                          NO. 4-07-0663

Filed 9/30/08        IN THE APPELLATE COURT

                           OF ILLINOIS

                         FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,   )   Appeal from
           Plaintiff-Appellee,         )   Circuit Court of
           v.                          )   Sangamon County
MICHAEL J. LEACH,                      )   No. 04CF881
           Defendant-Appellant.        )
                                       )   Honorable
                                       )   Leslie J. Graves,
                                       )   Judge Presiding.
______________________________________________________________

          JUSTICE TURNER delivered the opinion of the court:

          In March 2007, a jury convicted defendant, Michael J.

Leach, of eight counts of aggravated criminal sexual assault and

one count of aggravated robbery.   In May 2007, the trial court

sentenced him to consecutive terms of 16 years in prison on 4

aggravated-criminal-sexual-assault counts (6 years plus a 10-year

sentence enhancement on each count).   The court also sentenced

him to a consecutive six-year term for aggravated robbery.

          On appeal, defendant argues (1) the trial court's

imposition of the 10-year sentence enhancement deprived him of

due process and (2) he was denied the proper amount of credit for

time served in custody prior to sentencing.   We affirm as modi-

fied and remand with directions.

                          I. BACKGROUND

          In September 2004, the State charged defendant by

information with nine counts of aggravated criminal sexual
assault (720 ILCS 5/12-14(a)(1), (a)(4) (West 2004)) and one

count of aggravated robbery (720 ILCS 5/18-5(a) (West 2004))

involving the victim, D.S.    Defendant pleaded not guilty.

            In March 2007, defendant's jury trial commenced.    On

August 12, 2004, at approximately 8:30 a.m., D.S. heard the

doorbell ring.    D.S. was working from home that day and was still

in her nightgown.    D.S. was expecting a delivery, so she answered

the door to defendant, an easily identifiable man with two large

and elaborate tattoos on his forearms.      A couple of weeks ear-

lier, D.S. had purchased a garden pond at a yard sale from Sue

Bonansinga, who lived across the alley.      Defendant, Bonansinga's

son, had helped carry the pond to D.S.'s yard.      Defendant re-

turned to D.S.'s house on August 12, 2004, and told her he had

extra filters for the garden pond.      D.S. took the filters, and

defendant left.

            Fifteen minutes later, defendant unexpectedly returned

to D.S.'s doorstep.    Defendant told D.S. he had more supplies for

her pond.    D.S. thought the "supplies" looked like equipment from

a small aquarium but nevertheless took the items into the house

because she did not want to make defendant feel foolish or angry.

Defendant, who was still standing outside the house, then asked

D.S. if he could borrow her phone, claiming he had locked himself

out of his house.    D.S. handed defendant her phone through the

door.   Defendant pretended to make a phone call and then, upon


                                - 2 -
returning the phone to D.S., told her that he had really returned

to the house to rape her and forced himself through the door.

            Once in the house, a violent chase ensued, where D.S.

repeatedly screamed for help and threw items at the window hoping

to break the glass.    D.S. hoped that her neighbor, Graham

Murdock, who often worked outside doing yard work, would hear

her.    When defendant finally caught D.S., he told her to shut up

because he had a knife and a .22-caliber gun and he would stab or

shoot her if she did not cooperate.     D.S. was convinced that

defendant had a weapon and struggled frantically to get away, but

defendant put his hands on her neck and over her nose and mouth

so that D.S. could no longer scream or breath.     Defendant told

her if she did not stop screaming, he would kill her.     D.S. then

nodded, indicating she would cooperate if he would let her

breathe.

            D.S. then tried a different tack to escape the situa-

tion, attempting to manipulate defendant.     D.S. told defendant

that she had a high-risk pregnancy due to her age and various

medical conditions and that, if she had sex, she would lose the

baby.    D.S. tried to sound more believable by employing various

medical terms.    Alternatively, D.S. begged defendant not to kill

her baby.

            Defendant then violently forced oral sex on D.S.   D.S.

warned defendant that her father was planning to visit that day


                                - 3 -
and defendant should leave before he got caught.    Defendant

replied that he would kill D.S.'s father if he arrived.    Defen-

dant forced D.S., through several different struggles to both

give and receive oral sex.    D.S. managed to escape into the

bathroom, where she attempted to barricade the door with a

movable linen cabinet.    Defendant broke down the door, and D.S.

sustained cuts from the wood of the door splintering open on her.

Defendant dragged D.S. back to the bedroom and tore off her

nightgown.    Defendant again forced oral sex on D.S. and ejacu-

lated into her hair.

            Defendant then ordered D.S. to give him all her money.

D.S. gave defendant $35 in cash and offered him her credit card,

which he angrily declined.    Defendant then started searching

D.S.'s home for valuables and drinking alcohol that he found in

the home.    D.S. pretended to look for her dog, which defendant

had earlier thrown against the wall during one of the struggles,

and managed to escape out of the house.    D.S. ran out of the

house screaming rape.

            D.S.'s neighbor, Murdock, heard D.S. and came outside.

When D.S. saw Murdock, she ran toward him, but she was so hyster-

ical that she did not notice the retaining wall that separated

their properties and tripped over it, breaking her foot in

several places.    D.S. was terrified and disoriented.   Murdock was

able to calm her and call 9-1-1 on her behalf.    While Murdock was


                                - 4 -
calling 9-1-1, he and D.S. saw defendant exit D.S.'s house

barefoot, go into her garage, and drive away in her vehicle.

           The police arrived within minutes.   D.S. was taken to a

hospital, treated for her injuries, and given a sexual-assault

examination.   The semen in D.S.'s hair matched defendant's

deoxyribonucleic acid (DNA).   Additionally, an oral swab taken

from D.S. contained some of defendant's DNA.

           The police ultimately apprehended defendant later that

day when he crashed D.S.'s vehicle into a Chicago-area home.      In

his initial statement to police, defendant claimed he had taken

sleeping pills before the incident and could barely remember what

he had done.   He "remember[ed] something bad happening" and was

"sorry for whatever [he] did to the girl."    Detective Scott

Kincaid interviewed D.S. twice on the day of the incident.

Kincaid testified D.S. told him during both interviews that

defendant had claimed to have a knife and a gun, though he never

showed D.S. either of the weapons.

           Defendant exercised his constitutional right not to

testify.   See U.S. Const., amend. V.   Following closing argu-

ments, the jury found defendant guilty of eight counts of aggra-

vated criminal sexual assault and one count of aggravated rob-

bery.   The jury found defendant not guilty of one count of

aggravated criminal sexual assault.

           In April 2007, defendant filed a posttrial motion,


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which the trial court denied.     At the May 2007 sentencing hear-

ing, the court vacated four of the aggravated-criminal-sexual-

assault counts and sentenced defendant as stated.       In June 2007,

defendant filed a motion to reduce sentence, which the court

denied.   This appeal followed.

                              II. ANALYSIS

                    A. Constitutionality of Sentence

           Defendant argues the trial court's imposition of a 10-

year sentence enhancement for threatening the use of a dangerous

weapon deprived him of his right to due process where (1) that

sentence was disproportionate to the penalty for the offense of

aggravated criminal sexual assault while threatening the life of

the victim and (2) the enhancement was not reasonably related to

the goal of deterring the use of dangerous weapons.       We disagree.

                         1. Standard of Review

           "The constitutionality of a statute is purely

           a matter of law, and accordingly we review

           the circuit court's conclusion de novo.

           [Citation.]    All statutes carry a strong

           presumption of constitutionality.     [Cita-

           tion.]    To overcome this presumption, the

           party challenging the statute must clearly

           establish that it violates the constitution.

           [Citation.]    We generally defer to the


                                  - 6 -
          legislature in the sentencing arena because

          the legislature is institutionally better

          equipped to gauge the seriousness of various

          offenses and to fashion sentences accord-

          ingly.   [Citation.]   The legislature's dis-

          cretion in setting criminal penalties is

          broad, and courts generally decline to over-

          rule legislative determinations in this area

          unless the challenged penalty is clearly in

          excess of the general constitutional limita-

          tions on this authority."      People v. Sharpe,

          216 Ill. 2d 481, 486-87, 839 N.E.2d 492, 497-

          98 (2005).

              2. The Proportionate-Penalties Clause

          Under the proportionate-penalties clause of the Illi-

nois Constitution, "[a]ll penalties shall be determined both

according to the seriousness of the offense and with the objec-

tive of restoring the offender to useful citizenship."       Ill.

Const. 1970, art. I, §11.   To succeed on a proportionate-penal-

ties claim, a "defendant must show that either the penalty

imposed (1) is cruel, degrading, or so wholly disproportionate to

the offense that it shocks the moral sense of the community (the

cruel or degrading test) or (2) differs from one imposed for an

offense containing the same elements."      People v. Brown, 375 Ill.


                                 - 7 -
App. 3d 1116, 1118, 874 N.E.2d 607, 609 (2007).

            In this case, defendant was convicted of four counts of

aggravated criminal sexual assault under section 12-14(a)(1) of

the Criminal Code of 1961, which requires proof of the following

elements:    (1) commission of criminal sexual assault and (2) the

display, threatened use, or use of a dangerous weapon (other than

a firearm).    720 ILCS 5/12-14(a)(1) (West 2004).   A violation of

section 12-14(a)(1) is a Class X felony for which 10 years shall

be added to the prison term.    720 ILCS 5/12-14(d)(1) (West 2004).

            Defendant argues the offense of aggravated criminal

sexual assault under section 12-14(a)(1) violates the proportion-

ate-penalties clause because it is identical to the offense set

forth in section 12-14(a)(3) but with a harsher penalty.    Section

12-14(a)(3) requires proof of the following elements:    (1)

commission of criminal sexual assault and (2) that "the accused

acted in such a manner as to threaten or endanger the life of the

victim or any other person" (720 ILCS 5/12-14(a)(3) (West 2004)).

A violation of section 12-14(a)(3) is a Class X felony.    720 ILCS

5/12-14(d)(1) (West 2004).

            Defendant contends an accused's threat to use a danger-

ous weapon is the same as acting in such a manner as to threaten

or endanger the victim's life.    However, the elements are not

identical.    Only section 12-14(a)(1) requires the display,

threatened use, or use of a dangerous weapon or weapon-like


                                 - 8 -
object.   The use of a weapon is not necessary for the accused to

act in such a manner as to threaten or endanger the victim's life

under section 12-14(a)(3).   Moreover, section 12-14(a)(1) does

not require that the display, threatened use, or use of the

dangerous weapon actually threaten or endanger the life of the

victim or another.   People v. Daniel, 311 Ill. App. 3d 276, 284,

723 N.E.2d 1279, 1287 (2000) (noting the language in section 12-

14(a)(1) "simply means that an accused need only threaten to use

a dangerous weapon during the commission of the offense, nothing

more, nothing less").   Section 12-14(a)(1) requires the display

or threat to use a dangerous weapon, while section 12-14(a)(3)

requires acts which threaten the victim's life.

           That the elements of the two offenses are not identical

can be seen by looking at the Fifth District's decision in People

v. Singleton, 217 Ill. App. 3d 675, 577 N.E.2d 838 (1991).

There, the State charged the defendant under section 12-14(a)(3),

alleging he acted in a manner that threatened or endangered the

victim's life.   Singleton, 217 Ill. App. 3d at 686-87, 577 N.E.2d

at 845.   The evidence indicated the defendant entered the vic-

tim's bedroom and told her he would kill her if she did not have

sex with him and pushed the victim onto the bed.   Singleton, 217

Ill. App. 3d at 686, 577 N.E.2d at 845.

           The Fifth District held the facts were insufficient to

sustain a conviction under section 12-14(a)(3) because that


                               - 9 -
section required an overt act that threatened or endangered the

victim's life and not simply verbal threats.     Singleton, 217 Ill.

App. 3d at 687, 577 N.E.2d at 845.     Considering the Fifth Dis-

trict's analysis, a threat to use a dangerous weapon under

section 12-14(a)(1) would not satisfy the element of threat under

section 12-14(a)(3).   Thus, as the elements of the two offenses

are not identical, section 12-14(a)(1) does not run afoul of the

proportionate-penalties clause.

                          3. Due Process

          Defendant also argues the 10-year enhancement under

section 12-14(a)(1) when an offender does not actually possess a

dangerous weapon is an unreasonable and arbitrary exercise of the

State's police power in violation of the due-process guarantees

of the United States and Illinois Constitutions.

          The General Assembly has wide discretion in prescribing

penalties for criminal offenses.   See People v. McCleary, 353

Ill. App. 3d 916, 926, 819 N.E.2d 330, 339 (2004).     "This exer-

cise of the State's police power, however, is subject to the

constitutional requirement that a person may not be deprived of

liberty without due process of law."     People v. Reed, 148 Ill. 2d

1, 11, 591 N.E.2d 455, 459 (1992).

          When construing the constitutionality of a statute that

does not affect a fundamental right, as in this case, the appro-

priate method of scrutiny is the rational-basis test.     People v.


                              - 10 -
Johnson, 225 Ill. 2d 573, 584, 870 N.E.2d 415, 421-22 (2007).

Under that test, a statute is constitutional if it bears a

reasonable relationship to the public interest being protected

and the manner of achieving that objective is also reasonable.

People v. Linder, 127 Ill. 2d 174, 180, 535 N.E.2d 829, 831

(1989).    In applying this test, courts must "[(1)] identify the

public interest that the statute is intended to protect, [(2)]

examine whether the statute bears a reasonable relationship to

that interest, and [(3)] determine whether the method used to

protect or further that interest is reasonable."    Linder, 127

Ill. 2d at 180, 535 N.E.2d at 832.

            Defendant contends the public interest the legislature

intended to protect through the enhancement provision in section

12-14(a)(1) is the prevention of the use of non-firearm dangerous

weapons when an offender commits the offense of criminal sexual

assault.    We find defendant's interpretation too narrow.

            In considering the public interest the statute is

intended to protect, "the legislature's intent is to be deter-

mined from the statute in its entirety, including the subject it

addresses."    Linder, 127 Ill. 2d at 182, 535 N.E.2d at 832.

"[T]he purpose of the aggravated[-]criminal[-]sexual[-]assault

statute is to protect victims of forcible sexual penetration

where such conduct is accompanied by certain aggravating circum-

stances."    People v. Sanchez, 344 Ill. App. 3d 74, 82, 800 N.E.2d


                               - 11 -
455, 462 (2003); see also People v. Printy, 232 Ill. App. 3d 735,

743, 598 N.E.2d 346, 352-53 (1992) (purpose of the Criminal

Sexual Assault Act of 1984 "was to protect the victims and punish

the perpetrators of sexually impermissible conduct").    The public

interest served by the statute is "to protect victims and punish

perpetrators by curtailing sexually harmful and offensive con-

duct."   Sanchez, 344 Ill. App. 3d at 83, 800 N.E.2d at 462.

           Section 12-14(a)(1) bears a reasonable relationship to

the public interest of deterring and punishing violent sexual

offenders.   The law rationally serves that targeted interest by

including those violent sexual offenders who seek to overcome the

will of their victims by threatening the use of dangerous weapons

other than firearms.    Such threats can be highly effective in

enabling offenders to accomplish sexual assaults and also dis-

courage victims from defending themselves or signaling for help.

           In passing the statute, the General Assembly could

reasonably have determined that punishing threats to use danger-

ous weapons was equally as important as punishing the display or

use of those weapons.    Thus, section 12-14(a)(1) was reasonably

related to the legitimate goals of protecting victims and deter-

ring and punishing violent sexual offenders.    Moreover, the

enhanced penalty under section 12-14(a)(1) for criminal sexual

assault committed when an offender threatens to use a dangerous

weapon is a reasonable means of furthering the State's interest

in deterring sexually harmful and offensive conduct.

                               - 12 -
                        B. Sentence Credit

          Defendant argues he is entitled to an additional seven

days of credit for time served prior to sentencing.    The State

argues he is entitled to only six days.   We agree with the State.

          Section 5-8-7(b) of the Unified Code of Corrections

(730 ILCS 5/5-8-7(b) (West 2004)) provides an offender shall be

given credit on his sentence for time spent in custody.    A

"defendant is entitled to one day of credit for each day (or

portion thereof) that he spends in custody prior to sentencing,

including the day he was taken into custody."   People v. Ligons,

325 Ill. App. 3d 753, 759, 759 N.E.2d 169, 174 (2001).    "[A]

defendant will not be credited for the day of sentencing in which

he is remanded to the Department of Corrections."     People v.

Foreman, 361 Ill. App. 3d 136, 157, 836 N.E.2d 750, 768 (2005).

          In the case sub judice, the trial court credited

defendant with 1,015 days for time spent in custody.    The record

indicates defendant was taken into custody on August 12, 2004,

and he remained in custody until May 30, 2007, the date of

sentencing.   The period of time between August 12, 2004, and May

29, 2007, amounts to 1,021 days.   Therefore, defendant is enti-

tled to six additional days of sentence credit for a total of

1,021 days.

                        C. Costs of Appeal

          In the conclusion of its brief, the State asked that

costs of the appeal be assessed against defendant pursuant to

                              - 13 -
section 4-2002(a) of the Counties Code (55 ILCS 5/4-2002(a) (West

2006)).   Defendant argues the State is not entitled to costs

where he has obtained partial relief as a result of his appeal.

           "The successful defense of any part of a criminal

judgment challenged on appeal entitles the State to a per diem

fee and costs for its efforts."     People v. Smith, 133 Ill. App.

3d 613, 620, 479 N.E.2d 328, 333 (1985); see also People v.

Nicholls, 71 Ill. 2d 166, 178-79, 374 N.E.2d 194, 199 (1978).

Because the State has successfully defended a portion of the

criminal judgment, we find the State is entitled to its $50

statutory assessment.

                          III. CONCLUSION

           For the reasons stated, we affirm defendant's convic-

tions and sentences as modified to reflect six additional days of

sentence credit, and we remand for issuance of an amended judg-

ment of sentence so reflecting.     As part of our judgment, we

award the State its $50 statutory assessment against defendant as

costs of this appeal.

           Affirmed as modified; cause remanded with directions.

           KNECHT, J., concurs.

           COOK, J., dissents.




                                 - 14 -
          JUSTICE COOK, dissenting:

          In regard to the identical-elements test, the aggravat-

ing element in section (a)(1) is that the accused "threatened to

use *** a dangerous weapon," and the aggravating element in

section (a)(3) is that the accused acted in such a manner as to

"threaten or endanger the life of the victim."   720 ILCS 5/12-

14(a)(1), (a)(3) (West 2004).    It is difficult to see any practi-

cal difference between these two aggravating elements, yet one

comes with a mandatory 10-year sentencing enhancement and the

other does not.

          Compounding this inconsistency, the trial court was

required to tack on the 10-year sentencing enhancement to each of

the four aggravated-criminal-sexual-assault counts, which in turn

were required to be served consecutively.   The practical result

is that defendant received a 40-year sentencing enhancement

because he threatened to use a knife.    The proportionate-penal-

ties clause requires that "penalties be determined both according

to the seriousness of the offense and with the objective of

restoring the offender to useful citizenship."    Ill. Const. 1970,

art. I, §11.   Threatening to use a knife did not so change the

nature and character of this offense that defendant should

receive an additional 40 years' imprisonment.




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