                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Solis, 2013 IL App (1st) 102756




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    DARLENE SOLIS, Defendant-Appellant.



District & No.             First District, Second Division
                           Docket No. 1-10-2756


Filed                      March 12, 2013


Held                       Defendant’s conviction for prostitution was upheld over her contention
(Note: This syllabus       that the prostitution statute was unconstitutional to the extent that it
constitutes no part of     improperly merged the inchoate offense of attempted prostitution with the
the opinion of the court   completed offense of prostitution, since prostitution is committed when
but has been prepared      an agreement is made to perform an act of sexual penetration for money,
by the Reporter of         not just when the act is actually performed.
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Cook County, No. 10-CR-10964; the
Review                     Hon. James M. Obbish, Judge, presiding.



Judgment                   Affirmed.
Counsel on                 Michael J. Pelletier, Alan D. Goldberg, and Melinda Grace Palacio, all of
Appeal                     State Appellate Defender’s Office, of Chicago, for appellant.

                           Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                           Annette Collins, and Veronica Calderon Malavia, Assistant State’s
                           Attorneys, of counsel), for the People.



Panel                      JUSTICE QUINN delivered the judgment of the court, with opinion.
                           Presiding Justice Harris and Justice Simon concurred in the judgment and
                           opinion.



                                             OPINION

¶1          Following a bench trial, defendant Darlene Solis was found guilty of prostitution, then
        sentenced to 27 months’ imprisonment. On appeal, defendant contends that the prostitution
        statute is unconstitutional because it improperly merges the inchoate offense of attempted
        prostitution with the completed offense of prostitution. For the following reasons, we affirm.
¶2          On the evening of June 1, 2010, Chicago police officer George Dunn was driving a
        covert vehicle down North Avenue when he saw defendant standing on the north side of the
        street and waving at passing vehicles. He turned around and parked about 30 feet away from
        her, and she walked to his car and entered it. Inside the car, Officer Dunn asked defendant
        if she had a place to go, and she responded, “well, what do you want, a blow job?” The
        officer took this to mean oral copulation and replied in the affirmative. He then asked
        defendant “what she needed.” She requested $20, and he agreed to the amount, then drove
        her up the block to his waiting partner, who arrested her. The trial court found defendant
        guilty of prostitution, a Class 4 felony due to a prior prostitution conviction, and sentenced
        her to 27 months’ imprisonment.
¶3          In this appeal, defendant challenges the constitutionality of her felony conviction for
        prostitution. She claims that the inclusion of the phrase “performs, offers or agrees to
        perform” in the prostitution statute improperly combines both an inchoate and a completed
        offense, i.e., the Class A misdemeanor of attempted prostitution and the Class 4 felony of
        prostitution. As a result, she claims, the statute: (1) abrogates section 8-5 of the Criminal
        Code of 1961 (Code) (720 ILCS 5/8-5 (West 2010)); (2) violates the proportionate penalties
        clause of the Illinois Constitution; and (3) creates an ambiguity which must be resolved in
        her favor under the rule of lenity.
¶4          The State responds that in People v. Thompson, 85 Ill. App. 3d 964 (1980), this court
        rejected defendant’s argument that an “offer or agreement to perform” a sexual act
        constitutes the inchoate offense of attempted prostitution. The State also responds that under

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     the clear and unambiguous language of section 11-14(a) of the Code (720 ILCS 5/11-14(a)
     (West 2010)), an agreement to perform an act of sexual penetration for anything of value
     constitutes the completed offense of prostitution.
¶5        The State initially maintains that defendant has forfeited this issue on appeal because she
     failed to raise it in the trial court. We disagree. Defendant claims that the prostitution statute
     is unconstitutional, and a challenge to the constitutionality of a statute may be raised at any
     time. People v. McCarty, 223 Ill. 2d 109, 123 (2006). Under the circumstances, the bar of
     forfeiture does not prevent us from addressing the merits of defendant’s claim.
¶6        In turning thereto, we observe that statutes are presumed to be constitutional and that it
     is the burden of the party challenging the statute to demonstrate its invalidity. People v.
     Graves, 207 Ill. 2d 478, 482 (2003). A reviewing court has a duty to construe statutes in a
     manner that upholds their validity and constitutionality where it reasonably can be done.
     Graves, 207 Ill. 2d at 482. We review the constitutionality of a statute de novo. Graves, 207
     Ill. 2d at 482.
¶7        Under the Code, a person commits an act of prostitution when she “performs, offers or
     agrees to perform any act of sexual penetration *** for any thing of value.” 720 ILCS 5/11-
     14(a) (West 2010). A person commits attempt when, with intent to commit a specific
     offense, she does any act that constitutes a substantial step toward the commission of that
     offense. 720 ILCS 5/8-4(a) (West 2010). Here, defendant was found guilty of prostitution in
     that she “KNOWINGLY AGREED TO PERFORM” an act of sexual penetration upon
     Officer Dunn for money. Her conviction was also elevated to a Class 4 felony due to a prior
     prostitution conviction. 720 ILCS 5/11-14(b) (West 2010).
¶8        Defendant now challenges her conviction on the grounds that the prostitution statute is
     unconstitutional, claiming that an agreement to perform an act of sexual penetration for
     money, such as occurred here, constitutes both the completed offense of prostitution and the
     inchoate offense of attempted prostitution. In Thompson, 85 Ill. App. 3d at 967, a case
     analogous to the one at bar, defendant was convicted of prostitution and similarly claimed
     that the statute defining the offense was unconstitutional because it defined an inherently
     inchoate offense as a specific substantive offense. Defendant argued that “an offer or an
     agreement to perform an act of sexual intercourse for money is an inchoate offense because
     there has been no completion of the act of intercourse.” Thompson, 85 Ill. App. 3d at 967.
     This court disagreed, stating:
              “Our legislature has not attempted to treat an offer or agreement to perform an act of
          intercourse as the completed act itself. It has simply defined three categories of
          prohibited conduct which constitute the crime of prostitution. The legislature apparently
          has determined that the offer or the agreement to perform a sexual act is as serious a
          social problem as the act itself.” Thompson, 85 Ill. App. 3d at 967.
     We thus affirmed defendant’s conviction for prostitution. Thompson, 85 Ill. App. 3d at 969.
¶9        Defendant’s argument in the case at bar suffers from the same flaw as the one raised in
     Thompson in that it assumes the offense of prostitution is only “completed” when defendant
     actually performs an act of sexual penetration, thereby equating prostitution with a sexual
     act. As this court made clear in Thompson, however, the offense of prostitution is comprised

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       of three types of prohibited conduct, one of which is an agreement to perform an act of
       sexual penetration for money. Thompson, 85 Ill. App. 3d at 967.
¶ 10       Defendant, nonetheless, maintains that Thompson was wrongly decided and cannot be
       “squared” with the supreme court’s ruling in People v. Wallace, 57 Ill. 2d 285 (1974). In that
       case, defendants were convicted of attempted bribery and claimed on appeal that the attempt
       provision of the Code did not pertain to the offense of bribery. Wallace, 57 Ill. 2d at 287,
       291. The supreme court rejected their claim, noting that factual situations may exist in which
       the conduct of a defendant does not amount to bribery, but might be construed as a
       substantial step toward the completion of the offense. Wallace, 57 Ill. 2d at 292. The supreme
       court held that absent a manifest legislative intent to exclude bribery from the purview of the
       attempt provision, defendants’ indictment charging attempted bribery was valid. Wallace,
       57 Ill. 2d at 292.
¶ 11       Defendant argues that the bribery statute in Wallace, like the prostitution statute, merged
       both the inchoate and completed offense into a single substantive offense, and that the
       supreme court held that “this did not negate application of the attempt statute to those facts.”
       In making this argument, it is clear that defendant has completely misconstrued Wallace. The
       supreme court did not hold in Wallace that the bribery statute merged the inchoate and
       completed offense; to the contrary, the supreme court expressly recognized attempted bribery
       as a distinct offense which may occur when a defendant’s conduct does not constitute
       bribery, but might be construed as a substantial step toward the completion of the offense.
       Wallace, 57 Ill. 2d at 292.
¶ 12       That said, it is not entirely clear from defendant’s brief why she believes that Wallace and
       Thompson cannot be squared. Although she points out that the State “admits” the legislature
       provided no manifest intent to exclude the offense of prostitution from the purview of the
       attempt statute, she does not explain the import of this admission and simply concludes that
       “this was a quintessential exemplar of an inchoate offense.” We independently ascertain no
       conflict between Wallace and Thompson, and thus reject defendant’s claim as inconsistent
       with the latter. Thompson, 85 Ill. App. 3d at 967.
¶ 13       Having so concluded, we need not address the remainder of defendant’s arguments which
       rely on her faulty interpretation of the prostitution statute as encompassing both the inchoate
       and completed offense. For the reasons stated, we affirm the judgment of the circuit court of
       Cook County.

¶ 14      Affirmed.




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