Docket No. 87104–Agenda 7–January 2000.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. 

								RUSSELL STACEY, Appellant.

Opinionf filed Se3pteeptember 21, 2000. il 

	JUSTICE BILANDIC delivered the opinion of the court:

	Defendant, Russell Stacey, was convicted in the circuit court

of Cook County by two separate juries of aggravated criminal

sexual abuse (720 ILCS 5/12–16(d) (West 1994)) and criminal

sexual abuse (720 ILCS 5/12–15(a)(1) (West 1994)), which arose

out of separate acts in which defendant grabbed the breasts of two

teenage girls. The circuit court sentenced defendant to 25 years’

imprisonment for the aggravated criminal sexual abuse conviction

and 25 years’ imprisonment for the criminal sexual abuse

conviction, with the sentences to run consecutively. Defendant

appealed to the appellate court challenging his sentences as being

excessive. The appellate court affirmed defendant’s convictions and

sentences. No. 1–98–0307 (unpublished order under Supreme

Court Rule 23). We allowed defendant’s petition for leave to

appeal, which raises only the issue relating to the excessiveness of

the sentences. 177 Ill. 2d R. 315. For the reasons that follow, we

reverse the judgment of the appellate court, and affirm but modify

the judgment of the circuit court to impose consecutive six-year

terms of imprisonment.

FACTS

	The record of defendant’s first trial established that, on May

30, 1995, the then 15-year-old victim, Susy S., was walking to

school with her friend, Jillian G., who was 14 years old at the time.

Defendant, who was 33 years old at the time, appeared from an

alley and began walking toward them, staring at them. When the

girls tried to move to one side, defendant moved to the same side.

When defendant approached the victim, he forced his hand

between her crossed arms and grabbed her breast for a few

seconds, until she knocked his arm away. As defendant walked

away, he blew her a kiss. The victim proceeded to her friend’s

house and contacted her mother and the police. Later, the victim

went to school and gave a description of defendant to a school police officer. On June 2, 1995, the victim identified defendant at

the police station as the man who attacked her.

	Defendant testified on his own behalf and denied grabbing

Susy S.’s breast. After considering the evidence, the jury found

defendant guilty of the aggravated criminal sexual abuse of Susy S. 

	The record of defendant’s second trial established that, on

June 2, 1995, the victim, Lisa G., who was 18 years old at the time

and attended the same high school as Susy S., was walking by

herself to school. As she approached school, defendant walked

toward her and stared at her. Defendant then stepped in front of

her, blocked her path, grabbed her breast, and squeezed it. After

the victim pushed his hand away, defendant blew her a kiss. As the

victim turned to get a good look at defendant, he said, “Don’t even

try it or I will knock the shit out of you.” Shortly thereafter,

defendant yelled, “Suck my dick,” and grabbed his genitals in an

obscene manner. The victim proceeded to school, informed a

security officer of what had happened, and described defendant.

That same day, the victim identified defendant as the offender after

he was detained near school during an investigation of the earlier

offense. 

	The record also included the testimony of Monica A. for the

limited purpose of presenting evidence of defendant’s

identification, intent, modus operandi, and absence of accident. In

February of 1992, Monica A., who was age 12, was walking to

school with her 9-year-old sister when defendant approached her

and tried to grab her breast. Monica crossed her arms over her

chest and leaned away from defendant. However, when defendant

walked along side of her, he grabbed her buttocks for a few

seconds and commented that she had a nice “ass.” As Monica and

her sister walked away, defendant unzipped his pants, pulled out

his penis and said, “[H]ey, girls, suck on this.” Monica

subsequently identified defendant as her attacker in a lineup.

	The second jury found defendant guilty of the criminal sexual

abuse of Lisa G. 

	At the sentencing hearing on both convictions, the State

presented evidence in aggravation. Chicago police officer Thomas

Lynch testified that, on September 8, 1990, he interviewed Betsy

C., who was then 11 years old, and Renell G., who was then 27 years old, regarding an investigation of a sexual attack. They stated

that, while they were walking down the street, defendant

approached them and grabbed Betsy C.’s buttocks. As they tried

to walk away, defendant grabbed Renell G.’s breasts. Both Betsy

C. and Renell G. subsequently identified defendant as their

attacker. 

	Chicago police officer Walter Siudut testified that, on March

11, 1991, he spoke to 15-year-old Tina S. She indicated to him

that, as she was walking to school that morning, a man walked up

behind her and grabbed her buttocks. Tina S. later identified

defendant’s photograph from a photo array.

	The State also introduced victim impact statements from Susy

S. and Lisa G. Both girls expressed their fears resulting from their

encounter with defendant. Susy S. stated that she is afraid to go

anywhere alone and is never at ease. Lisa G. indicated that she

does not walk anywhere alone, no longer feels safe, and does not

trust anyone.

	The presentence investigation report, which was presented to

the court, set forth defendant’s prior convictions for aggravated

criminal sexual abuse (1993); assault (1991); criminal sexual abuse

(1991); attempted burglary (1990); burglary (1985); retail theft

(1983); possession of a stolen motor vehicle (1980); and burglary

(1979).

	Defense counsel did not present any mitigating witnesses, but

argued in mitigation that the nature of defendant’s actions did not

deserve severe punishment.

	After considering the aggravating and mitigating factors, the

trial court initially ruled that defendant would be sentenced as a

Class X offender in light of his prior felony burglary convictions.

The court then indicated that defendant’s criminal history showed

a propensity to commit the same offense despite attempts by the

criminal justice system to deter him from committing such crimes.

More specifically, the court referred to the fact that defendant’s

prior sentences have included counseling, probation, and

imprisonment. The court therefore sentenced defendant to 25-year

terms of imprisonment for each offense. The court further ordered

that such sentences run consecutively so as to protect the public

from further criminal conduct by defendant.

	Defendant appealed his sentences to the appellate court, where

he argued that his sentences were excessive. The appellate court

rejected defendant’s argument and determined that the trial court

did not abuse its discretion in sentencing defendant.

ANALYSIS

	Defendant’s sole contention on appeal is that the trial court

abused its discretion by sentencing defendant to consecutive 25-

year prison terms. According to defendant, his 50-year sentence is

excessive given the nature of the crime.

	The State responds that the trial court properly exercised its

discretion in sentencing defendant where the sentences were within

the statutory limits, were based on defendant’s extensive criminal

background, and were required to protect the public from further

criminal activity by defendant.

	It is well settled that the trial court has broad discretionary

powers in imposing a sentence (People v. Fern, 189 Ill. 2d 48, 53 (1999)), and the trial court’s sentencing decision is entitled to great deference (People v. Perruquet, 68 Ill. 2d 149, 154 (1977)). The trial court is granted such deference because the trial court is

generally in a better position than the reviewing court to determine

the appropriate sentence. The trial judge has the opportunity to

weigh such factors as the defendant’s credibility, demeanor,

general moral character, mentality, social environment, habits, and

age. People v. Streit, 142 Ill. 2d 13, 19 (1991); Perruquet, 68 Ill. 2d at 154. Consequently, the reviewing court must not substitute its judgment for that of the trial court merely because it would have

weighed these factors differently. Streit, 142 Ill. 2d at 19.

	Although the trial court is vested with wide discretion in

sentencing, such discretion is not without limitation. Supreme

Court Rule 615(b)(4) grants the reviewing court the power to

reduce the sentence imposed by the trial court. 134 Ill. 2d R.

615(b)(4). The rule itself, however, does not set forth the scope of

this power or the circumstances under which it should be

exercised. Rather, decisions of this court have established that,

absent an abuse of discretion by the trial court, the sentence may

not be altered on review. Streit, 142 Ill. 2d at 19; Perroquet, 68 Ill. 2d at 153. For example, a sentence within statutory limits will be

deemed excessive and the result of an abuse of discretion by the

trial court where the sentence is greatly at variance with the spirit

and purpose of the law, or manifestly disproportionate to the

nature of the offense. Fern, 189 Ill. 2d at 54.

	Applying these principles to the instant case, we hold that the

trial court abused its discretion in sentencing defendant to 25-year

prison terms. Parenthetically, we note that defendant’s conviction

for aggravated criminal sexual abuse is a Class 2 felony (see 720

ILCS 5/12--–16(g) (West 1994)), and defendant’s conviction for

criminal sexual abuse is elevated to a Class 2 felony because of his

prior conviction for aggravated criminal sexual abuse (see 720

ILCS 5/12--–15(d) (West 1994)). Moreover, because of defendant’s

two prior Class 2 felony burglary convictions, defendant is eligible

to be sentenced as a Class X offender on each conviction. See 730

ILCS 5/5--–5--–3(c)(8) (West 1994). A Class X felony carries a

statutory sentence of not less than 6 years and not more than 30

years. 730 ILCS 5/5--–8--–1(a)(3) (West 1994). Consequently, the

trial court’s 25-year sentence for each offense is within statutory

limits.

	Nevertheless, we find that the sentence is manifestly

disproportionate to the nature of the offenses. In these separate

offenses, defendant momentarily grabbed the breasts of two young

girls, who were fully clothed at the time, and he made lewd

comments and gestures. Although such behavior is appalling and

harmful, it is not severe enough to warrant a 25-year sentence.

Given the nature of the crimes, the 25-year sentences imposed are

excessive and an abuse of discretion on the part of the trial court.

In so holding, we are not reweighing any aggravating or mitigating

factors. In fact, defendant does not contend that the trial judge

considered any improper factors in imposing sentence. Moreover,

we do not condone defendant’s actions. We acknowledge that

defendant’s conduct is reprehensible. Nevertheless, we must adhere

to our constitution’s mandate that penalties be determined

according to the seriousness of the offense. Ill. Const. 1970, art. I,

§11. Here, the level of seriousness of the offenses does not warrant

25-year sentences.

	Although the trial court abused its discretion in imposing 25-

year sentences, we nevertheless find no such abuse of discretion

regarding the consecutive nature of the sentences. Consecutive

sentences may be imposed where the trial court “having regard to

the nature and circumstances of the offense and the history and

character of the defendant, it is of the opinion that such a term is

required to protect the public from further criminal conduct by the

defendant.” 730 ILCS 5/5--–8--–4(b) (West 1994). Here, the trial

court relied on defendant’s prior criminal history, which included

other such acts against young girls, and defendant’s repeated

failure at rehabilitation, to conclude that the imposition of

consecutive sentences was necessary to protect the public from

defendant’s conduct. There is no abuse of discretion in such a

conclusion.

	Having determined that 25-year sentences are excessive and

the result of an abuse of discretion, we must determine whether to

impose a new sentence or remand the matter for resentencing by

the trial court. We find it unnecessary in this case to remand to the

trial court for resentencing. See People v. Saldivar, 113 Ill. 2d 256, 272 (1986). In the exercise of our authority under Supreme Court

Rule 615(b)(4) (134 Ill. 2d R. 615(b)(4)), we reduce defendant’s

sentence to six years for each offense, the minimum period of

incarceration provided for a Class X offense, with each sentence to

run consecutively. Such a reduction in defendant’s sentence

comports with the nature of the offenses while not diminishing the

seriousness of defendant’s actions.

CONCLUSION

	For the reasons stated, the judgment of the appellate court is

reversed. The judgment of the circuit court is affirmed but modified

to impose consecutive sentences of six years’ imprisonment for

defendant’s aggravated criminal sexual abuse and criminal sexual

abuse convictions.

Appellate court judgment reversed;

						circuit court judgment affirmed as modified. 

	JUSTICE FREEMAN, dissenting:

	I respectfully dissent. 	In my view, defendant’s aggregate

sentence of 50 years exceeds the limit mandated by the legislature

as set forth in the sentencing statutes applicable to defendant.

Therefore, the court errs when it states that the imposed sentence

is within the statutory limits. See slip op. at 5. Because the record

affirmatively demonstrates that both the parties and the trial judge

misapprehended the parameters of the sentencing range to be

utilized in this case, I would remand the matter for resentencing.

	As noted in the court’s opinion, defendant was convicted by

two separate juries of aggravated criminal sexual abuse and

criminal sexual abuse. At the ensuing sentencing proceedings, the

trial judge and the parties proceeded under section 5–5–3(c)(8) of

the Unified Code of Corrections, which provides in pertinent part

that

			“When a defendant, over the age of 21 years, is

convicted of a Class 1 or Class 2 felony, after having twice

been convicted of any Class 2 or greater Class felonies in

Illinois, and such charges are separately brought and tried

and arise out of different series of acts, such defendant

shall be sentenced as a Class X offender.” 730 ILCS

5/5–5–3(c)(8) (West 1994).

Moreover, defendant, having been convicted of two separate

offenses, was to receive two sentences. At the sentencing hearing,

the State, citing to section 5–8–4(b) of the Code, requested that

the trial judge impose “consecutive terms of sentencing with

respect to each incident up to 60 years.” Section 5–8–4 allows the

sentencing judge to determine whether multiple sentences are to be

served concurrently or consecutively. See 730 ILCS 5/5–8–4

(West 1994). According to section (b) of the statute, consecutive

sentences “shall not be imposed” unless the sentencing judge,

having considered the nature and circumstances of the offense and

history and character of the defendant, “is of the opinion that such

a term is required to protect the public from further criminal

conduct by the defendant.” 730 ILCS 5/5–8–4(b) (West 1994).

The trial judge expressed his belief on the record that consecutive

sentences were warranted based on the evidence adduced at the

hearing: “the sentence that I give here today must be targeted at the goal of keeping Mr. Stacey from committing further instances

of sexual crimes *** to protect the public ***.”

	Due to the dual applicability of both section 5–5–3(c)(8) and

section 5–8–4(b) of the Code, the trial judge and the parties

considered 6 to 30 years (the range for Class X offenses) to be the

appropriate range for each sentence to be imposed. The State

sought two 30-year sentences to be imposed consecutively for an

aggregate sentence of 60 years. Defense counsel asked that the

minimum be imposed. The trial judge ultimately decided upon two

25-year sentences to be served consecutively for an aggregate

sentence of 50 years.

	Neither the trial judge nor the parties, however, took into

account the limiting language contained in section 5–8–4(c)(2),

which states:

			“[T]he aggregate of consecutive sentences shall not

exceed the sum of the maximum terms authorized under

Section 5–8–2 for the 2 most serious felonies involved.”

730 ILCS 5/5–8–4(c)(2) (West 1994).

Section 5–8–4(c)(2) plays an important role in fashioning

consecutive sentences. The aim of the statute “is to limit the total

length of consecutive sentences imposed on a defendant, while still

fairly punishing the defendant in relation to the severity of the crimes. Such a purpose is reasonable in the context of punishing a defendant for a series of crimes, where the stacking of penalties can

result in sentences of extraordinary harshness.” (Emphasis added.)  People v. Tucker, 167 Ill. 2d 431, 436 (1995), citing 3 ABA Standards for Criminal Justice §18–4.5 (2d ed. Supp. 1986).  See

also People v. Pullen, No. 87542, slip op. at 7 (July 6, 2000) (same).1

	We recently explained in Pullen that section 5–8–4(c)(2) limits the aggregate of consecutive sentences to be imposed upon a

defendant who has been convicted of Class 1 or 2 felonies, but is

eligible for sentencing as a Class X offender because of prior

convictions.  We noted that section 5–5–3(c)(8) has been

construed by this court to mean that, while defendant is to be

sentenced as a Class X offender, the classification and character of

the felonies committed does not change.  See People v. Pullen, No. 87542 (July 6, 2000); People v. Olivo, 183 Ill. 2d 339, 340-41 (1998); People v. Thomas, 171 Ill. 2d 207, 224 (1996); People v. Jameson, 162 Ill. 2d 282, 290 (1994).  In other words, section 5–5–3(c)(8) leaves unaffected the classification of a defendant’s

offenses. We explained in Thomas that the legislative intent behind the provision was to subject defendants convicted of Class 1 and

Class 2 felonies to an enhanced sentencing range of from 6 to 30

years.  See Thomas, 171 Ill. 2d at 224.  However, the fact that a defendant is to be sentenced as a Class X offender, pursuant to

section 5–5–3(c)(8), does not change the classification of the “two

most serious felonies involved” for purposes of consecutive

sentencing under section 5–8–4(c)(2).  Pullen, slip op. at 5-6 (and cases cited therein).  In light of these principles, we held in Pullen that where, as here, a defendant has been convicted of two Class

2 felonies and is eligible for sentencing as a Class X offender, the

aggregate of the consecutive sentences imposed by the trial court

may not exceed the sum of the maximum terms authorized under

section 5–8–2 for Class 2 felonies.

	 The maximum term authorized for a Class 2 felony, under

section 5–8–2, is 14 years.  See 730 ILCS 5–8–2(a)(4) (West

1994).  Therefore, the maximum aggregate sentence authorized in

this case was 28 years. The trial judge sentenced defendant to an

aggregate sentence of 50 years of imprisonment, a sentence that

exceeds, by 22 years, the sentence authorized by statute. 

Defendant’s sentence is therefore void.  See Pullen, slip op. at 5.

	In light of the foregoing, our precedent mandates that we

vacate defendant’s sentences and remand the matter for

resentencing.

	JUSTICE McMOrrrrRROW joins in this dissent.