criminal sexual assault becomes everybody criminal sexual assault also a class x felony one perpetrated during the commission of another felony or the facts presented in this case three acts of sexual assault committed during the course of the kidnapping the defendant committed both egger vedic criminal sexual solved and every bit of kidnapping each offense becomes ever visited because during its commission the other offense was also committed but  assume that he was only convicted on one count of the chromosome then obviously there's no consecutive sentence there's no sense to going consecutive to bob in this particular case he was convicted of three counts of aggravated criminal sexual assault for the counts of kidnapping we submit that because the class acts i answer because every bit criminal sexual so requires mandatory consecutive sensing where everybody kidnapping does now that they violate the proportion penalties trouble with it and i know what the supreme court has ruled that the mayor of the of sentencing is is different from the sense itself but the fact is the sentencing code says that consecutive sentences are treated as a single sentence so to accept that argument is to say that seven years is the same as twenty one the fact is in this particular case had he been found guilty and not charged let's say with he ever had a criminal sexual saw terry hopkins will serv aggravate a criminal sexual so a criminal sexual assault because it becomes everybody if during the course of the criminal sexual saw all another felonies committed against the victim in this case the other felonies the kidnapping kidnapping becomes enervated if during the course of the kidnapping another felony in this case criminal sexual assault is committed against the victim they both require proof of the criminal sexual song and the kidnapping both statutes require identical proof in order for the defendant to be found guilty it doesn't matter whether the defendant was charged with all of these but whether the statutes whether two different statutes prescribe the identical conduct and in this particular case the identical car that was committed in violated both statutes that's right the sentencing is disparate if there were any and if there are other issues i mean i  i find problematic in this case are the exception to simple course of conduct if there are three sexual assaults with them that are considered to be within the single course of conduct then they must be consecutive and they had an ongoing well the court is often required to do that because sometimes the statute of statutory provisions i wouldn't without regard to other statutory provisions other provisions in the law that a contradictory premise is as the the case is talk about disparity in some saying in disproportionate sentencing they look to whether the beak conduct the identical conduct violates two distinct laws in this particular case the way the laws are written this defendant's camp thought was both a violation the agric aggravated kidnapping statute end of the aggravated criminal sexual assault stature both by identical should require identical results identical sentencing in this particular case where you have multiple counts which brings in consecutive sentencing as an issue the consecutive sentences should apply or not apply in both situations whatever the legislature feels is appropriate but in this particular case we have two completely different results and and we have a defendant who no only the me and or in which the sentence is carried out not the punishment itself so are you complaining about the punishment itself or the manner i asked you that before and i'm not sure what you  sense would have been thirty six years more than the thirty year maximum for a class that's a felony in back case in that type of fact situation is where that the supreme court has talked about the manner of serving the sentence there been attacks on the treated as a single sentence where they defended the sentence consecutively and multiple felonies it shall be treated by the department of corrections as a single sentence and the fact is that no matter how we play with words whether it's a mater of serving o case and doesn't require in the other and that's where the spirit rises the sentencing range the sentence imposed must be the same for identical felonies that's it we're not talking similar cases similar felonies we're talking the identical fates proving both offenses one case the kidnapping and the criminal sexual assault in the other case the kidnapping the criminal sexual sold for edward a criminal sexual assault we have to prove the kidnapping in the jumping out of a window injuring herself as a result the defendant was charging convicted of four counts of aggravated kidnapping which merged into the three counts of aggravated criminal sexual assault for which he served three he was sentenced to three separate sentences of seven years apiece the only question before this court today is whether the proportion of penalties cries a bit when i constitution is implicated by the consecutive sentencing statute which applies to defendants multiple aggravated criminal sexual assault convictions it is the people's position that a proportion of penalties cause analysis is not proper here both offenses aggravated kidnapping and aggravated criminal sexual assault a class x felonies for which the defendant could serve a minimum of six and a maximum of thirty years in their own department of corrections for each offense convicted on that should end this court's inquiry even though the state does concede that aggravated kidnapping predicated on criminal sexual assault and aggravated criminal sexual assault predicated on kidnapping to contain identical elements the sense sentence ranges are the same and proportional pelleas cause analysis only concerns itself as dr pointed out with the punishment here the might well as your eyes pointed out previously it's a well settled rule in illinois that consecutive sentences do you know that implicate the question itself it only impacts the matter and which sentences are carried out counsel repeatedly referred to one sentence of twenty one years but that's not how the rod looks at the defendant sentence in this case the royal what's it that sentence as three separate sentences for three separate offenses three separate penetrations in this case and he got seven years on each of those had he been sentenced on the aggravated kidnapping he could have received between six to thirty years on each so the sentence range is exactly the same and the was very clear on that  the people cited the case of people versus wagner which kind of illustrates this in that case our supreme court held that consecutive sentences remain discrete there to be treated individually they're not to be transmuted into a single sentence even though as counsel argued the illinois department of corrections might look at it that way the wrong looks at it as though it's a separate sentence and each offense that the defendant was convicted of that even if this court did consider the aggregate of the consecutive sentences council urges you to for an identical elements analysis the statute still survives proportionate penalties analysis because under it and that's a poll aggravated criminal sexual assaults are not always to be served consecutively as counsel did point out only one that committed in a single course of conduct are they to be served consecutively otherwise it's concurrent sentences similarly for aggravated kidnapping those aren't always to be served and that's the convictions of aggravated kidnapping are not always to be served concurrently under section b of the relevant statute which we're discussing today at the discretion of the trial court if the judge finds that in order to protect the public from the defendant consecutive sentences or wanted pull aggravated kidnapping convictions could be served consecutively as well and as your honor did point out during counsel's argument if there was one conviction of aggravated criminal sexual assault even under counsel's theory there is no proportionate penalties honour's discourse should be aware that our supreme court on its own initiative has recently asked the parties to the case of people versus clemens to brief the issue as to whether an identical elements analysis should even be continued under proportionate penalties cause analysis council's asking for an expansive reading of proportion of penalties going broader more so than illinois currently arouse more so than the eighth amendment of the federal constitution clearly allows but we're in a state where we've already gotten rid of the cross comparison analysis taking two penalties with the similar to statutes with a similar purpose say the point being that the application of the identical elements test in a proportion of penalties clause analysis is not a foregone conclusion for the future in illinois your honor just to distinguish all defendants cases that he cited he repeatedly referred to different sentencing ranges each of those cases that where there was a situation where there was maybe a sentence and handsome and so you had identical elements offenses being punished then offense on the side punished with a different range in this case as we said it's the same sentence range for each offense bash for these reasons and no stated number if the people ask that you are from defendants convictions and cens the tory sentencing one of the anomaly that comes about in our legislatures supreme wisdom is that had he kidnapped her three separate times and each time performed only one sexual act he would not be subject to military consecutive minson extended sentences under certain circumstances but don't necessarily require them and it's the requirement of the military sense in this case that we're arguing against that it must be imposed in ever a sentence is of imprisonment one of the rope which is for a felony will be served the department of corrections shall treat the defendant as though he or she had been committed for a single term ok that is not the language of the department of corrections is the language of our legislature and their directive to the department of corrections they say that when there are consecutive sentencing sentences imposed for felonies they should be treated as a single term the bottom line is that we could play with the words in this case but seven years is not the same as twenty one he's given a twenty one year sentence under the aggregate a criminal sexual assault statute in this case because the trial court felt tha could have been twenty one years could have been thirty could have been sixty but he didn't have to be you know he goes back to that when the magistrate or says the court should all impose that the court may impose or the court can consider but shall impose it takes away the court's discretion judge say x felt that he had to impose consecutive sentences he had to get sentence the defendant i mean the criminal sexual assault to consecutive terms even though he was also found guilty of an ever faded kidnapping based on the criminal sexual assault like you were agreeing with me for half it's really sensei and let the judge who heard the facts of the case and observe the defendant observe the victim make that determination without the requirement of the senses beast consecutive with some directive to the legislature to make any sex related offense subject to consecutive sentencing they should have done that yet but in this case what they did was they created a disparity in the two sentences the saloon proved that violates two different laws carries two different sentences which are supreme court says you can add two people should people first show up which we said no brief which talks about identical elements for two different offenses talks about that you can nap impose a different sentencing structure