Mr. CHIEF JUSTICE UNDERWOOD delivered the opinion of the court: Defendant, Jim E. Myers, was convicted in the circuit court of Macon County of deviate sexual assault; his conviction was affirmed by the Appellate Court for the Fourth Judicial District ( 92 Ill. App.2d 129), and this court denied leave to appeal. ( 38 Ill.2d 629.) Defendant's subsequent amended petition for post-conviction relief (Ill. Rev. Stat. 1967, ch. 38, par. 122-1 et seq.) was dismissed on the State's motion without an evidentiary hearing, and defendant appeals directly to this court. See 43 Ill.2d R. 651(a).
The State has the burden to prove beyond a reasonable doubt that the act of sexual intercourse and deviate sexual conduct was performed forcibly and against the will of the victim. ( People v. DeFrates (1965), 33 Ill.2d 190 N.E.2d 467; People v. Sanders (1967), 82 Ill. App.2d 159, 227 N.E.2d 79; People v. Myers (1968), 92 Ill. App.2d 129, 234 N.E.2d 811.) However, "useless or foolhardy" acts of resistance are not necessary. ( People v. De Frates (1965), 33 Ill.2d 190, 194, 210 N.E.2d 467, 469.
Under all the circumstances brought out in this case, we feel that setting the minimum sentence at seven years and the maximum at ten years is not in the best interests of either the community or the appellant. People v. Myers, 92 Ill. App.2d 129, 234 N.E.2d 811. Accordingly, the minimum sentence is reduced from seven years to two years. The judgment and sentence are modified to provide that the sentence imposed on appellant be confinement to the penitentiary for a term of not less than two years nor more than ten years, and as so modified, the judgment is affirmed.