The defendants' final contention on appeal is that it was error for the trial court during the sentencing hearing to permit the State's introduction of evidence of a similar charge involving another daughter, which was then pending against the defendants. They argue that evidence of mere charges is improper and note that the trial judge did consider this evidence in determining the defendants' sentence. The State responds that the cases upon which the defendants rely are People v. Kennedy (1978), 66 Ill. App.3d 35, and People v. Williamson (1979), 69 Ill. App.3d 1037, whose conclusions were rejected by our court in People v. Fritz (1979), 77 Ill. App.3d 1, rev'd on other grounds (1981), 84 Ill.2d 72. The State urges that the evidence was presented permissibly on the question of probation and was not for consideration in determining the length of the sentence to be imposed. The State further notes that the evidence presented contains proof of the underlying criminal conduct.
But that is not the universal rule. See, e. g., People v. Hopkins, Ill.Supr., 52 Ill.2d 1, 284 N.E.2d 283, 285-86 (1972); People v. Fritz, Ill.App.Ct., 77 Ill. App.3d 1, 32 Ill.Dec. 506, 509, 395 N.E.2d 736, 739 (1979). Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965) is the base for Hughes' argument.
(See also People v. Meeks (1980), 81 Ill.2d 524, 535; People v. Poll (1980), 81 Ill.2d 286, 290.) The various panels of the appellate court have not been entirely harmonious in their treatment of the subject (compare People v. Fritz (1979), 77 Ill. App.3d 1, with People v. Kennedy (1978), 66 Ill. App.3d 35), and the State urges that we clarify the extent to which evidence of criminal conduct may be introduced at sentencing hearings even though that misconduct has not been the subject of prosecution and conviction. We believe, however, that adequate guidelines are to be found in the provisions of chapter V of the Unified Code of Corrections (Ill. Rev. Stat. 1977, ch. 38, pars. 1005-1-1 through 1005-9-3) and our earlier opinions.
On appeal, the Appellate Court for the Second District affirmed. ( 77 Ill. App.3d 1.) We allowed the defendant's petition for leave to appeal.
¶ 5 Defendant cites People v. Kennedy, 66 Ill. App. 3d 35, 39-40 (1978), where the Fourth District held that prior arrests may not be considered in determining whether a defendant should be placed on probation. That position was expressly rejected by this court. See People v. Fritz, 77 Ill. App. 3d 1, 6 (1979), rev'd on other grounds by People v. Fritz, 84 Ill. 2d 72, 82 (1981). Moreover, we note that additional authority exists that does not support the Fourth District's position.
( People v. Sexton (1987), 162 Ill. App.3d 607, 515 N.E.2d 1359.) Finally, the failure of a young sexual assault victim to make a prompt complaint is understandable, since children have a natural sense of shame, fear, guilt, and embarrassment. People v. Fritz (1979), 77 Ill. App.3d 1, 395 N.E.2d 736. • 2 In the instant case, we find that the evidence was not so improbable as to raise a reasonable doubt about the defendant's guilt.
" Later, in reliance upon Godsey, the court in People v. Fritz (1979), 77 Ill. App.3d 1, 395 N.E.2d 736, rev'd (1981), 84 Ill.2d 72, 417 N.E.2d 612, in which the trial court had ruled that the spousal privilege had been waived when the wife took the stand to testify for the defendant, stated that the wife's taking the stand to testify waived merely the right to prevent one's spouse from testifying and that it did not waive the defendant's objection to the State's improperly eliciting a confidential communication. In Fritz the defendant contended that it had been improper to allow the State to cross-examine the defendant's wife about certain conversations between her and the defendant since the conversations had fallen within the marital privilege.
As noted by the majority, arrests or pending charges will not ordinarily be considered in determining the length of a sentence. (See People v. Fritz (1979), 77 Ill. App.3d 1, 6, rev'd on other grounds (1981), 84 Ill.2d 72; People v. Smothers (1979), 70 Ill. App.3d 589, 591; see also People v. Siefke (1981), 97 Ill. App.3d 14.) Generally it is presumed that a sentencing judge will disregard information improperly included within a presentence report, but that presumption is rebutted if the record reflects the court did, in fact, consider such evidence. ( E.g., People v. Brown (1980), 91 Ill. App.3d 163 (court made specific reference to evidence); People v. De Groot (1968), 108 Ill. App.2d 1 (court overruled objection to evidence).)
Defendant cites People v. Smothers (1979), 70 Ill. App.3d 589, 388 N.E.2d 1114, for the proposition that arrests without convictions are not to be considered in a presentence report. Clearly, to the extent that the defendant was seeking probation at the sentencing hearing, evidence of all previous conduct, including arrest, is relevant to the decision of whether or not, within the discretion of the judge, probation is to be granted. ( People v. Fritz (1979), 77 Ill. App.3d 1, 395 N.E.2d 736.) In Fritz our court stated at page 6:
Although she delayed in reporting defendant's acts, she stated that she did so because she was embarrassed and afraid of what other people would say or do. Such factors arise naturally in this type of incident and operate to excuse a delay in reporting the incident. ( People v. Fritz (1979), 77 Ill. App.3d 1, 395 N.E.2d 736; People v. Padfield (1974), 16 Ill. App.3d 1011, 307 N.E.2d 183.) Additionally, the victim's testimony is, at least in part, corroborated by defendant's statements to police.