No. 3--00--0487

_________________________________________________________________

					    IN THE

                   APPELLATE COURT OF ILLINOIS

                         THIRD DISTRICT

                           A.D., 2001

THE PEOPLE OF THE STATE         )  Appeal from the Circuit Court

OF ILLINOIS,                    )  of the 21st Judicial Circuit,

					       )  Kankakee County, Illinois

	Plaintiff-Appellee,	       )

                                )

	v.                         )  No. 98--CF--486

						  )

RICHARD O. WADE,                )  Honorable

						  )  Clark Erickson,

	Defendant-Appellant.       )  Judge Presiding

________________________________________________________________

							                 ORDERJUSTICE McDADE DELIVEREDdelivered the opinio n of the court:                

________________________________________________________________

	Defendant Richard O. Wade pleaded guilty to one count each

of predatory criminal sexual assault of a child (720 ILCS 5/12--

14.1(a)(1) (West 1996)) and child pornography (720 ILCS 5/11--

20.1(a)(1)(ii) (West 1996)).  He was sentenced to consecutive

prison terms of 15 and 7 years, respectively.  Those terms were

subsequently reduced to 12 and 5 years.  On appeal, defendant

claims that (1) his prison sentences should be modified to run

concurrently, and (2) the trial court erred in ordering

forfeiture of a computer and digital camera without conducting a

forfeiture hearing pursuant to section 11--20.1A of the Criminal

Code of 1961 (Code) (720 ILCS 5/11--20.1A (West 1996)).  We

affirm in part and reverse in part.

	FACTS

	The State brought a 13-count indictment against defendant,

charging him with one count of predatory criminal sexual assault

of his 11-year-old step-daughter, M.M., and 12 counts of child

pornography.  Pursuant to a partially negotiated plea agreement,

defendant pleaded guilty to predatory criminal sexual assault

(count I) and child pornography committed contemporaneously with

the assault (count II).  In exchange, the State dismissed the

remaining 11 counts of child pornography.

	At the hearing to accept defendant's plea, the prosecutor

presented a factual basis concerning an incident that occurred

between June 1, 1997, and June 1, 1998.  During that incident,

defendant caused M.M. to perform an act of fellatio on him and

took a picture of her doing so.  The picture was downloaded from

a digital camera into the family computer, where it was

subsequently discovered by a family friend.  Following

admonishments, the trial court accepted defendant's plea and set

the cause for sentencing.

	At the sentencing hearing, the parties introduced extensive

testimony in aggravation and mitigation.  In closing remarks, the

prosecutor recommended imposition of maximum prison terms to be

served consecutively pursuant to section 5--8--4(a) of the

Unified Code of Corrections (730 ILCS 5/5--8--4(a) (West 1996))

and requested a forfeiture order pursuant to section 11--20.1(e) of the Code (720 ILCS 5/11--20.1(e) (West 1996)).

	Prior to imposing sentence, the court determined that the

offenses were committed during a single incident.  The court

admonished defendant that consecutive sentences were mandatory on

that basis.  The court also found that defendant's potential for

rehabilitation was outweighed by the harm inflicted on the victim

and the need to deter others.  Accordingly, the court imposed

consecutive terms of 15 and 7 years for the two offenses.  The

court then declared that it was granting the State's request for

forfeiture of the digital camera and the computer.  Defense

counsel objected to the forfeiture order on grounds that the

property was co-owned and the illegal material could be deleted. 

The objection was overruled.

	Defendant's post-sentencing motion was denied and he

appeals.

	I.  CONSECUTIVE SENTENCING

	Defendant initially contends that his sentences must be

modified to run concurrently pursuant to Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct 2348 (2000).  The

Supreme Court in Apprendi held that any factor, other than a prior conviction, which increases the penalty for a crime beyond

the prescribed statutory maximum must be pleaded and proved

beyond a reasonable doubt.  Apprendi, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct 2348.

	Defendant argues that his aggregate sentence was

unconstitutionally increased without proof beyond a reasonable

doubt that the two offenses were committed as part of a single

course of conduct (see 730 ILCS 5/5--8--4(a) (West 1996)). 

During the pendency of this appeal, the appellate court in People v. Maiden, 318 Ill. App. 3d 545, 743 N.E.2d 1052 (2001) considered and rejected this argument.  Our supreme court subsequently approved the holding of Maiden in People v. Wagener, 196 Ill. 2d 269, ___ N.E.2d ___ (2001), and People v. Carney, No. 90549 (June 21, 2001).  In both of these recent decisions, the

supreme court ruled that the mandatory consecutive sentencing

provisions of section 5--8--4 of the Unified Code of Corrections

do not increase punishment exceeding the statutory maximum for

each discrete offense, but only control how multiple sentences

are served.  Accordingly, sentences imposed pursuant to section

5--8--4 do not violate the rule of Apprendi.  Wagener, 196 Ill. 2d 269, ___ N.E.2d ___; Carney, No. 90549.  Based on binding precedent, we now reject defendant's constitutional challenge to

his prison sentences.

	Defendant argues in the alternative that the trial court

might have erred by imposing consecutive sentences pursuant to

the statute in effect at the time of sentencing, without finding

that the two offenses were committed during a single course of

conduct.  See Pub. Act 90--128, eff. July 22, 1997 (amending 730 ILCS 5/5--8--4(b)).  This argument is not well taken.

	Public Act 90--128 added a mandatory consecutive sentencing

provision in subsection 5--8--4(b) for triggering offenses not

committed during a single course of conduct, and left intact the

mandatory provision of subsection 5--8--4(a) for offenses that

were so committed.  See 730 ILCS 5/5--8--4(a),(b) (West 1998). 

Thus, after July 22, 1997, mandatory consecutive sentencing

applies when one of the offenses was predatory criminal sexual

assault of a child, whether the offenses were committed together

or separately.

	In this case, the offenses charged in counts I and II were

committed between June 1, 1997, and June 1, 1998; therefore, they

could have been committed prior to the amending legislation. 

However, the record discloses that the trial court determined

that the two offenses were committed during a single course of

conduct.  Accordingly, the court properly imposed mandatory

consecutive sentences under subsection 5--8--4(a), and the July

22, 1997, amendment to subsection 5--8--4(b) could not have

affected the sentencing decision. 

	II.  FORFEITURE

	Next, defendant argues that his personal computer and camera

were forfeited in violation of section 11--20.1A(b)(1) of the

Code (720 ILCS 5/11--20.1A(b)(1) (West 1996)).  In response, the

State argues that a second forfeiture provision, subsection 11-- 20.1(e) (720 ILCS 5/11--20.1(e) (West 1996)), "overlaps" section

11--20.1A and allows the State to obtain a forfeiture order

pursuant to article 36 of the Code (720 ILCS 5/36--1 et seq. (West 1996)).  That article, the State suggests, requires that a

forfeiture complaint be filed and a hearing held only if the

property at issue is registered with a state or federal agency. 

Further, the State contends, there was sufficient evidence

introduced at defendant's guilty plea and sentencing proceedings

to support the forfeiture order.  In his reply brief, defendant

contends that the State failed to comply with article 36

procedures as well.  

	Resolution of this issue requires a threshold determination

of which statutory provision (11--20.1A or 11--20.1(e)) controls

the forfeiture of personal equipment used in the commission of

child pornography.  This determination, in turn, requires

ascertainment of the legislature's intent.  People v. 1991 Dodge Ram Charger, 250 Ill. App. 3d 810, 620 N.E.2d 448 (1993).  The plain language of a statute is the best indicator of legislative

intent.  People v. Rissley, 165 Ill. 2d 364, 651 N.E.2d 133 (1995).  We are also guided by rules that: (1) statutes which

relate to the same subject are deemed to be in pari materia and should be construed together (People ex rel. Daley v. Datacom Systems Corp., 146 Ill. 2d 1, 585 N.E.2d 51 (1991)); and (2) a court should avoid an interpretation that would render any portion of a statute meaningless or void.  McNamee v. Federated Equipment & Supply Co., Inc., 181 Ill. 2d 415, 692 N.E.2d 1157 (1998).  Further, amendments to statutes are construed together

with the original act, and the language of an amended statute is

construed in light of the need for the amendment and the purpose

it serves.  People v. Woodard, 175 Ill. 2d 435, 677 N.E.2d 935 (1997).

	The legislative history of Illinois' child pornography

statutes sheds light on the legislature's intent.  Subsection 11-

-20.1(e) was added by Public Act 84--1029, effective November 18,

1985.  720 ILCS Ann. 5/11--20.1, Historical & Statutory Notes, at

201-202 (Smith-Hurd 1993).  The subsection specifically

authorizes the forfeiture of pornographic reproductions and other

materials and equipment used in committing child pornography and

provides that such property be "seized and forfeited in the

manner, method and procedure provided by Section 36--1" of the

Code.  720 ILCS 5/11--20.1(e) (West 1996).  Section 36--1 applies

to the seizure of vessels, vehicles and aircraft.  Forfeiture

procedures for property seized pursuant to section 36--1 are

contained in section 36--2.  720 ILCS 5/36--2 (West 1996).

	Effective August 15, 1986, section 11--20.1 was amended by

Public Act 84--1280, which added a forfeiture provision in

subsection (f).  The amendment provided procedures for

forfeitures of all personal and business profits, proceeds and property and property interest "acquired or maintained as a

result of child pornography."  Ill. Rev. Stat. 1987, ch. 38, par.

11--20.1(f)(1).  The legislation thus greatly expanded the scope

of property subject to forfeiture, while leaving intact the

provision in subsection (e) for forfeiture of certain kinds of

personal property and equipment used in committing child

pornography.

	Effective August 19, 1988, section 11--20.1 was amended by

Public Act 85--1194.  This amendment deleted the forfeiture

procedures in subsection 11--20.1(f) and created a new section,

11--20.1A, entitled "Forfeitures."  720 ILCS 5/11--20.1A (West

1992); 720 ILCS Ann. 5/11--20.1, Historical & Statutory Notes, at

201-02 (Smith-Hurd 1993).     

	The plain language of section 11--20.1A indicates that the

forfeiture procedures therein relate to property associated with

the business of child pornography.  By enacting Public Acts 84-- 1280 and 85--1194, the legislature clearly intended to deter

perpetrators of certain sexual offenses against children by

confiscating profits derived from exploiting them.  Further, the

legislature twice amended section 11--20.1 without excising the

reference to article 36 procedures in subsection 11--20.1(e).  In

so doing, the legislature could not have intended that the

procedures applicable to forfeitures of personal pornography

material, equipment and reproductions (subsection 11--20.1(e)) would merely duplicate or "overlap" forfeiture proceedings for

the type of property covered by section 11--20.1A.  Thus,

construing both provisions together, we conclude that the

legislature intended that article 36 forfeiture procedures should

apply to the camera and computer at issue in this case. 

	Having determined that article 36 controls, we next consider

the State's argument that the proceedings in the trial court

satisfied statutory requirements.  In this regard, we are mindful

of the general rule that forfeitures are not favored and the law

must be narrowly interpreted to avoid injustice.  People v. DeLuca, 302 Ill. App. 3d 454, 706 N.E.2d 927 (1998).

	As indicated above, section 36--1 incorporates by reference

the forfeiture procedures set forth in section 36--2.  Section

36--2 provides that the State's Attorney must file a complaint in

the circuit court, give notice to the owner of the property, and

establish at a hearing that the property was used in the

commission of an offense covered by article 36.  Further, at the hearing, the defendant or any other party with an interest in the

property may assert an innocent owner claim.  720 ILCS 5/36--2(a)

(West 1996).  Although reference is made in section 36--1 to

"registered" owners, such reference does not absolve the State

from giving notice of forfeiture proceedings to owners of other,

non-registered property when article 36 is applied to forfeitures

of child pornography equipment.

	In this case, the proceedings did not comply with article 36

requirements because no forfeiture complaint was filed and no

forfeiture hearing was held.  In fact, the State's first mention

of forfeiture did not come until the prosecutor's sentencing

recommendation.

	Moreover, the record gives no assurance that no injustice

resulted.  At least with respect to the unnamed co-owner

mentioned by defense counsel in her objection to the forfeiture

order, the State's failure to comply with the statutory notice

and hearing requirements deprived a possible claimant of a

meaningful opportunity to be heard.  Any "innocent owner" claim

that might have been made under section 36--2(a) was foreclosed

by the improper proceedings.  Accordingly, the order of

forfeiture must be vacated.  See 1991 Dodge Ram Charger, 250 Ill. App. 3d 810, 620 N.E.2d 448.

	CONCLUSION

	For the reasons stated, the judgment of the circuit court of

Kankakee County is affirmed in part and vacated in part.

	Affirmed in part; vacated in part.

	McDADE, J., with 	HOMER, P.J., and SLATER, J., concurring.