited People v.
       Donaldson, 91 Ill. 2d 164, 170, 435 N.E.2d 477, 479-80 (1982), and People v. Johnson, 167 Ill.
       App. 3d 659, 669-70, 521 N.E.2d 609, 615-16 (1988). In Johnson, 167 Ill. App. 3d at 669-70,
       521 N.E.2d at 615-16, this court accepted the State’s concession the defendant’s
       armed-robbery conviction should be vacated as a lesser included offense of felony murder. In
       Donaldson, 91 Ill. 2d at 170, 435 N.E.2d at 479-80, our supreme court held convictions for
       both armed violence and the underlying felony could not stand. The Donaldson court gave the
       following explanation:
                “The underlying felony charge here, aggravated battery causing great bodily harm,
                does not require proof of a fact in addition to those required to prove the offense of
                armed violence based on the underlying felony of aggravated battery causing great
                bodily harm. One cannot violate the armed violence statute without first committing a
                felony. The alleging of that felony in the armed violence charge has the effect, upon
                conviction, of making it a necessarily included offense.” Donaldson, 91 Ill. 2d at 170,
                435 N.E.2d at 479.
¶ 15        In support of its argument that robbery is not a lesser-included offense of aggravated
       criminal sexual assault under section 12-14(a)(4), the State cites the Second District’s People
       v. Bouchee, 2011 IL App (2d) 090542, ¶ 10, 962 N.E.2d 15, which held that, under the abstract
       elements approach, criminal sexual assault was not a lesser-included offense of home invasion.
       See also People v. Fuller, 2013 IL App (3d) 110391, ¶¶ 21-23, 990 N.E.2d 882 (following
       Bouchee). Bouchee and Fuller are the only cases the State cites for its assertion convictions can
       stand for both an offense and its underlying predicate offense. We are unaware of any other
       Illinois cases so holding. Citing a different subsection of the home-invasion statute than the
       one under which the defendant was convicted, the Bouchee court noted it was possible to
       commit home invasion without necessarily committing criminal sexual assault. Bouchee, 2011
       IL App (2d) 090542, ¶ 10, 962 N.E.2d 15 (“a person can commit home invasion by entering
       and then ‘[p]ersonally discharg[ing] a firearm that proximately causes,’ inter alia, a death”
       (quoting 720 ILCS 5/12-11(a)(5) (West 2006))). It further found that, even considering the
       statutory subsection under which the defendant was charged, it was possible to commit home
       invasion without necessarily committing criminal sexual assault. Bouchee, 2011 IL App (2d)
       090542, ¶ 10, 962 N.E.2d 15 (a person can commit home invasion by entering and then
       committing criminal sexual abuse (citing 720 ILCS 5/12-11(a)(6) (West 2006))). In response
       to the defendant’s assertion “the indictment ‘specifically charge[d]’ that he committed home
       invasion by entering and then committing criminal sexual assault, it was impossible for him to
       commit home invasion, ‘[a]s charged,’ without committing the criminal sexual assault,” the
       Second District found the defendant was merely reverting to the charging-instrument
       approach. Bouchee, 2011 IL App (2d) 090542, ¶ 11, 962 N.E.2d 15.



                                                   -5-
¶ 16        The Second District did address the Smith I holding the predicate felony of felony murder
       is a lesser-included offense of felony murder. It found felony murder was not analogous to
       subsection (a)(6) of the home-invasion statute. Bouchee, 2011 IL App (2d) 090542, ¶ 12, 962
       N.E.2d 15. In explaining the abstract elements test, it noted the following:
                “ ‘The assumption underlying the rule is that Congress ordinarily does not intend to
                punish the same offense under two different statutes. Accordingly, where two statutory
                provisions proscribe the “same offense,” they are construed not to authorize cumulative
                punishments in the absence of a clear indication of contrary legislative intent.’
                (Emphases added.)” Bouchee, 2011 IL App (2d) 090542, ¶ 13, 962 N.E.2d 15 (quoting
                Whalen v. United States, 445 U.S. 684, 691-92 (1980)).
       Thus, the Bouchee court concluded “a predicate of felony murder is ‘a species of
       lesser-included offense’ ([Illinois v.] Vitale, 447 U.S. [410,] 420 [(1980)]) only because that
       classification is deemed to comport with legislative intent. See Whalen, 445 U.S. at 694 n.8
       (‘We have simply concluded that, [under the relevant statute], Congress intended rape to be
       considered a lesser offense included within the offense of a killing in the course of rape.’).”
       Bouchee, 2011 IL App (2d) 090542, ¶ 13, 962 N.E.2d 15. It found that, with felony murder, the
       felony supplies the mental state for first degree murder, and thus the legislature did not intend
       to allow convictions of both the murder and the felony. Bouchee, 2011 IL App (2d) 090542,
       ¶ 14, 962 N.E.2d 15. However, with home invasion under subsection (a)(6), the unauthorized
       entry is the most serious part of the offense and it is complete before the commission of the
       criminal sexual assault, which has its own elements and mental state. Bouchee, 2011 IL App
       (2d) 090542, ¶ 15, 962 N.E.2d 15.
¶ 17        Additionally, the Bouchee court noted a predicate offense under subsection (a)(6) of the
       home-invasion statute is not necessarily lesser than home invasion and notes that, in some
       cases, criminal sexual assault has a greater sentencing range. Bouchee, 2011 IL App (2d)
       090542, ¶ 16, 962 N.E.2d 15. Last, the Second District found it would be “absurd and unjust”
       to not impose separate punishment for a more serious sex offense committed after the
       unauthorized entry where “the legislature has insisted that sex offenses be punished not only
       separately, but consecutively.” Bouchee, 2011 IL App (2d) 090542, ¶ 18, 962 N.E.2d 15
       (citing 730 ILCS 5/5-8-4(a)(i), (a)(ii) (West 2006)).
¶ 18        Since the main offense in this case is a sex offense, not the predicate, we find a large part of
       the reasoning in Bouchee is inapplicable here, including its finding not having convictions for
       both the underlying sex offense and home invasion contravenes legislative intent. In this case,
       the Class 2 felony of robbery (720 ILCS 5/18-1(b) (West 2010)), which carries a sentence of 3
       to 7 years in prison (730 ILCS 5/5-4.5-35(a) (West 2010)), is clearly a less serious offense than
       the Class X felony of aggravated criminal sexual assault (720 ILCS 5/12-14(d)(1) (West 2010)
       (text of section effective until July 1, 2011)), which has a possible sentence of 6 to 30 years in
       prison (730 ILCS 5/5-4.5-25(a) (West 2010)). Even if we consider the robbery statute as a
       whole, robbery is still a lesser felony than aggravated criminal sexual assault. See 720 ILCS
       5/18-1(b) (West 2010) (under some circumstances, robbery is a Class 1 felony).
¶ 19        In further distinguishing Bouchee, an examination of the United States Supreme Court’s
       decision in Whalen, which was cited in Bouchee, is warranted. The Whalen Court addressed
       the rule set forth in Blockburger v. United States, 284 U.S. 299, 304 (1932), which provides
       “ ‘where the same act or transaction constitutes a violation of two distinct statutory provisions,
       the test to be applied to determine whether there are two offenses or only one, is whether each

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       provision requires proof of a fact which the other does not.’ ” Whalen, 445 U.S. at 692 (quoting
       Blockburger, 284 U.S. at 304). The rule is used to determine whether double jeopardy barred
       additional punishment and successive prosecution. Blockburger, 284 U.S. at 304. It has also
       been used to determine whether Congress has provided two statutory offenses may be
       punished cumulatively. Whalen, 445 U.S. at 691. We note the same elements test is just
       another name for the Blockburger rule. See People v. Dunnavan, 381 Ill. App. 3d 514, 518,
       886 N.E.2d 393, 397 (2008). In Miller, 238 Ill. 2d at 174-75, 938 N.E.2d at 506, our supreme
       court noted that, in determining whether an offense is a lesser-included offense for double
       jeopardy purposes, the United States Supreme Court employs the same elements test, which is
       the equivalent of the abstract elements test. Thus, the case law for the same elements test is
       instructive in applying the abstract elements test.
¶ 20        Applying the Blockburger rule to a consecutive sentencing issue, the Whalen Court found
       “Congress did not authorize consecutive sentences for rape and for a killing committed in the
       course of the rape” because it is not the case where “ ‘each provision requires proof of a fact
       which the other does not.’ ” Whalen, 445 U.S. at 693 (quoting Blockburger, 284 U.S. at 304).
       “A conviction for killing in the course of a rape cannot be had without proving all the elements
       of the offense of rape.” Whalen, 445 U.S. at 693-94. Further, the Whalen Court rejected the
       government’s argument felony murder and rape were not the same offense under Blockburger
       because felony murder does not in all cases require proof of a rape. Whalen, 445 U.S. at 694.
       The Whalen Court noted that, “[i]n the present case *** proof of rape is a necessary element of
       proof of the felony murder, and we are unpersuaded that this case should be treated differently
       from other cases in which one criminal offense requires proof of every element of another
       offense.” Whalen, 445 U.S. at 694.
¶ 21        However, as the Bouchee court notes, the Blockburger rule only applies “ ‘in the absence
       of a clear indication of contrary legislative intent.’ ” (Emphasis omitted.) Bouchee, 2011 IL
       App (2d) 090542, ¶ 13, 962 N.E.2d 15 (quoting Whalen, 445 U.S. at 692). In distinguishing
       felony murder, the Bouchee court found a clear legislative intent existed for convictions for
       both home invasion and criminal sexual assault. In this case, we do not find a clear legislative
       intent. First, we note the fact the predicate offense supplies the mental state for felony murder
       adds nothing to the analysis of whether a clear contrary legislative intent exists with the
       offenses at issue. Second, as explained previously, robbery is a “lesser” offense than
       aggravated criminal sexual assault, and thus the absurdity and injustice concerns raised in
       Bouchee are not present here. Last, the existence of separate criminal purposes alone does not
       rise to the level of a clear indication of legislative intent to provide separate convictions. Since
       we do not find a clear indication the legislature intended multiple convictions with the offenses
       at issue in this case, felony murder is analogous to the offenses here.
¶ 22        Moreover, we disagree with Bouchee’s examination of all subsections of a statute in
       applying the abstract elements approach. While the Miller court applied the abstract elements
       approach, it still examined the elements of the specific subsection of the statute charged by the
       State and not other subsections. See Miller, 238 Ill. 2d at 176, 938 N.E.2d at 507 (analyzing
       only subsection (a) of the retail-theft statute and not the other subsections). The Miller court
       did not suggest it was impermissible to look to the charging instruments to determine the
       specific statutory subsections to be used for comparison under the abstract elements approach.
       We note this court also has examined the specific subsections when analyzing convictions
       under the abstract elements approach. See People v. Stull, 2014 IL App (4th) 120704, ¶¶ 58-59,


                                                    -7-
       64, 5 N.E.3d 328. Further, the Whalen Court rejected the argument of looking to other ways in
       which the crimes could be committed beyond the form in which they were charged. Whalen,
       445 U.S. at 694. Moreover, in applying the same elements test, our supreme court has
       compared only the specific subsections of the offenses for which the defendant was charged
       and convicted. See People v. Gray, 214 Ill. 2d 1, 7-8, 823 N.E.2d 555, 558-59 (2005).
¶ 23        We now apply the abstract elements approach to the offenses at issue in this case. As
       stated, the elements of aggravated criminal sexual assault under section 12-14(a)(4) are (1)
       sexual penetration, (2) use of force or threat of force, and (3) it was perpetrated during the
       commission of another felony or attempted commission. See Hawkins, 409 Ill. App. 3d at 570,
       948 N.E.2d at 682. The commission of another felony or attempted commission is an element
       of aggravated criminal sexual assault under section 12-14(a)(4), and thus one cannot commit
       aggravated criminal sexual assault under section 12-14(a)(4) without also committing or
       attempting to commit another felony. Any predicate felony or attempt felony charge does not
       require proof of an element in addition to those required to prove aggravated criminal sexual
       assault under section 12-14(a)(4) based on the underlying felony or attempt felony. Therefore,
       it is impossible to commit aggravated criminal sexual assault without necessarily committing
       the predicate felony or attempt felony, and thus the abstract elements approach is satisfied.
¶ 24        Our conclusion is consistent with the Miller court’s statement that “allowing convictions
       on both charged offenses, under the abstract elements test, will ensure that defendants are held
       accountable for the full measure of their conduct and harm caused.” Miller, 238 Ill. 2d at 173,
       938 N.E.2d at 506. With section 12-14(a)(4), the underlying felony elevates the offense of
       criminal sexual assault, a Class 1 felony with a sentence range of 4 to 15 years in prison (720
       ILCS 5/12-13(b)(1) (West 2010) (text of section effective until July 1, 2011); 730 ILCS
       5/5-4.5-30(a) (West 2010)), to an aggravated criminal sexual assault, a Class X felony with a
       sentencing range of 6 to 30 years in prison (720 ILCS 5/12-14(d)(1) (West 2010) (text of
       section effective until July 1, 2011); 730 ILCS 5/5-4.5-25(a) (West 2010)). Thus, with a
       conviction under section 12-14(a)(4), the defendant is held accountable and punished for both
       the underlying felony and the criminal sexual assault. To hold otherwise and allow two
       separate convictions to stand for both the underlying felony and the aggravated criminal sexual
       assault, the defendant would be punished twice for the underlying offense, once for the offense
       and once for aggravating the criminal sexual assault.
¶ 25        In this case, the record is clear defendant’s robbery conviction was for the same robbery
       that was the predicate offense of his aggravated-criminal-sexual-assault conviction.
       Accordingly, we find defendant’s robbery conviction violates the one-act, one-crime rule and
       thus vacate his conviction and sentence for that offense.

¶ 26                       B. Constitutionality of the Automatic-Transfer Statute
¶ 27        Defendant also challenges the constitutionality of the automatic-transfer provision (also
       known as the excluded-jurisdiction statute) of the Juvenile Court Act of 1987 (705 ILCS
       405/5-130 (West 2010) (text of section effective until July 1, 2011)) and the consequent
       automatic application of the full range of adult penalties. He argues the transfer and resulting
       sentencing possibilities violate the eighth amendment, the proportionate-penalties clause of the
       Illinois Constitution, and due process. Defendant recognizes he failed to raise this issue in the
       trial court but asserts the constitutionality of a statute may be raised at any time (see People v.
       Wagener, 196 Ill. 2d 269, 279, 752 N.E.2d 430, 438 (2001)). The State agrees defendant may

                                                    -8-
       raise the issue on this appeal. We concur and note the constitutionality of a statute presents a
       question of law, which we review de novo (People v. Melongo, 2014 IL 114852, ¶ 20, 6 N.E.3d
       120).
¶ 28       Defendant recognizes this court in People v. Pacheco, 2013 IL App (4th) 110409, 991
       N.E.2d 896, appeal allowed, No. 116402 (Ill. Sept. 25, 2013), rejected the constitutional
       challenges he now makes. See also People v. Croom, 2012 IL App (4th) 100932, 975 N.E.2d
       1107 (rejecting the due-process challenge to the automatic-transfer statute). However,
       defendant expressly raises his arguments to preserve their consideration should the Illinois
       Supreme Court overrule Pacheco, which is currently before that court. Since the parties filed
       their briefs, our supreme court addressed the same constitutional arguments defendant raises in
       a different case, People v. Patterson, 2014 IL 115102.
¶ 29       As to the due-process argument, the Patterson court noted it had first found the
       automatic-transfer provision did not violate due process in People v. J.S., 103 Ill. 2d 395, 469
       N.E.2d 1090 (1984), and later reached the same conclusion in People v. M.A., 124 Ill. 2d 135,
       529 N.E.2d 492 (1988). Patterson, 2014 IL 115102, ¶¶ 93, 95. After reviewing the United
       States Supreme Court’s more recent decisions in Roper v. Simmons, 543 U.S. 551 (2005),
       Graham v. Florida, 560 U.S. 48 (2010), and Miller v. Alabama, 567 U.S. ___, 132 S. Ct. 2455
       (2012), the Patterson court declined to reconsider its holding in J.S. Patterson, 2014 IL
       115102, ¶¶ 96-98. Thus, defendant’s due-process claim fails under Patterson.
¶ 30       Regarding the eighth-amendment and proportionate-penalties claims, the defendant in
       Patterson again raised the Roper, Graham, and Miller decisions. Patterson, 2014 IL 115102,
       ¶ 100. The Patterson court recognized the aforementioned cases’ discussion of young
       offenders but pointed out neither the eighth amendment nor the proportionate-penalties clause
       “applies unless a punishment or penalty has been imposed.” Patterson, 2014 IL 115102,
       ¶¶ 100-01. After considering the defendant’s arguments, the Patterson court declined to
       deviate from its long-held view the automatic-transfer provision is purely procedural and not
       punitive. Patterson, 2014 IL 115102, ¶¶ 102-05. Since the automatic-transfer provision did not
       impose actual punishment, the defendant’s eighth-amendment and proportionate-penalties
       challenges could not stand. Patterson, 2014 IL 115102, ¶ 106. Thus, in this case, defendant’s
       eighth-amendment and proportionate-penalties arguments cannot stand.
¶ 31       Accordingly, we reject defendant’s constitutional challenges to the automatic-transfer
       provision under both Patterson and Pacheco.

¶ 32                                       III. CONCLUSION
¶ 33       For the reasons stated, we vacate defendant’s robbery conviction and sentence, affirm the
       Champaign County circuit court’s judgment in all other respects, and remand the cause for an
       amended sentencing judgment consistent with this opinion. As part of our judgment, we grant
       the State’s request that defendant be assessed $75 as costs for this appeal.

¶ 34      Affirmed in part and vacated in part; cause remanded with directions.




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