{ "id": 2432777, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTHONY LAND, Defendant-Appellant", "name_abbreviation": "People v. Land", "decision_date": "1988-12-23", "docket_number": "No. 86-0039", "first_page": "251", "last_page": "261", "citations": [ { "type": "official", "cite": "178 Ill. App. 3d 251" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "473 N.E.2d 1319", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "105 Ill. 2d 275", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3142311 ], "opinion_index": 0, "case_paths": [ "/ill-2d/105/0275-01" ] }, { "cite": "374 N.E.2d 194", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "71 Ill. 2d 166", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5448796 ], "opinion_index": 0, "case_paths": [ "/ill-2d/71/0166-01" ] }, { "cite": "481 N.E.2d 1233", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "135 Ill. App. 3d 502", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3601165 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/135/0502-01" ] }, { "cite": "505 N.E.2d 1222", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "153 Ill. App. 3d 440", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3609512 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/153/0440-01" ] }, { "cite": "490 N.E.2d 1361", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "141 Ill. App. 3d 1036", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3496532 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/141/1036-01" ] }, { "cite": "280 N.E.2d 710", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "51 Ill. 2d 68", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5392579 ], "opinion_index": 0, "case_paths": [ "/ill-2d/51/0068-01" ] }, { "cite": "518 N.E.2d 1382", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "165 Ill. App. 3d 603", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3614252 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/165/0603-01" ] }, { "cite": "515 N.E.2d 228", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "161 Ill. App. 3d 634", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3466691 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/ill-app-3d/161/0634-01" ] }, { "cite": "440 N.E.2d 1248", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "91 Ill. 2d 536", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3091828 ], "opinion_index": 0, "case_paths": [ "/ill-2d/91/0536-01" ] }, { "cite": "523 N.E.2d 1061", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "169 Ill. App. 3d 716", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3551634 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/169/0716-01" ] }, { "cite": "478 N.E.2d 291", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "106 Ill. 2d 373", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3139376 ], "opinion_index": 0, "case_paths": [ "/ill-2d/106/0373-01" ] }, { "cite": "473 N.E.2d 1246", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "104 Ill. 2d 504", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3147214 ], "opinion_index": 0, "case_paths": [ "/ill-2d/104/0504-01" ] }, { "cite": "208 N.E.2d 662", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "60 Ill. App. 2d 239", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2604238 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/60/0239-01" ] }, { "cite": "102 N.E. 1045", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "260 Ill. 35", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4734802 ], "opinion_index": 0, "case_paths": [ "/ill/260/0035-01" ] }, { "cite": "438 N.E.2d 453", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "107 Ill. App. 3d 691", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3018960 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/107/0691-01" ] }, { "cite": "514 N.E.2d 572", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "161 Ill. App. 3d 401", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3468153 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/161/0401-01" ] }, { "cite": "503 N.E.2d 1132", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "152 Ill. App. 3d 304", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3574027 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/152/0304-01" ] }, { "cite": "412 N.E.2d 167", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "89 Ill. App. 3d 333", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5538110 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/ill-app-3d/89/0333-01" ] }, { "cite": "424 N.E.2d 814", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "98 Ill. App. 3d 534", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8499642 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/98/0534-01" ] }, { "cite": "497 N.E.2d 995", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "113 Ill. 2d 83", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3172916 ], "opinion_index": 0, "case_paths": [ "/ill-2d/113/0083-01" ] }, { "cite": "495 N.E.2d 1207", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "145 Ill. App. 3d 626", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3535572 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/145/0626-01" ] }, { "cite": "81 N.E.2d 168", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "400 Ill. 361", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5306347 ], "opinion_index": 0, "case_paths": [ "/ill/400/0361-01" ] }, { "cite": "446 N.E.2d 929", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "113 Ill. App. 3d 109", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3626682 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/113/0109-01" ] } ], "analysis": { "cardinality": 857, "char_count": 20763, "ocr_confidence": 0.739, "pagerank": { "raw": 1.3084974163069184e-07, "percentile": 0.6238691908292723 }, "sha256": "cbe57b32ad27d50bc464bc921b93588a148117280c5ec772d72d25128e92f783", "simhash": "1:fcb83cd6e1e90533", "word_count": 3490 }, "last_updated": "2023-07-14T17:15:09.210343+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTHONY LAND, Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE LORENZ\ndelivered the opinion of the court:\nDefendant, Anthony Land, was charged with rape (Ill. Rev. Stat. 1981, ch. 38, par. 11 \u2014 1(a) (repealed by Pub. Act 83 \u2014 1067, \u00a728, eff. July 1, 1984)) and because he was 16 years old at the time of the offense, he was prosecuted as an adult pursuant to section 2 \u2014 7(6Xa) of the Juvenile Court Act (Ill. Rev. Stat. 1983, ch. 37, par. 702 \u2014 7(6)(a) (now Ill. Rev. Stat. 1987, ch. 37, par. 805 \u2014 4(6)(a))). Following a jury trial, he was found guilty of attempted rape (Ill. Rev. Stat. 1981. ch. 38, par. 8 \u2014 4) and sentenced to 10 years\u2019 imprisonment. On appeal, we address the following seven issues: (1) whether defendant\u2019s failure to obtain a ruling on his motion for a new trial adversely affects his appeal; (2) whether his motion to suppress statements was denied in error because the State did not call a material witness; (3) whether the mother\u2019s testimony of the complainant\u2019s statements concerning the attack should not have been admitted in evidence; (4) whether the expert\u2019s testimony invaded the jury\u2019s exclusive fact finding province; (5) whether the State\u2019s alleged improper comment in closing argument denied defendant a fair trial; (6) whether the trial court erred when it gave the jury a non-pattern jury instruction and a general not guilty verdict form; and (7) whether defendant was erroneously sentenced as an adult. We affirm.\nThe evidence at trial established the following facts.\nOn January 29, 1984, at approximately 10:30 p.m., the mother of the complainant left her five children with her downstairs neighbor, Ms. Rebecca Land, defendant\u2019s aunt, while the mother went out for the evening. At approximately 1 a.m., the mother returned to Ms. Land\u2019s apartment and each of her children was sleeping. She woke up her children and brought them upstairs to her apartment and put them back to sleep. .The mother went back downstairs to Ms. Land\u2019s apartment for a few minutes. When she returned upstairs again, she heard her four-year-old daughter, the complainant, crying in her bed. At trial, the mother testified, over defendant's objection, that she went to the complainant, who said, speaking quickly and loudly, \u201cAnthony [the defendant] hurt, he stuck his thing in my thing down there, put it in my boody [sic].\u201d The complainant pointed to her vaginal area when she made the statement. The mother examined the complainant\u2019s vaginal area and found it was red and swollen.\nThe mother took the complainant to the hospital where she was examined by Dr. Barbara Robinson. At trial, over defendant\u2019s objection, the doctor testified, \u201cMy diagnosis was that the [complainant] had the described erythema, hyperemia, and tenderness which were consistent with the alleged sexual abuse.\u201d The parties stipulated that specimens taken from complainant tested negative for the presence of spermatozoa or semen.\nDetectives William Wendt and James Comelison were called to the hospital to begin their investigation. They spoke with defendant, who was brought to the hospital by his aunt, Ms. Land, and he denied assaulting the complainant. At that time, defendant was 16 years old.\nThe detectives took defendant to the police station, where he told the detectives he came home that evening, to his aunt\u2019s apartment, at approximately 11:30 p.m., and saw the complainant sleeping in the bedroom. Defendant said he pulled down his pants, laid on top of the complainant, and inserted his \u201cthing\u201d into her. After he \u201ccame,\u201d complainant started to cry and he left the room.\nSubsequently, Assistant State\u2019s Attorney Stephen Botti interviewed defendant in the presence of Detective Comelison. Defendant signed a written statement that Botti prepared, which read as follows:\n\u201cWhile everyone was asleep in the house I went to the bed [complainant] was sleeping in. I got on top of [her] and put my penis into her vagina. I had an orgasm. [She] woke up right after my orgasm and started to cry. I left the room and [she] stayed in bed crying. I knew that [she] was 4 years old.\u201d\nPrior to trial, defendant moved to suppress his oral and written statements on the basis that they were made involuntarily. Botti, the assistant State\u2019s Attorney who prepared the written statement, did not testify at the hearing, and defendant did not raise an objection to his absence. Defendant's motion to suppress was denied. At trial, the jury heard testimony from Detectives Wendt and Comelison as to the substance of defendant\u2019s oral and written statements.\nThe complainant did not testify at trial, and the court did not conduct a hearing to determine whether she was a competent witness.\nAt the close of the State\u2019s case, defendant moved for a directed verdict which was denied. The defense then rested without presenting evidence.\nIn closing argument, defendant emphasized the fact that the complainant did not testify and stated:\n\u201cIf she made the statements to all those people, the police, her mother, whatever, why can\u2019t she tell you about it?\u201d\nIn rebuttal, the State explained the absence of the complainant in the following manner, without objection from the defendant:\n\u201cThis girl [was] four when it happened. You saw her, she is six now, she is still too young to come in here and tell [you what] happened. We can\u2019t wait til she is 21 to tell you about it, we just can\u2019t do that. * * *\nWe cannot present her testimony because she cannot testify in a court of law and it is only because of her age. If you believe for a second that she\u2019d come in here and tell you a different story about what happened? [sic] That is what counsel is asking you to believe.\u201d\nIn the jury instruction conference, defendant objected to the tendering of only three verdict forms: guilty of rape, guilty of attempted rape, and a general not guilty. Defendant argued that the court should tender not guilty of attempted rape and not guilty of rape verdict forms instead of a general not guilty verdict form. The court overruled the objection, finding that the jury would be confused with four verdict forms.\nThe jury found defendant guilty of attempted rape, and on October 31, 1985, defendant filed his motion for a new trial. The entry on the half sheet for October 31, 1985, reads, \u201cM/d new tri. Den.,\u201d which apparently means \u201cmotion/defendant new trial. Denied.\u201d The transcript of proceedings, however, established that there was no argument or ruling on the motion on October 31 and that defendant continued the hearing to November 27. The transcripts of subsequent court hearings on November 27, December 6, and December 9, also establish that there was no argument or ruling on defendant\u2019s motion on any of those dates. On December 9, the transcript reveals that defendant\u2019s counsel told the trial court the motion was argued and denied. From the half sheet, the court read, \u201cOctober 31st, motion for new trial is denied.\u201d The court then proceeded with a hearing in aggravation and mitigation and sentenced defendant to 10 years\u2019 imprisonment. Defendant filed a timely notice of appeal.\nOpinion\nI\nThe first issue, not raised by either party, is whether defendant\u2019s failure to obtain a ruling on his motion for new trial adversely affects the issues raised on appeal. In supplemental briefs addressing this issue, defendant argues it is in his best interest for the court to hear the appeal and the State argues that the trial court ruled on the motion, overlooking the discrepancy between the transcript and the half sheet. The State relies on People v. Maquet (1983), 113 Ill. App. 3d 109, 446 N.E.2d 929, for the proposition that when a docket entry is not contradicted by any other portion of the record, it will be presumed that the trial court acted accordingly. Maquet is inapplicable to the present case because the transcript of proceedings clearly contradicts the docket entry, and therefore, we will not presume that the trial court ruled on the motion.\nOur own research indicates that the failure to obtain a ruling on a motion for new trial waives the issues raised for appellate review. (See People v. Hornaday (1948), 400 Ill. 361, 81 N.E.2d 168.) Additionally, an objection made at trial is not sufficient to preserve issues for review; if the issues were not raised in a post-trial motion, they are waived., (People v. Jackson (1986), 145 Ill. App. 3d 626, 495 N.E.2d 1207.) Plain error is a limited exception to the waiver rule and will only be invoked when a substantial error deprived defendant of a fair trial. (People v. Szabo (1986), 113 Ill. 2d 83, 497 N.E.2d 995.) Consequently, the issues defendant raises on appeal, whether or not he objected at trial, can only be reviewed as to whether they amount to plain error. 107 Ill. 2d R. 615(a).\nII\nDefendant argues his motion to suppress oral and written statements was denied in error because the State did not call Assistant State\u2019s Attorney Botti, who prepared the written statement, to testify at the hearing. Although defendant contends Botti was a material witness, he did not object to Botti\u2019s absence at the hearing and, as a result, the issue is waived. Ill. Rev. Stat. 1983, ch. 38, par. 114-11(d); People v. Clay (1981), 98 Ill. App. 3d 534, 424 N.E.2d 814.\nDetective Wendt, who was a witness to the oral statements, and Detective Cornelison, who was a witness to the oral and written statements, testified at the hearing on the motion. The oral statement was made prior to the written statement and they were substantially the same. The evidence presented at the motion to suppress hearing supports the trial court\u2019s finding that the statements were made voluntarily. Accordingly, the failure to present Botti at the suppression hearing was not plain error.\nIll\nDefendant next argues that the mother\u2019s testimony concerning complainant\u2019s statement after the assault should not have been admitted in evidence because it was neither a corroborative complaint (Ill. Rev. Stat. 1983, ch. 38, par. 115-10) nor a spontaneous declaration (People v. Young (1980), 89 Ill. App. 3d 333, 412 N.E.2d 167). We agree that the mother\u2019s testimony was not a corroborative complaint because the complainant did not testify at trial. People v. Merideth (1987), 152 Ill. App. 3d 304, 503 N.E.2d 1132.\nThe three factors to consider in determining whether a statement is admissible as a spontaneous declaration are set forth in People v. Hatfield, (1987), 161 Ill. App. 3d 401, 514 N.E.2d 572. The factors apply in the present case as follows. First, the complainant\u2019s statement, her physical injuries, and defendant\u2019s statements establish that she was sexually abused, which was a startling event. (People v. Merideth (1987), 152 Ill. App. 3d 304, 503 N.E.2d 1132.) Second, less than two hours elapsed from the time of the abuse until complainant made the statement, and during part of that time, she was asleep. Thus, there was an absence of time to fabricate. (People v. Watson (1982), 107 Ill. App. 3d 691, 438 N.E.2d 453.) Third, complainant\u2019s statement and accompanying physical gestures establish the statement related to the abuse. We find that the evidence of the complainant\u2019s statement through her mother\u2019s testimony was properly admitted as a spontaneous declaration.\nIV\nDefendant argues the jury\u2019s exclusive fact-finding province was invaded when Dr. Robinson testified that the complainant\u2019s injuries \u201cwere consistent with the alleged sexual abuse.\u201d\nDefendant relies on People v. Schultz (1913), 260 Ill. 35, 102 N.E. 1045, where the supreme court found it was improper for a doctor to testify that in his opinion the victim\u2019s physical condition was the result of a \u201crape.\u201d Schultz is distinguishable because, here, the doctor did not testify that the complainant\u2019s injuries were the result of rape, but rather she testified they \u201cwere consistent with the alleged sexual abuse.\u201d Unlike Schultz, the doctor in the present case did not make a conclusion that a rape had occurred. Also, the doctor used the word \u201calleged,\u201d indicating that sexual abuse was not proven, which clearly did not invade the jury\u2019s fact-finding province. The testimony was proper because the doctor only testified as to what she personally observed, the complainant\u2019s physical condition, and did not make a conclusion as to whether the injuries were caused by rape. See People v. Hill (1965), 60 Ill. App. 2d 239, 208 N.E.2d 662.\nDefendant argues further that the State\u2019s reference to the doctor\u2019s testimony in closing argument was improper. The State paraphrased the doctor\u2019s testimony and stated, \u201cIn other words, she was raped.\u201d We find the State\u2019s reference to the testimony was legitimate argument based on the evidence. See People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246.\nV\nDefendant next argues that the State\u2019s alleged improper comments during closing argument denied him a fair trial. The comments, which were cited previously in this opinion, referred to complainant\u2019s absence as a testifying witness. Defendant waived this claim of error because he did not object to the comments at the time they were made. See People v. Lyles (1985), 106 Ill. 2d 373, 478 N.E.2d 291.\nIn rebuttal, the State may make comments that are invited by defendant\u2019s closing argument. (People v. Morando (1988), 169 Ill. App. 3d 716, 523 N.E.2d 1061.) The State\u2019s rebuttal argument was clearly invited by defense counsel\u2019s closing argument when he stated, \u201c[W]hy can\u2019t she tell you about it?\u201d Therefore, the comments were not improper.\nVI\nDefendant argues the trial court erred when it gave the jury only three verdict forms: guilty of rape, guilty of attempted rape, and a general not guilty. In the jury instruction conference, defendant requested a not guilty and guilty verdict form for both rape and attempted rape but did not tender to the court alternative verdict forms. On appeal, defendant raises for the first time the question of whether the trial court erred when it tendered an instruction that did not conform to Illinois Pattern Jury Instructions, Criminal, No. 26.01 (2d ed. 1981) (hereinafter IPI Criminal 2d No. 26.01). IPI Criminal 2d No. 26.01 requires that the jury receive both a not guilty and a guilty form of verdict for each offense charged, including lesser included offenses.\nGenerally, a party may not raise on appeal the failure to give an instruction unless he tendered it to the trial court. (People v. Huckstead (1982), 91 Ill. 2d 536, 440 N.E.2d 1248.) Additionally, it is within the trial court\u2019s discretion to tender a non-pattern jury instruction. (People v. Santiago (1987), 161 Ill. App. 3d 634, 515 N.E.2d 228.) The failure to tender a not guilty verdict form for each offense charged does not constitute a substantial defect that deprives a defendant of a fair trial. See People v. Smith (1988), 165 Ill. App. 3d 603, 518 N.E.2d 1382.\nIn the present case, defendant did not tender to the court alternative jury instructions. The court, in its discretion, gave the jury a non-pattern instruction. The jury instruction in question and the verdict forms themselves establish that the jury could find defendant not guilty of either rape or attempted rape by using the general not guilty form. Therefore, the failure to tender a not guilty form of verdict for both offenses, in accordance with IPI Criminal 2d No. 26.01, did not amount to plain error.\nVII\nDefendant argues the trial court erred when it sentenced him as an adult pursuant to section 2 \u2014 7(6)(c) of the Juvenile Court Act.\u2019 (Ill. Rev. Stat. 1983, ch. 37, par. 702 \u2014 7(6Xc) (now Ill. Rev. Stat. 1987, ch. 37, par. 805 \u2014 4(6Xc)).) Defendant raised the issue for the first time when he filed a \u201csupplemental brief\u201d several days prior to oral argument, in violation of Supreme Court Rule 352(f). (107 Ill. 2d R. 352(f).) In the interest of fundamental fairness, we address the issue because of the ramifications it may have on defendant\u2019s sentence. See People v. Hollins (1972), 51 Ill. 2d 68, 280 N.E.2d 710.\nDefendant was prosecuted as an adult for the rape charge and convicted of the lesser included offense of attempted rape. He was sentenced on December 9, 1985, under former section 2 \u2014 7(6Xc), which provided:\n\u201cIf after trial or plea the minor is convicted of an offense [other than murder, rape, deviate sexual assault or armed robbery when the armed robbery was committed with a firearm] ***. In sentencing the court shall have available any or all dispositions prescribed for that offense pursuant to Chapter V of the Unified Code of Corrections and Article 5 of the Juvenile Court Act.\u201d (Ill. Rev. Stat. 1983, ch. 37, par. 702-7(6)(c).)\nUnder this section, the trial court had the discretion to sentence a defendant either as an adult or a juvenile when he was convicted of an offense other than those listed in the section. (In re D.T. (1986), 141 Ill. App. 3d 1036, 490 N.E.2d 1361.) In the present case, the court, in its discretion, sentenced defendant as an adult to a term of imprisonment under section 5-^-8 \u2014 1(a)(4) of the Unified Code of Corrections (Ill. Rev. Stat. 1983, ch. 38, par. 1005 \u2014 8\u20141(a)(4)).\nOn appeal, defendant seeks to take advantage of an amendment to section 2 \u2014 7(6Xc) which became effective December 2, 1985, seven days prior to his sentencing hearing. (Ill. Rev. Stat. 1985, ch. 37, par. 702 \u2014 7(6Xc).) The amended section provided:\n\u201cIf after trial or plea the minor is only convicted of an offense [other than murder, aggravated criminal sexual assault, armed robbery when the armed robbery was committed with a firearm] *** the court must thereafter proceed pursuant to Sections 4 \u2014 7 or 4 \u2014 8 [of the Juvenile Court Act].\u201d (Ill. Rev. Stat. 1985, ch. 37, par. 702-7(6)(e).)\nThe amendment provided that the trial court must sentence a defendant as a juvenile when he was tried as an adult but convicted of an offense other than those listed in the section. Because the amendment was in effect prior to his sentencing hearing, defendant claims he should have been sentenced as a juvenile.\nDefendant ignores, however, the change in the named offenses of section 2 \u2014 7(6Xc) from rape to aggravated criminal sexual assault. Public Act 83 \u2014 1067 repealed the offense of rape and replaced it with criminal sexual assault and aggravated criminal sexual assault. (Pub. Act 83 \u2014 1067, eff. July 1, 1984; Ill. Rev. Stat. 1985, ch. 38, pars. 12\u2014 13, 12 \u2014 14.) The act also amended section 2 \u2014 7(6)(c), on which defendant relies, replacing rape with aggravated criminal sexual assault.\nIf any punishment is mitigated by the provisions of a new law, a defendant can consent to the application of the new provision if it became effective prior to his sentencing. (Ill. Rev. Stat. 1985, ch. 1, par. 1103; People v. Demeron (1987), 153 Ill. App. 3d 440, 505 N.E.2d 1222.) If, however, the provisions of the new law change the nature or substantive elements of the offense, rather than only the punishment, a defendant cannot take advantage of the mitigation of the punishment in the new law. (People v. Fisher (1985), 135 Ill. App. 3d 502, 481 N.E.2d 1233.) From our review of the elements of the former offense of rape and the new offenses of criminal sexual assault and aggravated criminal sexual assault, we find the act changed substantial elements of the former offense of rape.\nAdditionally, Public Act 83 \u2014 1067 was drafted with a savings clause that provides the act is only applicable to persons who commit offenses on or after its effective date of July 1, 1984. (Pub. Act. 83\u2014 1067, \u00a727, eff. July 1, 1984.) Defendant committed the offense on January 29, 1984, and therefore, the amendment in Public Act 83 \u2014 1067 to section 2 \u2014 7(6Xc) does not apply to his sentence.\nPublic Act 83 \u2014 1067 substantially changed the elements of the former offense of rape and is only applicable to offenses committed after July 1, 1984. Accordingly, defendant was properly sentenced as an adult pursuant to former section 2 \u2014 7(6)(c). Ill. Rev. Stat. 1983, ch. 37, par. 702-7(6Xc).\nLastly, we grant the State\u2019s request to assess the sum of $50 against defendant as costs for this appeal (Ill. Rev. Stat. 1985, ch. 53, par. 8(a); People v. Nicholls (1978), 71 Ill. 2d 166, 374 N.E.2d 194) and the sum of $25 as costs for oral argument (Ill. Rev. Stat. 1985, ch. 53, par. 8(a); People v. Agnew (1985), 105 Ill. 2d 275, 473 N.E.2d 1319).\nJudgment affirmed.\nPINCHAM and MURRAY, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE LORENZ" } ], "attorneys": [ "Randolph Stone, Public Defender, of Chicago (James N. Perlman, Assistant Public Defender, of counsel), for appellant.", "Richard M. Daley, State\u2019s Attorney, of Chicago (Thomas V. Gainer, Jr., and Anthony J. Carballo, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTHONY LAND, Defendant-Appellant.\nFirst District (5th Division)\nNo. 86-0039\nOpinion filed December 23, 1988.\nRehearing denied January 18, 1989.\nRandolph Stone, Public Defender, of Chicago (James N. Perlman, Assistant Public Defender, of counsel), for appellant.\nRichard M. Daley, State\u2019s Attorney, of Chicago (Thomas V. Gainer, Jr., and Anthony J. Carballo, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0251-01", "first_page_order": 273, "last_page_order": 283 }