People v. Sutton , 2022 IL App (5th) 190160-U ( 2022 )

2022 IL App (5th) 190160-UNOTICE
NOTICE
Decision filed 04/11/22. The
This order was filed under
text of this decision may be NO. 5-19-0160
Supreme Court Rule 23 and is
changed or corrected prior to
not precedent except in the
the filing of a Petition for IN THE limited circumstances allowed
Rehearing or the disposition of
under Rule 23(e)(1).
the same.
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Christian County.
)
v. ) No. 15-CF-05
)
AUSTIN R. N. SUTTON, ) Honorable
) Bradley T. Paisley,
Defendant-Appellant. ) Judge, presiding.
______________________________________________________________________________
PRESIDING JUSTICE BOIE delivered the judgment of the court.
Justices Moore and Wharton concurred in the judgment.
ORDER
¶1 Held: We affirm the circuit court’s judgment where the sentence was not an abuse
of discretion. The sentence of 30 years for the defendant who was a minor at the
time of the offense did not violate the proportionate penalties clause and was
not excessive. Further, the circuit court did not improperly consider a factor,
psychological harm or threatened serious psychological harm, inherent in the
offense.
¶2 Pursuant to a negotiated plea of guilty, the defendant, Austin Sutton, was convicted of
aggravated criminal sexual assault of a child (720 ILCS 5/11-1.30(b)(ii) (West 2014)) and
sentenced to 30 years’ imprisonment. On appeal, the defendant contends that the circuit court
abused its discretion at sentencing by relying on a factor implicit in the offense—the psychological
harm or threat of serious psychological harm his actions caused to the victim. The defendant further
contends that the 30-year sentence violates article I, section 11, of the Illinois Constitution (Ill.
Const. 1970, art. I, § 11), commonly referred to as the proportionate penalties clause. Finally, the
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defendant argues that his 30-year sentence was excessive and therefore an abuse of the circuit
court’s discretion. For the following reasons, we affirm the judgment of the circuit court.
¶3 I. Background
¶4 The facts necessary to our disposition of this appeal are as follows. On January 5, 2015,
the State filed an information charging the defendant with one count of aggravated criminal sexual
assault, in violation of section 11-1.30(b)(ii) of the Criminal Code of 2012 (Criminal Code). 720
ILCS 5/11-1.30(b)(ii) (West 2014). The State alleged that the offense occurred between December
16, 2012, and October 1, 2014, at a time when the defendant was under 17 years of age and his
victim, S.M., was between 9 and 13 years of age. The State alleged that the defendant placed his
penis in the anus of S.M., by the use of force. Because he was over 15 years old at the time of the
offense, section 5-130(1)(a) of the Juvenile Court Act of 1987 required the defendant to be
prosecuted as an adult under an excluded jurisdiction statute, instead of in juvenile court. 705 ILCS
405/5-130(1)(a) (West 2014). The charge of aggravated criminal sexual assault was a Class X
felony punishable by 6 to 30 years’ incarceration (730 ILCS 5/5-4.5-25(a) (West 2014)) in the
Illinois Department of Corrections (IDOC).
¶5 On May 5, 2015, the defendant appeared before the circuit court and entered a partially
negotiated guilty plea to the aggravated criminal sexual assault charge. According to the terms of
the plea agreement, the State would not file any additional charges against the defendant based on
any crimes of which they were aware; however, the State could use any uncharged offenses in
aggravation at the defendant’s sentencing hearing. There was no agreement as to the sentence
which would be imposed.
¶6 The defendant’s sentencing hearing was held on August 11, 2015. At sentencing, the circuit
court considered the statutory aggravating factors, finding that the defendant’s conduct caused or
threatened serious psychological harm, that the defendant had a history of prior juvenile
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delinquency, and that the sentence was necessary to deter others. In addition, the circuit court cited
the defendant’s pattern of committing the crime of sexual assault against multiple victims, the
potential risk posed to the community, and the court’s duty to protect the public from future similar
conduct as factors it relied upon.
¶7 Further, the circuit court considered the defendant’s sex offender evaluation (evaluation).
In the course of the evaluation, the defendant stated that at the age of 11, he fondled a 3-year-old
female cousin, remarking that during a game of hide-and-seek, he “took advantage of the moment”
and “fondled her vagina” by way of digital insertion. The defendant also stated that he sexually
assaulted his sister, S.S., when he was 15 years old and she was 13 years old, by rubbing her legs
and vagina. He denied insertion. The defendant also admitted to sexually assaulting his cousin S.M.,
when she was 11 years old and he was 16 years old (the present charge), and that he tried to insert
his penis into her anus by bribing her with electronics, but that they were interrupted by her parents.
He further stated that he had forced a female “once or twice” to perform oral sex on himself. The
defendant attributed these impulses to being bullied at school, which caused him to become more
“aggressive.”
¶8 The evaluation also detailed the defendant’s statements to the police and the Illinois
Department of Children and Family Services (DCFS). The defendant told the police that he had
rubbed S.S.’s vagina over her clothes, that he had sexual thoughts about S.S., and that he had
repeatedly masturbated while thinking about touching S.S. The defendant also made her perform
oral sex on him about 30 times. The defendant then recounted that he and S.S. would share a bed,
that he had inserted his penis into her about 20 to 30 times, occasionally ejaculating inside of her.
The defendant admitted that he often used force, pushing down S.S.’s arms and legs. He also
performed oral sex on S.S. 10 times. However, S.S. did not disclose these assaults during a forensic
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interview. S.S. disclosed that she woke up with the defendant reaching his hand up her leg toward
her vagina.
¶9 Regarding the defendant’s cousin, S.M., the defendant stated that he would let her use his
phone or electronics in exchange for her masturbating him or performing oral sex on him. He would
digitally penetrate her and force her to commit oral sex. He stated that an earlier statement he gave
to DCFS where he had indicated that he had done this with S.M. about 60 times was likely accurate.
He also admitted that he had “regular sex” with S.M. over 30 times, pinning her down by sitting on her
shins while he unbuttoned his pants. He demanded that S.M. not tell her father or else they would
both be put into foster care and that she could go to jail. The defendant also recounted another time
when he forced a 16-year-old girl to perform oral sex on him.
¶ 10 The defendant told the evaluator that he was at an in-patient psychiatric treatment facility
when he was arrested on the current charge. The defendant stated that he had also received three
years of sex offender treatment after he molested a three-year-old girl in Springfield.
¶ 11 The evaluation went on to indicate that the defendant’s involvement with DCFS dated back
to when he was three or four years old, when he tried to light his family’s house on fire by igniting
toys that he had piled in the middle of the living room. The defendant claimed that he had been
sexually abused by his father, in that his father had the defendant perform oral sex on him, and that
he was a victim of physical abuse as a child. He also claimed to have a learning disability and a
behavioral disorder. He expressed a desire for additional sex offender treatment.
¶ 12 In assessing the defendant, the evaluator admitted that “there is very little empirical
evidence to support any measure available to assess predictions of risk for adolescent sexual
offenders,” and thus “several different measures [were performed] with the purpose of giving
decision makers a wide range of scale results to review.” On the Juvenile Sexual Offense
Recidivism Risk Assessment Tool - II (JSORRAT-II), the defendant scored a 13. The test scale
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maximum is 8+, indicative of “moderate-high risk.” The evaluator conceded that “high” risk is not
available as a result on this test, but if it were, it would have been given to the defendant.
¶ 13 The defendant was also given the “Sexual Adjustment Inventory” (SAI), a test intended to
“identify sexually deviate and paraphiliac behavior in people accused or convicted of sexual
offenses.” The defendant’s scores on the “child molestation” and “sexual assault” categories were
in the “severe” range, suggesting pedophiliac thoughts, and that the defendant is a “person who
could be dangerous” and presents as “sexually assaultive.” The defendant also scored “severe” on
the “violence” category, and that the defendant “could be dangerous to himself and others.” The
defendant scored “severe” in antisocial attitudes, distress, and impulsiveness. With respect to
impulsiveness, the evaluator noted that “impulsive sexual behavior can result in numerous negative
consequences.”
¶ 14 Finally, the evaluation stated that the defendant was given the Sexual Violence Risk-20
(SVR-20) and was rated as a “high risk to reoffend.” He was also rated a high risk to reoffend on
the Estimate of Risk of Adolescent Sexual Offense Recidivism Version 20 (ERASOR).
¶ 15 The defendant’s mother testified at the sentencing hearing that the defendant had started a
fire at their house when he was four years old and that he received counseling following that event.
She also testified that the defendant had engaged in sexually deviant behavior in Sangamon County
in 2007, when he was 10 years old, and received four years of counseling. She said her son often
projected a veneer of change, and that he was skilled at “covering his tracks,” but that he was not
getting any better. She estimated that the defendant had received 5½ to 6 years of counseling.
¶ 16 At the sentencing hearing, the defendant admitted to having sexual intercourse with his
sister, S.S., 2 to 3 times, maybe 4, not the 60 to 80 times he initially told the police. He attributed
the exaggeration to the police “hounding” him while he was being questioned. He also admitted
to sexually abusing his cousin, S.M., 7 to 8 times, not the 90 to 100 times he told police.
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¶ 17 The defendant claimed to have been sexually abused by his father at the age of four. He
claimed that the counseling he received after he sexually abused the three-year-old child in
Sangamon County was not beneficial because, in his estimation, he was “so young.” The defendant
admitted that he had received counseling between the ages of 10 to 15, and that he committed the
present sexual assault when he was 16. However, the defendant claimed now that he was “older,”
he no longer had the sexual impulses. The defendant attributed his sexually assaultive behavior to
being angry because his father had sexually abused him and that his father had passed away. The
defendant also stated that engaging in the sexual conduct made him “feel more in power.”
¶ 18 The State recommended a sentence of 30 years’ incarceration. The defendant’s counsel
sought the minimum sentence of six years’ incarceration. In his statement in allocution, the
defendant stated that “due to the fact I was growing and not fully developing, and not fully
developed yet, that, uh, I, I should—I do need help.”
¶ 19 In imposing sentence, the circuit court remarked that counseling to that point had not
helped the defendant, and that it did not believe that counseling was likely ever going to help. The
circuit court found that the defendant’s conduct threatened serious harm to the victim, though the
court mused that the harm would not likely manifest itself for some years given the age of the
victim. The circuit court considered the defendant’s history of prior delinquency (the defendant
was adjudicated for sexually assaulting a 3-year-old girl when he was 10 years old) and the need
for deterrence, as well as the risk that the defendant posed to the community. The circuit court
noted the sex offender evaluation. It recognized that because of the uncertainty in any one test,
empirically, for a youthful sex offender, the defendant was given an array of tests. In reviewing
these test results, the circuit court noted the multiple indicators of the defendant’s sexual behavior
and risk of reoffending. The circuit court commented that the defendant had been given a break in
terms of how many sexual offenses he could have been charged with, noting that with the offenses
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he had admitted to committing, he could have faced “decades and decades and decades” in prison
instead of the maximum 30 years for the one offense he pleaded guilty to.
¶ 20 Before the circuit court sentenced the defendant, it noted several factors that it considered.
These included the defendant’s age; the factual basis that was presented; the presentence
investigation report (PSI); the sex offender evaluation; the history, character, and attitude of the
defendant; the evidence and arguments; and the statement in allocution presented during the
sentencing hearing. The circuit court also heard testimony from the defendant’s mother who
testified on behalf of the State, and the defendant, who testified on his own behalf. Taking all of
that into consideration, the circuit court imposed a sentence of 30 years’ incarceration in IDOC.
¶ 21 The defendant filed a motion for reduction of sentence on August 11, 2015, an amended
motion to reconsider sentence on September 10, 2015, a second amended motion to reconsider
sentence on January 5, 2016, and a third amended motion to reconsider sentence on March 14,
2016. A hearing was held on the third amended motion to reconsider sentence on March 14, 2016,
and the circuit court denied the defendant’s motion.
¶ 22 The defendant filed a notice of appeal on March 15, 2016. On March 14, 2018, this court
vacated the circuit court’s March 14, 2016, order denying the defendant’s postplea motion and
remanded this matter to the circuit court for strict compliance with Illinois Supreme Court Rule
604(d) (eff. July 1, 2017). People v. Sutton, No. 5-16-0113 (2018) (unpublished summary order
under Illinois Supreme Court Rule 23(c)(2)). This court further directed that the defendant be
permitted to file a new postplea motion if the defendant or his counsel concluded that a new motion
was necessary.
¶ 23 On December 11, 2018, the defendant filed another third amended motion to reconsider
sentence (postplea motion) along with a compliant Rule 604(d) certificate. The issues raised in the
postplea motion were (1) that the circuit court erred in failing to consider the defendant’s age, level
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of maturity, and the factors attendant thereto; (2) that the circuit court erred in relying heavily on
the actuarial risk assessment tools used by the evaluator to determine that the defendant posed a
risk to the community, as they were not empirically valid when applied to juveniles; (3) that the
circuit court ignored the defendant’s rehabilitative potential; (4) that the circuit court based its
sentence on the improper factor that the defendant had received considerable “breaks” from the
State; and (5) that the defendant’s sentence violated the eighth amendment to the United States
Constitution and was excessive.
¶ 24 A hearing was held on the defendant’s postplea motion on April 11, 2019, and the motion
was denied by the circuit court. This appeal follows.
¶ 25 II. Analysis
¶ 26 A. Consideration of a Factor Inherent in the Offense
¶ 27 On appeal, the defendant first argues that the circuit court improperly considered, in
aggravation, that the defendant’s conduct caused or threatened serious psychological harm. The
defendant argues that there was no evidence presented at sentencing that S.M. was psychologically
harmed by the defendant’s actions, nor circumstances that would be expected to cause
psychological harm beyond that inherent in the charge of aggravated criminal sexual assault.
¶ 28 The State argues that the defendant waived this issue as the defendant failed to object to
the circuit court’s consideration of the aggravating factor and did not raise the issue in his postplea
motion. To preserve a sentencing issue for appeal, a defendant must both object at the sentencing
hearing and raise the issue in a motion to reduce sentence. People v. Hillier, 237 Ill. 2d 539, 544
(2010); see also 730 ILCS 5/5-4.5-50(d) (West 2018). However, our supreme court has held that
counsel is not required to interrupt the circuit court as it discusses factors in aggravation in order
to preserve a claim of error regarding the court’s remarks. People v. Saldivar, 113 Ill. 2d 256, 266
(1986). While a failure to object to the circuit court’s commentary when pronouncing the
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defendant’s sentence has been excused, the defendant here also failed to raise his claim in a
postplea motion. Due to the defendant’s failure to raise this issue at all in the circuit court, we
agree with the State that the defendant’s argument was forfeited.
¶ 29 In his reply brief, however, the defendant requests review of this issue under the plain error
doctrine of Illinois Supreme Court Rule 615(a) (eff. Jan. 1, 1967), which permits this court to
address a forfeited issue if the evidence is closely balanced or the error affects substantial rights.
People v. Sargent, 239 Ill. 2d 166, 189 (2010). The State argues that the defendant also waived
plain error review as it was not raised in his initial brief to this court. Pursuant to Illinois Supreme
Court Rule 341(h)(7) (eff. May 25, 2018), “[p]oints not argued are forfeited and shall not be raised
in the reply brief ***.” However, we disagree that the defendant’s failure to include his plain error
argument in his opening brief precludes us from considering it. The Illinois Supreme Court has
recognized that a purpose of the plain error rule is to preserve the integrity and the reputation of
the judicial process. People v. Gard, 158 Ill. 2d 191, 205 (1994). As such, the Illinois Supreme
Court has considered a defendant’s plain error argument raised for the first time in a reply brief.
See People v. Thomas, 178 Ill. 2d 215, 235 (1997). The State preemptively addressed plain error
in its response. Therefore, we find it is consistent with the purpose of the plain error rule and
fundamental fairness to address this issue under the doctrine of plain error.
¶ 30 The doctrine of plain error may be applied to remedy errors so plain and prejudicial that
failure to object to them is not a waiver for purposes of appeal. People v. Davis, 145 Ill. 2d 240,
251 (1991). In the sentencing context, a defendant must show either that (1) the evidence at the
sentencing hearing was closely balanced, or (2) the error was so egregious as to deny the defendant
a fair sentencing hearing. Id. The burden of proof rests with the defendant to establish each prong
of the plain error doctrine. People v. Naylor, 229 Ill. 2d 584, 593 (2008).
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¶ 31 The defendant does not argue that the evidence at the sentencing hearing was closely
balanced but argues that the circuit court’s consideration of a factor inherent in the offense as an
aggravating factor at sentencing is reviewable under the second prong of the plain error doctrine
because it affects the defendant’s fundamental right to liberty. See People v. Martin, 119 Ill. 2d
453, 458 (1988). The second scenario is potentially present here, because when a circuit court
considers erroneous aggravating factors in determining the appropriate sentence of imprisonment,
the defendant’s fundamental right to liberty is unjustly affected, which is a serious error. People v.
James, 255 Ill. App. 3d 516, 531 (1993). For plain error to exist, however, we must first decide
that an error actually occurred. Naylor, 229 Ill. 2d at 593.
¶ 32 Imposition of a sentence is normally within a circuit court’s discretion, and there is a strong
presumption that the circuit court based its sentencing determination on proper legal reasoning,
such that the circuit court’s sentencing decision is reviewed with great deference. People v.
Chaney, 379 Ill. App. 3d 524, 527 (2008). Nevertheless, whether the circuit court improperly
considered a factor implicit in the offense is reviewed de novo. People v. Phelps, 211 Ill. 2d 1, 12
(2004). The burden is on the defendant to affirmatively establish that the sentence was based on
improper considerations. People v. Dowding, 388 Ill. App. 3d 936, 942-43 (2009).
¶ 33 Generally, a factor implicit in the offense for which the defendant has been convicted
cannot be used as an aggravating factor in sentencing for that offense, absent a clear legislative
intent to accomplish that result. People v. Ferguson, 132 Ill. 2d 86, 97 (1989). Such dual use of a
single factor is often referred to as a “double enhancement.” People v. Gonzalez, 151 Ill. 2d 79, 85
(1992). The prohibition against double enhancements assumes that, in designating the appropriate
range of punishment for a criminal offense, the legislature considered the factors inherent in the
offense. People v. Rissley, 165 Ill. 2d 364, 390 (1995). However, the rule should not be applied
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rigidly, because public policy requires that a sentence be varied according to the circumstances of
the offense. People v. Bunning, 2018 IL App (5th) 150114, ¶ 15.
¶ 34 Section 5-5-3.2 of the Unified Code of Corrections (Unified Code) provides that a
sentencing court may consider certain factors as reasons to impose a more severe sentence,
including whether “the defendant’s conduct caused or threatened serious harm.” 730 ILCS 5/5-5-
3.2(a)(1) (West 2018). When considering whether the defendant’s conduct “threatened serious
harm,” the sentencing court compares the conduct in the case before it against the minimum
conduct necessary to commit the offense. People v. Hibbler, 2019 IL App (4th) 160897, ¶ 67. The
court must examine “the nature and circumstances of the offense, including the nature and extent
of each element of the offense as committed by the defendant.” (Internal quotation marks omitted.)
Id. “The commission of any offense, regardless of whether the offense itself deals with harm, can
have varying degrees of harm or threatened harm.” Saldivar, 113 Ill. 2d at 269. Accordingly, the
sentencing court’s attention should be directed at the degree or gravity of the defendant’s conduct,
the force employed, and the nature and circumstances of the offense. Id.¶ 35 In the present case, the circuit court pronounced, at sentencing, as follows:
“I don’t think anybody can dispute the fact that [the defendant’s conduct] at least
threatened serious harm, if not caused serious harm. The problem with these cases is, I
can’t tell you today what the effect of that harm is going to be to this victim *** or anybody
else that he has victimized. We will only know the answer to that question probably fifteen
or twenty years. As we know, many kids that are victims of this type of behavior often
times don’t come forward for a long, long time. They often don’t get the proper care and
treatment that they need. And they often suffer later in terms of addictions to alcohol and
drugs to try and deal with the pain that they’re in, difficulty in forming and keeping
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relationships. There is all kinds of things that are out there. Uh, and we don’t know the
answer to that question. But certainly, the conduct threatens serious harm here.”
¶ 36 It is clear from the record that the circuit court considered, in determining the appropriate
sentence, that the defendant’s criminal conduct either caused or threatened to cause serious
psychological harm to S.M.
¶ 37 It is well established that in determining the exact length of a particular sentence within the
sentencing range for a given crime, the circuit court may consider as an aggravating factor the
degree of harm caused to a victim, even where serious bodily harm is arguably implicit in the
offense of which the defendant is convicted. Saldivar, 113 Ill. 2d at 269. While we agree that there
will be some degree of psychological harm suffered by a victim in almost any sexual assault,
psychological harm may be suffered in varying degrees based on the acts perpetrated by the
defendant as well as the characteristics of the defendant and the victim. Further, the potential for
psychological harm will vary based on the specific circumstances of each case.
¶ 38 The statute under which the defendant was convicted requires that the defendant be under
the age of 17, commit an act of sexual penetration with a victim under the age of 13, and that the
defendant use force or threat of force to commit the act. 720 ILCS 5/11-1.30(b)(ii) (West 2014).
Harm is not an element or inherent in the offense. People v. Kerwin, 241 Ill. App. 3d 632, 636
(1993). Even assuming that it was, the majority of cases addressing this issue have found the
psychological harm suffered by child victims of sexual assault proper for consideration in
sentencing. See, e.g., People v. Nevitt, 228 Ill. App. 3d 888, 892 (1992) (psychological harm to a
three-year-old victim was a proper consideration when sentencing for aggravated criminal sexual
assault); People v. Ulmer, 158 Ill. App. 3d 148, 151 (1987) (a proper aggravating factor for the
court to consider was the psychological harm to 10-year-old victim); People v. Burton, 102 Ill.
12App. 3d 148, 153-154 (1981) (psychological trauma to child victim was properly considered as an
aggravating factor).
¶ 39 The defendant relies, in large part, on People v. Calva, 256 Ill. App. 3d 865 (1993), for his
argument that a sentencing court’s consideration of serious psychological harm to children due to
sexual abuse is improper when there is no evidence presented of a greater degree of psychological
harm than is inherent in any instance of sexual assault. In Calva, the defendant pleaded guilty to
six counts of aggravated criminal sexual assault, based on three physical acts, occurring on the
same date. Id. at 870. The court acknowledged that our courts “have held that it can be inferred
that a child who is the victim of sexual assault has sustained psychological damage.” Id. at 875.
However, the Calva court found that because no proof was offered of psychological harm, “the
degree of any psychological harm used in aggravation would be minimal, as it would be limited to
the degree of harm inherent in any aggravated sexual assault of a child.” Id.¶ 40 We do not find Calva persuasive. In People v. Muraida, 2021 IL App (4th) 180650-U, the
court cited a list of 27 cases which had distinguished Calva, noting that “Calva is an outlier, and
of the 27 times it has been cited by Illinois courts as of this writing, none have been in actual
support of defendant’s proposition here.” Id. ¶ 59; see also Ill. S. Ct. R. 23(e)(1) (eff. Jan. 1, 2021)
(stating nonprecedential orders under Rule 23(b) may be cited for persuasive purposes). Our
supreme court has recognized that aside from any physical injury a child may suffer in a sexual
assault, children who are sexually assaulted are subject to chronic psychological problems that
may be even more pernicious. People v. Huddleston, 212 Ill. 2d 107, 135 (2004). Because of their
emotional immaturity, children are exceptionally vulnerable to the effects of sexual assault. Id.Long term studies of child sexual abuse victims have shown that sexual abuse is harmful to the
children’s psychological, emotional, and sexual development in ways which no just or humane
society can tolerate. Id.13
¶ 41 One of the cases that distinguished Calva was this court’s decision in People v. Bunning,
where we held that the circuit court’s consideration of psychological harm to a child victim of
sexual abuse was appropriate where (1) the victim testified regarding the instances of abuse, (2) the
circuit court noted evidence that the child sought psychological treatment, and (3) the mother of
the victim submitted an impact statement which outlined the upheaval caused by the defendant’s
abuse and referred to counseling appointments. Bunning, 2018 IL App (5th) 150114, ¶¶ 20-21.
¶ 42 While this court recited a list of evidence which the sentencing court could have relied
upon in determining that the minor victim in Bunning suffered psychological harm, that finding
was not intended to be indicative of a rule that such specific elements were necessary in a circuit
court’s consideration of a victim’s actual or threatened psychological harm. Psychological trauma
to a victim may be considered as an aggravating factor without direct evidence of trauma. See
People v. Reber, 2019 IL App (5th) 150439, ¶ 94 (citing Burton, 102 Ill. App. 3d at 154).
¶ 43 In this matter, the defendant acknowledges that some courts have indicated that
psychological harm may be inferred from the facts of the case yet points out that most of the
records in those cases include either evidence or circumstances supporting an inference that the
minor suffered psychological harm greater than that inherent in the offense. See People v. Lloyd,
92 Ill. App. 3d 990, 996 (1981); Burton, 102 Ill. App. 3d at 154. As such, the defendant argues
that the record here only demonstrates a degree of harm inherent in the offense.
¶ 44 We disagree with the defendant that the record in this case does not support an inference
of a degree of harm greater than that inherent in the offense. While in the present case there was
no victim impact statement or victim testimony that would suggest the victim, S.M., suffered
serious psychological harm, the circumstances before the circuit court did not represent the
minimum conduct necessary for a defendant to commit aggravated criminal sexual assault.
Further, the circuit court commented on and appropriately relied upon its own experience
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regarding the threat of serious psychological harm to the victim. The circuit court specifically
mentioned its knowledge that victims are often reluctant to disclose sexual assault, many times
they do not receive proper care and treatment, and they often suffer from addiction later in life
when trying to cope with the pain caused by the perpetrator. The circuit court further mentioned
its knowledge that often victims of sexual assault have difficulty forming and keeping
relationships.
¶ 45 We acknowledge that a determination made by a trial court based on private investigation
or private knowledge, untested by cross-examination or the rules of evidence, may result in
deprivation of due process of law. People v. Wallenberg, 24 Ill. 2d 350, 354 (1962). However, “[a]
trial judge does not operate in a bubble; [he] may take into account [his] own life and experience
in ruling on the evidence.” People v. Thomas, 377 Ill. App. 3d 950, 963 (2007). There is no
evidence in the record that the circuit court based its finding that the defendant’s actions threatened
serious psychological harm to the victim on outside research. Further, there is no allegation that
the trial judge possessed or employed personal knowledge about the specific facts at issue in this
case. Rather, the circuit court employed its common knowledge and judicial experience to
acknowledge the ways that psychological harm can manifest when a child victim is sexually
assaulted.
¶ 46 The circuit court found, based on its experience and the facts and record before it, that the
defendant’s conduct threatened serious psychological harm to the victim. See Reber, 2019 IL App
(5th) 150439, ¶ 96 (consideration of possible psychological harm to a minor victim was not
erroneous where the court heard testimony at sentencing hearing of an “other crimes” witness
about her own psychological damage resulting from the defendant’s sexual abuse in addition to
the circuit court’s own experience); Lloyd, 92 Ill. App. 3d at 993 (the record of the case raised a
reasonable inference that the young victim suffered emotional injury as a result of the incident
15
where the defendant confessed to attempting to have intercourse with a three-year-old); Ulmer,
158 Ill. App. 3d at 150 (court appropriately considered psychological harm to the victim in
sentencing, commenting that the particular offense “could very well leave a permanent scar on this
young lady”); People v. Fisher, 135 Ill. App. 3d 502, 505 (1985) (“We reject defendant’s
contention that psychological harm should not be considered in aggravation because it is present
to some degree in all sex crimes committed upon minors.”); People v. Wolfe, 2021 IL App (4th)
190277-U (the factors cited in Bunning were not necessary for the consideration of psychological
harm to the victim); see also Ill. S. Ct. R. 23(e)(1) (eff. Jan. 1, 2021) (stating nonprecedential orders
under Rule 23(b) may be cited for persuasive purposes).
¶ 47 In the present case, the defendant pleaded guilty to one count of aggravated criminal sexual
assault. The plea was entered on a partially negotiated basis, with no agreement as to sentence.
Both parties agreed that the evidence of other crimes that the State could have, but agreed not to
charge, could be used at sentencing. The minimum conduct required to perpetrate the offense was
for the defendant, a person under 17 years of age, to commit a single act of sexual penetration with
a victim between 9 and 13 years of age and used force or threat of force to commit the act. 720
ILCS 5/11-1.30(b)(ii) (West 2014).
¶ 48 The factual basis for the plea stated that the victim, S.M., disclosed that the defendant had
sexually assaulted her between the dates of December 16, 2012, and October 1, 2014, when the
defendant placed his penis in the anus of S.M., whom was between 10 and 11 years old at the time
of the offense. Further, the State offered that the defendant
“held her down and pinned her arms and legs down and used force physically as well as
mentally stating that—not to tell anyone or they would both be in trouble, stating that the
acts which occurred numerous times, although we’ve charged as once, when he did use
16
such force, it would cause her to cry and that she would also state that this was unwanted
behavior and that she repeatedly stated for him to get off of her and to not do these acts.”
The defendant testified at his sentencing hearing that he sexually abused S.M. about seven to eight
times. The defendant denied the previously disclosed number of occasions that he confessed to
sexually abusing S.M. but did testify that he forced S.M. to perform oral sex by physically putting
her head down. During cross-examination, the defendant testified that the discrepancy between his
prior confessions and his testimony at sentencing was because of the interviewing techniques used
by those conducting his prior interviews. He did not, however, describe them or how they were
coercive. The defendant further testified that when he would force himself upon his victims, it
would make him “feel more in power.”
¶ 49 We reject the defendant’s contention that the circuit court should not have considered
psychological harm in aggravation because it is present to some degree in all sex crimes committed
upon minors. The seriousness of the defendant’s conduct in this matter went well beyond the
minimum conduct required to commit the offense of aggravated criminal sexual assault. Therefore,
we find that the record supports the circuit court’s consideration in aggravation that the defendant’s
conduct threatened serious psychological harm to the victim, S.M. Having concluded that the
circuit court’s consideration of psychological harm to the victim was a proper consideration in
sentencing, we find that there was no error. If there is no error, there can be no plain error and the
defendant’s forfeiture must be honored.
¶ 50 B. Proportionate Penalties Clause
¶ 51 The proportionate penalties clause states that “[a]ll penalties shall be determined both
according to the seriousness of the offense and with the objective of restoring the offender to useful
citizenship.” Ill. Const. 1970, art. I, § 11. “[T]o succeed on [a] proportionate-penalties claim, [a]
defendant must show that either the penalty imposed (1) is cruel, degrading, or so wholly
17
disproportionate to the offense that it shocks the moral sense of the community *** or (2) differs
from one imposed for an offense containing the same elements.” People v. Brown, 375 Ill. App.
3d 1116, 1118 (2007). The defendant argues solely under the first alternative. Specifically, the
defendant contends that his sentence is disproportionate to the seriousness of the offense,
especially when considered in light of his age, and that the circuit court failed to consider his
rehabilitative potential. Whether a sentence is constitutional is a question of law we review
de novo. People v. Lawson, 2015 IL App (1st) 120751, ¶ 45.
¶ 52 The defendant’s sentence resulted from the convergence of several statutes. First, because
the defendant was charged with aggravated criminal sexual assault, the automatic transfer statute
(705 ILCS 405/5-130 (West 2014)) required him to be tried as an adult. Second, Class X sentencing
requires a sentence of 6 to 30 years’ imprisonment (730 ILCS 5/5-4.5-25 (West 2014)), to be served
at 85% (id. § 3-6-3(a)(2)). The circuit court sentenced the defendant to the maximum sentence
within the sentencing range, 30 years’ imprisonment, thus resulting in the defendant serving a
minimum of 25½ years of incarceration.
¶ 53 The defendant’s claim is an as-applied challenge. A party raising an as-applied challenge
requires a showing that the statute is unconstitutional as it applies to the specific facts and
circumstances of the challenging party. People v. Holman, 2017 IL 120655, ¶ 29. All as-applied
constitutional challenges are, by definition, dependent on the specific facts and circumstances of
the person raising the challenge.
¶ 54 The defendant cites to a line of cases providing heightened protection to juveniles in
sentencing. See Miller v. Alabama, 567 U.S. 460, 479 (2012) (eighth amendment prohibits
mandatory life without parole sentences for juvenile offenders convicted of homicide); Roper v.
Simmons, 543 U.S. 551, 574-75 (2005) (eighth amendment prohibits death penalty for juveniles
18
who commit homicide); Graham v. Florida, 560 U.S. 48, 82 (2010) (eighth amendment prohibits
mandatory life without parole sentences for juveniles who commit nonhomicide offenses).
¶ 55 The defendant claims that his sentence shocks the moral sense of the community as the
defendant did not commit murder and the defendant will not be eligible for release from prison
until he is 42 years old. The defendant states that the average sentence of an adult offender charged
with the same crime is less than the maximum of 30 years and cites to numerous cases where lesser
sentences were established for adult offenders. The defendant also argues that the circuit court did
not contemplate that the defendant could be restored to useful citizenship. The defendant claims
that his age was not considered by the circuit court in connection with lessened culpability or with
the possibility for rehabilitation. The defendant further argues that the circuit court ignored the sex
offender evaluation’s acknowledgment that
“[r]esearch points out that adolescent offenders are more amenable to treatment than adults
due to the fluid nature of their brain development. In other words, even though the offenses
[the defendant] has committed are serious, there is hope for his recuperation. This hope is
due to the fact that his brain will continue to develop over the next 6-9 year period.”
In determining whether a sentence shocks the moral sense of the community, this court will
consider both objective evidence and “the community’s changing standard of moral decency.”
People v. Hernandez, 382 Ill. App. 3d 726, 727 (2008). The constitution’s references to
“seriousness of the offense” and “the objective of restoring an offender to useful citizenship” are
to be considered separately. People v. Cetwinski, 2018 IL App (3d) 160174, ¶ 68.
¶ 56 1. Seriousness of the Offense
¶ 57 Before considering the defendant’s rehabilitative potential, we note the seriousness of the
offenses he committed. “Factors to be considered in determining the seriousness of an offense
include the degree of harm, the frequency of the crime, and the risk of bodily injury associated
19
with it.” Huddleston, 212 Ill. 2d at 129. The defendant was charged with and pleaded guilty to
aggravated criminal sexual assault, a Class X felony, and the mandatory sentencing range was
between 6 and 30 years’ incarceration. See 730 ILCS 5/5-4.5-25 (West 2014). The defendant
admitted to having sexually assaulted a 9-year-old victim who was his cousin by engaging in an
act of sexual penetration with his penis to her anus, at a time when the defendant was between 15
and 16 years old. 1 The defendant used force in his sexual assault by pinning S.M.’s arms and legs
down and coerced her into silence by bribing her with the use of electronics and threatening her
that they both would get into trouble if she told anyone.
¶ 58 While the defendant pleaded guilty to a single count of aggravated criminal sexual assault,
a serious offense in itself, he had confessed to many more instances of sexual assault in interviews
with the police and DCFS. The defendant further admitted to committing at least six other acts of
sexual assault through his testimony at his sentencing hearing.
¶ 59 We will first address the defendant’s argument that the State’s repeated references to the
defendant’s multiple victims and an ongoing pattern of sexual assaults are unsupported by the
record. In addition to lack of evidence, the defendant argues that the circuit court’s consideration
of evidence of other crimes was in error because it was unreliable.
¶ 60 We do not find error in the circuit court’s consideration of the defendant’s confession to
other instances of sexual assault and find that such reliance was proper, and both supported by the
record and reliable for the purposes for which it was considered.
¶ 61 It is clear from the record that the circuit court considered the other crimes evidence
presented in the police reports and sex offender evaluation, as well as through the defendant’s
testimony, for purposes of analyzing the seriousness of the offense as well as the character and
1
The information alleged the offense was committed between December 16, 2012, and October 1, 2014.
The defendant was 15 years and 1 day old on December 16, 2012, having been born on December 15, 1997.
20
likelihood to reoffend. While the record may not be clear as to the exact number of occasions the
defendant committed sexual assault, the defendant’s admissions were certainly detailed enough,
even giving credence to the most minimal of the defendant’s admissions, to support an ongoing
pattern of sexual assault against S.M., perpetrated by the use of force and manipulation. The
defendant does not argue that his statements were inadmissible but that they were inconsistent and,
by implication, unreliable. Further, the defendant argues that his statements were not corroborated.
¶ 62 We note that the discretion of trial judges in hearing evidence and determining appropriate
sentences is broad, but there are limits to this discretion. People v. Jackson, 149 Ill. 2d 540, 549
(1992). The supreme court has held that a circuit court must exercise care to ensure the accuracy
of information considered and avoid the prejudicial impact of improper materials. Id. While our
courts have not prescribed any specific burden of proof at sentencing, it has been consistently
stated that relevance and reliability are the important factors in the consideration of the evidence
at sentencing. Id. Those questions are initially determined by the trial judge in the exercise of
informed discretion. People v. La Pointe, 88 Ill. 2d 482, 498 (1981); see also People v. Foster, 119
Ill. 2d 69, 96 (1987).
¶ 63 According to the terms of the partially negotiated guilty plea, the State agreed not to file
any additional charges that it was aware of at the time of the plea. The State informed the circuit
court that it would be using the other crimes in aggravation at the sentencing hearing and the
defendant’s counsel agreed. Where, as here, the defendant admitted to an ongoing pattern of sexual
crimes perpetrated against multiple victims during police interviews, the sex offender evaluation,
and in the form of sworn testimony relating to the victims S.M. and S.S., we cannot find that the
circuit court’s consideration of the evidence of an ongoing pattern of deviant, forceful sexual
behavior perpetrated against multiple victims was an abuse of discretion.
21
¶ 64 The defendant testified that he first sexually offended when he was 10 years old, consistent
with his criminal history of adjudication, and continued to do so while in counseling, up until the
age of 16. That indicates at minimum a six-year pattern of sexual abuse against his victims at times
during which he was under the jurisdiction of the juvenile court for his prior adjudication for sexual
assault and engaged in ongoing treatment to prevent further acts of sexual abuse. The defendant
admitted to deviant sexual conduct that was relevant to a determination of a proper sentence in that
it bore upon the seriousness of the offense and the likelihood that the defendant would commit
other offenses. The defendant’s pattern of sexual offending was corroborated, in addition to his
own confessions and testimony, by both a prior offense contained within the defendant’s criminal
history, testimony of the defendant’s mother, the factual basis presented by the State, and the
disclosure of the victim, S.M., of the charged crime as referenced in the factual basis. The
defendant’s confession to multiple acts of sexual assault perpetrated against S.S., despite the fact
that S.S. did not disclose those offenses, was corroborated both by the defendant’s pattern of sexual
assault and S.S.’s disclosure that she woke up with the defendant reaching his hand up her leg
toward her vagina. While the State could have proven more fully at sentencing each of the
defendant’s confessions, we will not second-guess the circuit court in crediting the defendant’s
admissions under these facts.
¶ 65 The defendant next argues that there was no evidence of harm to the victim and that the
evidence against him was “minimal.” The sexual assault of a minor occupies a unique place in the
realm of “seriousness.” The supreme court has recognized that minors subjected to sexual assault,
apart from the possibility of physical injury, are subjected to psychological harm so pernicious that
sexual assault is just shy of homicide as a violation of self. Huddleston, 212 Ill. 2d at 135. The
supreme court acknowledged that the impact of sexual assault on a child can be even more
22
profound than that experienced by an adult, in that child victims are especially vulnerable to the
effects of sexual assault. Id.¶ 66 For the reasons stated above regarding psychological harm, as well as our supreme court’s
commentary in Coty, 2020 IL 123972, regarding the harm caused to victims of sexual assault, we
disagree that the circuit court was without information in the record to consider harm to the victim
in fashioning a sentence within the sentencing range.
¶ 67 Regarding the defendant’s claim of minimal evidence, we must also disagree. The
defendant pleaded guilty to one count of aggravated criminal sexual assault in exchange for a
promise from the State not to pursue any other charges of sexual assault that were known to the
State at the time of the plea agreement. In addition to the defendant’s guilty plea, the defendant
admitted to many other instances of sexual assault against the victim, S.M. Evidence of sexual
assault is often based on the testimony given by the victim and the offender, as the only witnesses
to the offense, and we do not find such evidence to be minimal. Therefore, we find that the ongoing
and repeated offenses perpetrated against the victim, a young family member, by use of force and
manipulation, constituted a very serious offense.
¶ 68 Next, the defendant argues that his 30-year sentence shocks the moral sense of the
community because the “average term of imprisonment for an adult who commits sexual assault
is 12.2 years.” The defendant cites other Illinois cases where defendants did not receive a sentence
as lengthy as the one the defendant received here, despite the fact that those cases involved adults
who sexually assaulted a minor. Our supreme court has rejected such comparative sentencing
challenges involving unrelated cases and we are bound to follow precedent. See People v. Fern,
189 Ill. 2d 48, 58-59 (1999). The propriety of the sentence imposed in a particular case cannot be
properly judged by the sentence imposed in another, unrelated case. Id. As such, we reject the
defendant’s invitation to do so.
23
¶ 69 The defendant also argues that the combined effect of the sentencing scheme, as applied to
him, violated the proportionate penalties clause largely due to his age. In Miller, the Supreme Court
recognized that “children have a lack of maturity and underdeveloped sense of responsibility,
leading to recklessness, impulsivity, and heedless risk-taking.” (Internal quotation marks omitted.)
Miller, 567 U.S. at 471. We do not believe that Miller or its progeny supports a finding that a
minor, transferred to adult court and sentenced to the maximum sentence within the sentencing
range violates the proportionate penalties clause.
¶ 70 In People v. Miller, our supreme court acknowledged that as our society evolves, so too do
our concepts of elemental decency and fairness. People v. Miller, 202 Ill. 2d 328, 339 (2002) (L.
Miller). In that case, the combination of the multiple-murder sentencing statute, the accountability
statute, and the automatic transfer provision resulted in a mandatory sentence of life without the
possibility of parole for a 15-year-old who acted as a lookout. Id. at 341. The supreme court found
that the penalty mandated by the multiple-murder sentencing statute as applied to the defendant in
that case was particularly harsh and unconstitutionally disproportionate. Id. In the instant case, the
defendant was the actual perpetrator of the offense of aggravated criminal sexual assault and was
not subjected to a mandatory sentence of life in prison without the possibility of parole. Unlike the
sentencing court in L. Miller, the circuit court here was not prevented from weighing the facts of
the case as well as all evidence submitted on the topics of both aggravation and mitigation and
fashioning a sentence between 6 to 30 years’ imprisonment.
¶ 71 While the defendant cites the Miller line of cases focusing on the attendant characteristics
of youth and their applicability to decreased culpability and increased potential for rehabilitation,
none of these cases preclude a sentence for a minor which is the maximum of the prescribed
sentencing range for an adult. See Miller, 567 U.S. 460 (eighth amendment prohibits mandatory
life without parole sentences for juvenile offenders convicted of homicide); Roper, 543 U.S. 55124
(abolishing the death penalty for all juveniles who commit homicide); Graham, 560 U.S. 48(barring life without parole for juveniles in nonhomicide cases).
¶ 72 To the contrary, both the United States Supreme Court and the Illinois Supreme Court have
closely limited the application of the rationale expressed in Roper, Graham, and Miller, invoking
it only in the context of the most severe of all criminal penalties. People v. Patterson, 2014 IL
115102, ¶ 110. While we acknowledge that the Supreme Court has determined that “children are
constitutionally different from adults for purposes of sentencing” (internal quotation marks
omitted) (People v. Lusby, 2020 IL 124046, ¶ 32), we defer to the legislature for the determination
of appropriate sentencing ranges.
¶ 73 In People v. Patterson, 2014 IL 115102, ¶ 107, the supreme court considered an as-applied
challenge to a sentence asserting that the mandatory transfer statute, alone or in combination with
the consecutive sentencing scheme, was unconstitutional as applied to nonhomicide juvenile
offenders because they were less deserving of the most serious forms of punishment than
murderers. Id. In that case, the defendant was sentenced to 12 years in prison on each of three
counts of aggravated criminal sexual assault. Id. ¶ 108. The sentences were to be served
consecutively and the defendant was statutorily mandated to serve at least 85% of his total prison
term, or 30 years and 7 months. Id.
¶ 74 First, the supreme court considered the proportionate penalties challenge to the transfer
statute and held that whether a defendant is tried in juvenile or criminal court is purely a matter of
procedure. Id. ¶ 104. The supreme court rejected the defendant’s assertion that the transfer statute
functioned as a sentencing statute, even accepting the assertion that a juvenile who is convicted in
criminal court is always subject to a lengthier sentencing range and harsher prison conditions than
if he had been adjudicated in juvenile court. Id. ¶¶ 104-105. Therefore, the defendant’s eighth
amendment and proportionate penalties clause challenges were rejected. Id. ¶ 106.
25
¶ 75 Next, the supreme court considered the argument, similar to the one presented in the
present case, that the combination of the transfer statute and the applicable sentencing provisions
were unconstitutional as applied to nonhomicide offenders because they were “ ‘categorically less
deserving of the most serious forms of punishment than are murderers.’ ” Id. ¶ 107. The supreme
court held that, although lengthy, the defendant’s 36-year sentence was not comparable to either
the death penalty or life in prison without parole. Id. ¶ 108. The supreme court noted in Patterson
that the United States Supreme Court had distinguished the latter sentences from any others, noting
both the uniqueness of the severity and irrevocability of the death penalty and the characteristics
with death sentences that are shared by no other sentences besides life without parole. Id. (citing
Graham, 560 U.S. at 69). Further, the supreme court noted that the “State is not required to
guarantee eventual freedom to a juvenile offender convicted of a nonhomicide crime,” but only to
give those offenders “some meaningful opportunity to obtain release based on demonstrated
maturity and rehabilitation,” expressly leaving the specific mechanism and means to each state.
Id. (quoting Graham, 560 U.S. at 75). The supreme court held that a prison term totaling 36 years’
imprisonment for a juvenile who personally committed three counts of aggravated criminal sexual
assault did not fall into that category. Id. ¶ 110; see also People v. Banks, 2015 IL App (1st)
130985, ¶¶ 21-23 (defendant’s 45-year sentence affirmed); People v. Pacheco, 2013 IL App (4th)
110409, ¶ 51 (defendant’s 30-year sentence affirmed; declining to extend holdings in Miller and
Graham to mandatory minimum sentencing for juvenile offenders).
¶ 76 In the present case, although the defendant’s sentencing range is significant, the defendant
was not subject to a sentence comparable to the penalty that was rejected in Miller or its progeny.
See People v. Hunter, 2016 IL App (1st) 141904, ¶ 55 (defendant subject to a sentencing range of
21 to 45 years was not subject to a sentence comparable to the penalty that was rejected in Miller).
The defendant was also not subject to a situation where the sentencing scheme forced the circuit
26
court to impose the same sentence on all defendants regardless of their degree of participation in
the offense. See L. Miller, 202 Ill. 2d at 342 (“the convergence of the Illinois transfer statute, the
accountability statute, and the multiple-murder sentencing statute eliminates the court’s ability to
consider any mitigating factors such as age or degree of participation”).
¶ 77 In the present case, the circuit court sentenced the defendant to a discretionary term of 30
years in prison, with the potential to be released after 25 years and 6 months. The defendant in this
matter is not serving a sentence of life imprisonment or even a de facto2 life sentence. Further, the
defendant was not subject to any mandatory enhancements. The sentencing range in combination
with the transfer statute and the truth-in-sentencing law, as applied to the defendant, allowed for a
sentence in the range of 6 to 30 years, and a sentence at the higher end of the range was not clearly
disproportionate to the seriousness of the offense.
¶ 78 2. Objective of Restoring an Offender to Useful Citizenship
¶ 79 The defendant maintains that his sentence violates the proportionate penalties clause
because it does not, as an objective of the sentence, “restor[e] the offender to useful citizenship.”
Ill. Const. 1970, art. I, § 11. While restoring the “offender to useful citizenship” is an important
factor the circuit court must consider when fashioning a sentence, there is no indication that the
possibility of rehabilitation should be given greater weight and consideration than the seriousness
of the offense in determining a proper penalty. People v. Waud, 69 Ill. 2d 588, 596 (1977).
¶ 80 Here, the circuit court expressed concern that counseling had not helped to date, and there
was concern that it would never help. The circuit court reviewed a number of findings in the sex
offender evaluation which informed its decision. The circuit court specifically referenced scale
number eight on the SAI, that the defendant scored in the 98th percentile for chronic antisocial
2
See People v. Buffer, 2019 IL 122327, ¶ 40 (“In determining when a juvenile defendant’s prison
term is long enough to be considered a de facto life without parole, we choose to draw a line at 40 years.”).
27
attitudes and thinking, with the sex offender evaluator noting: “This client needs help. However,
intervention or counseling may be difficult due to the client’s, this client’s antisocial attitudes.”
The circuit court found that the defendant “is a huge risk to the public. There is no question about
it.”
¶ 81 The circuit court also considered the age and development of the defendant and the fact
that the defendant was abused as a child himself. The circuit court commented that it agreed that
the defendant’s brain would not fully develop until about age 25 and acknowledged that was the
portion of the brain directly related to impulsivity.
¶ 82 Although the defendant argues that the circuit court failed to credit the idea that the
defendant could be restored to useful citizenship, the record demonstrates that the circuit court
acknowledged that the defendant had the ability to be rehabilitated, but expressly stated its belief
that it was going to take a long time of treatment and counseling. The circuit court did not ignore
the fact that adolescent offenders are more amendable to treatment than adults due to the fluid
nature of their brain development, but the court focused on the need to protect the public and its
concern that the defendant was a danger to the community based on his risk of recidivism.
¶ 83 Sentences imposed should provide for the possibility of rehabilitation while at the same
time affording society adequate protection. People v. Ike, 7 Ill. App. 3d 75, 81 (5th Dist. 1972).
Though the defendant was 17 years old when he was sentenced, the evidence presented at
sentencing supported a finding that the defendant’s rehabilitative potential was minimal, and that
the defendant posed a danger to the community.
¶ 84 The circuit court considered the defendant’s age and rehabilitative potential. The defendant
points out that the sex offender evaluation noted that there was significant time for treatment and
rehabilitation and argues that the circuit court was dismissive of the defendant’s potential for
rehabilitation. The defendant points to the sex offender evaluator’s note that there was “hope for
28
recuperation” because the brain of a person the defendant’s age will continue to develop. However,
the evaluator went on to state that the “[c]lient is being rated as a high risk to re-offend in a sexually
aggressive manner. This evaluator does not believe that [the defendant] can be safely maintained
in the community.”
¶ 85 Faced with the evidence before it, the circuit court found that the defendant’s
dangerousness required a lengthy sentence to protect the public, despite the possibility that further
brain development may lead to fruitful treatment. The circuit court found that such rehabilitation,
if possible, would take a long time. While we recognize that the defendant received a very lengthy
sentence, as discussed in Patterson, the State is not required to guarantee eventual freedom to a
juvenile offender convicted of a nonhomicide crime but must provide offenders with some
meaningful opportunity to obtain release based on their demonstrated maturity and rehabilitation.
See Patterson, 2014 IL 115102, ¶ 108. Here, the defendant will be eligible for release after 25
years and 6 months. Considering the seriousness of the offense and the evidence regarding the
defendant’s rehabilitative potential, we cannot say that the defendant’s sentence violated the
constitutional requirement of proportionality. We therefore reject the defendant’s challenge under
the proportionality clause.
¶ 86 C. Excessive Sentence
¶ 87 Finally, the defendant argues that the circuit court abused its discretion in sentencing the
17-year-old defendant to the maximum sentence of 30 years’ imprisonment. The defendant claims
that the circuit court failed to consider factors in mitigation, such as the fact that the defendant
pleaded guilty, his age and rehabilitative potential, the circumstances of his childhood, and the
financial impact of his incarceration.
¶ 88 Whether the circuit court imposed an excessive sentence is reviewed for an abuse of
discretion. People v. O’Neal, 125 Ill. 2d 291, 197-98 (1988). The abuse of discretion standard has
29
been viewed as the most deferential standard of review available with the exception of no review
at all. People v. Coleman, 183 Ill. 2d 366, 387 (1998). The circuit court is in the best position to
make a determination of sentence; therefore, a circuit court’s sentence is entitled to great deference
and weight. People v. Perruquet, 68 Ill. 2d 149, 154 (1977). The circuit court has the opportunity
to weigh factors such as the defendant’s credibility, demeanor, general moral character, mentality,
social environment, habits, and age. People v. Stacey, 193 Ill. 2d 203, 209 (2000). As a result, a
reviewing court may not substitute its judgment for that of the circuit court simply because it would
have weighed those factors differently. Id. A sentence within the statutory limits will not be
considered excessive unless it greatly varies with the spirit and purpose of the law or is manifestly
disproportionate to the nature of the offense. People v. Lee, 379 Ill. App. 3d 533, 539 (2008).
¶ 89 It is well established that a circuit court has wide latitude in sentencing a defendant, so long
as it neither ignores relevant mitigating factors nor considers improper factors in aggravation.
People v. Roberts, 338 Ill. App. 3d 245, 251 (2003). The existence of mitigating factors does not
mandate imposition of the minimum sentence or preclude imposition of the maximum sentence.
People v. Flores, 404 Ill. App. 3d 155, 158 (2010). It is the circuit court’s responsibility “to balance
relevant factors and make a reasoned decision as to the appropriate punishment in each case.”
People v. Latona, 184 Ill. 2d 260, 272 (1998).
¶ 90 Although a circuit court may not disregard mitigating evidence, it may determine the
weight to attribute to such evidence and need not recite and assign any value to each factor. People
v. Foxx, 2018 IL App (1st) 162345, ¶ 50. A defendant has the burden of showing that the circuit
court did not consider rehabilitative evidence and mitigating factors before it. People v. Brown,
2017 IL App (1st) 142877, ¶ 64. Hence, when mitigating evidence is before the circuit court, a
reviewing court presumes the circuit court considered it, absent some indication in the record to
the contrary other than the sentence itself. Id. Here, the defendant was sentenced to 30 years’
30
imprisonment for one count of aggravated criminal sexual assault. The range of possible sentences
for the defendant’s case was 6 to 30 years. 730 ILCS 5/5-4.5-25(a) (West 2014).
¶ 91 The defendant first argues that the circuit court improperly considered that the sentence
was necessary to deter others from committing the same crime in aggravation. Id. § 5-5-3.2(a)(7).
The defendant claims that, as applied to juvenile offenders, the aggravating factor is inappropriate,
as research shows deterrence is not effective within the adolescent population. Section 5-4.5-50(d)
of the Unified Code requires a defendant to challenge “the correctness of a sentence or to any
aspect of the sentencing hearing *** [in] a written motion filed with the circuit court clerk within
30 days following the imposition of sentence.” Id. § 5-4.5-50(d). If a defendant fails to include an
argument in the motion, the issue is forfeited. People v. Tyus, 2011 IL App (4th) 100168, ¶ 85. As
this argument was not raised in the lower court, the issue is forfeited.
¶ 92 The defendant next argues that the circuit court improperly considered the need to protect
the public. The defendant concedes that protection of the public is an appropriate aggravating
factor for the circuit court to consider during sentencing; however, the defendant argues that the
circuit court’s consideration was “in a vacuum.” The defendant claims that the circuit court
considered protection of the public without balancing the objective of restoring the offender to
useful citizenship.
¶ 93 A defendant’s rehabilitative potential is not entitled to greater weight than the seriousness
of the offense. People v. Coleman, 166 Ill. 2d 247, 261 (1995). The circuit court commented during
the April 11, 2019, motion to reconsider hearing that the defendant’s youth was “something that
strongly weighed on my mind in making a decision. *** I did, in fact, take into account his age,
his local maturity and those factors that are attendant to those things.” The circuit court also
mentioned that it was particularly concerned that the defendant scored in the 98th percentile in
terms of antisocial behavior, and the 91st percentile with regard to child molestation which was
31
indicative of deviant and pedophile type thoughts, motivations, tendencies, and possible acts. The
circuit court mentioned that the sex offender evaluation indicated that intervention or counseling
may be difficult due to the defendant’s antisocial attitudes. The circuit court further noted that the
defendant scored in the 93rd percentile in terms of sexual assault and that those results indicated
that the defendant could be dangerous. The defendant scored in the 96th percentile for
dangerousness to himself and others and in the 96th percentile on impulsiveness. The circuit court
specifically stated that
“I was sensitive to and still am his young age, his victimhood, but I had to balance
that out against crafting a sentence that would deter other people from doing the same thing
if you can to whatever extent the Court can do that, but also primarily to protect the public
from this. And the sex offender evaluation report was clearly indicating that he was a high
level of risk to reoffend.”
¶ 94 We disagree, based on the entire record of this case, that the circuit court fashioned its
sentence without considering the objective of restoring the offender to useful citizenship. While
the defendant was young when he committed his crime, it was not committed with impetuosity. In
addition to the crime for which he pleaded guilty, the defendant admitted to multiple other sexual
assaults wherein he described in great detail bribing the victims for compliance, threatening
exposure if they revealed the crimes, and preying on younger children because it gave him a feeling
of power. The defendant assumed the principal role in committing sexual assaults against his
victims. While the defendant’s brain was still developing, and he suffered from his own childhood
trauma, the circuit court considered those facts. The defendant committed his offense, along with
a string of additional sexual assaults, during and after three years of counseling that he engaged in
after committing a prior sexual assault against a child.
32
¶ 95 While the sex offender evaluator indicated that research shows adolescent offenders are
more amenable to treatment than adults due to the fluid nature of their brain development, and that
there is hope for the defendant’s recuperation over the next six- to nine-year period, the risk rating
ascribed to the defendant was described by the evaluator as a high risk to reoffend in a sexually
aggressive manner. The evaluator further opined that the defendant could not be maintained safely
in the community.
¶ 96 Additionally, the defendant’s mother testified that the defendant gave the impression that
he was doing better, but that he was mainly just “covering his tracks” and not getting better at all.
The circuit court considered a plethora of diagnostic tests which indicated the defendant’s potential
for continued sexual dangerousness. The circuit court commented at the defendant’s April 11,
2019, postplea motion hearing that it considered the defendant’s rehabilitative potential. The
circuit court stated: “He has the ability to be rehabilitated, I suppose. It’s going to take a long time
of treatment and counseling, but as I said he got 30 years ***.”
¶ 97 The circuit court was in a position to balance the defendant’s youth and rehabilitative
potential against a wealth of objective evidence that the defendant was, and continued to be, a
dangerous individual who had spent much of his young life sexually offending upon younger girls.
We will not reweigh those factors and find that the circuit court’s finding regarding the need to
protect the public was not an abuse of discretion.
¶ 98 The defendant next argues that the circuit court improperly considered the possible
sentences which the defendant could have received for uncharged offenses as factors in
aggravation. At the sentencing hearing, the circuit court stated:
“Uh, in my opinion, [the defendant] has received substantial breaks in this case
already by the fact that the State dismissing the juvenile petition and the fact that he has,
the State has agreed not to file any additional charges. Quite frankly, he could have been,
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even if we just listened to [the defendant] and believe everything he said, we are talking
about ten plus additional charges of criminal sexual assault that could have been filed,
could have been prosecuted, would have been by their nature punishable by 6-30 years
each, would have been by their, by law required to be mandatory consecutive sentences.
He could have been looking at decades and decades and decades in prison. And the State
in the agreement, the partial agreement that was reached, agreed not to proceed. *** And
given the fact that he has received, you know, substantial breaks in terms of other charges
not having been filed, the sentence that I’m going to impose in this case is going to be 30
years in the Department of Corrections, followed by a mandatory supervised release term
of three to natural life.”
¶ 99 The circuit court is charged with fashioning a sentence based upon the particular
circumstances of the individual case, including the nature of the offense and the character of the
defendant. Fern, 189 Ill. 2d at 55. Thus, the particular circumstances of the case are not limited to
the nature of the charged offense, but also includes the defendant’s character. People v. Johnson,
2021 IL App (4th) 190446-U, ¶ 120. Proof of prior misconduct not resulting in prosecution or
conviction is admissible as relevant to the question of a defendant’s character. People v. Johnson,
114 Ill. 2d 170, 205 (1986). The evidence of prior misconduct merely has to be relevant and
reliable, and it is for the circuit court to decide, in its discretion, whether the evidence meets that
standard. Id. Hearsay evidence is admissible at sentencing. People v. Pickens, 274 Ill. App. 3d 226,
233 (1995).
¶ 100 The defendant objects to the circuit court mentioning that the State dismissed a juvenile
petition. The defendant argues that there is nothing in the record to support the idea that the State
had the ability to prove the juvenile petition. We cannot agree.
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¶ 101 While the defendant is correct that the victim in the juvenile petition was a minor who did
not attend any court hearings or provide a victim impact statement, the record is replete with
evidence relating to charges that could have been brought against the defendant for acts committed
against S.S. This evidence was in large part provided by the defendant. The victim in the juvenile
petition, S.S., was interviewed at the Child Advocacy Center in Springfield, Illinois. While she
disclosed that the defendant had touched her by sliding his hand up her thigh while she slept, she
denied him touching her vaginal area or anywhere else. The defendant’s PSI included a criminal
history showing that the State had dismissed a juvenile case alleging aggravated criminal sexual
assault by use of force against a victim between 9 and 13 years of age, a Class X felony. The
defendant made no corrections at his sentencing hearing to the PSI and did not object to the court
considering anything contained within the PSI. The PSI included a summary of an interview with
the defendant in which the defendant admitted to numerous sexual assaults against S.S., including
forcing S.S. to perform oral sex on him over 50 times. The PSI also included a police report that
summarized an interview with the defendant which occurred on December 8, 2014, in which he
again admitted to numerous sexual acts perpetrated against S.S. The defendant testified at his
sentencing hearing on direct examination and admitted to telling police that he had touched or
otherwise attempted to touch or have intercourse with S.S., “sixty, seventy, eighty” times. He then
testified that he actually penetrated her two to three times. As such, there was sufficient evidence
for the circuit court to reasonably determine that the State had the ability to prove the juvenile
petition.
¶ 102 The defendant next argues that the circuit court erred in considering the “breaks” that the
defendant received when the State agreed, as part of the plea agreement, not to file additional
charges against him. The defendant argues that there was no other evidence that the defendant
committed any uncharged offenses other than the defendant’s own statements, which were
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inconsistent with each other. The defendant argues that these statements were unreliable and not
corroborated.
¶ 103 We find no abuse of discretion in the circuit court’s consideration of the defendant’s prior
statements and his own testimony at his sentencing hearing based on reliability. We note that the
bulk of the State’s evidence of other offenses came from the defendant himself. Under Illinois
Rule of Evidence 801(d)(2)(A) (eff. Jan. 1, 2011), “the party’s own statement, in either an
individual or representative capacity” is not hearsay. Rather, such statements are substantively
admissible at trial. People v. Denson, 2013 IL App (2d) 110652, ¶ 5. Moreover, the defendant
testified and was subject to cross-examination at his sentencing hearing, freely presenting evidence
to the circuit court admitting to touching or otherwise attempting to touch or have intercourse with
S.S. between two to four times. The defendant then testified that he sexually abused S.M. seven to
eight times. The defendant’s statements were corroborated by the victims’ disclosures, as they
corroborated some of the acts, the timeframe, the sexually inappropriate behavior of the defendant,
and the defendant’s access to both victims. The defendant disclosed his sexual desires relating to
both victims and his motivation in committing sexual offenses against them, to feel more powerful.
¶ 104 The circuit court, in discussing the evidence, noted that “even if we just listened to [the
defendant] and believe everything he said, we are talking about ten plus additional charges.” The
circuit court credited the veracity of the criminal conduct to which the defendant admitted at
sentencing and considered the fact that the defendant committed an array of violent sex offenses
for which the defendant’s sentence could have been much longer had those crimes been charged
and proven. The circuit court’s imposition of the maximum sentence was premised on the
multiplicity of the defendant’s criminal conduct, a valid consideration for the circuit court at
sentencing.
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¶ 105 After arguing that the evidence of other crimes was insufficient and unreliable for purposes
of sentencing, the defendant argues that he was not sentenced on the basis of the uncharged crimes,
but rather on the fact that those uncharged crimes, if charged, would have resulted in a much
greater sentence. The defendant claims that such consideration is improper as a factor in
aggravation. The defendant has cited no authority for this proposition in his opening brief;
however, in his reply brief, he cites People v. Hill, 14 Ill. App. 3d 20, 23 (1973).
¶ 106 The defendant cites Hill for the proposition that this court’s own precedent prohibits
consideration of uncharged offenses in determining a sentence. The defendant incorrectly
interprets our holding in Hill. In Hill, the circuit court commented at sentencing on the fact that
the defendant could have been charged with a felony rather than a misdemeanor, and this court
remanded for resentencing, holding: “Since he was not charged with, nor proven guilty of
committing a felony, it would be improper to use this as a basis for either denying probation or
setting defendant’s sentence.” Id. The felony in question was the same conduct for which the
defendant in Hill was charged and convicted.
¶ 107 In People v. Kahl, 63 Ill. App. 3d 703 (1978), this court distinguished Hill. In Kahl, this
court commented that the possibility in Hill that the defendant might have been charged with a
felony had no bearing on whether he would commit another offense or on whether the sentence
received would foster rehabilitation. Id. at 709. This court went on to distinguish Hill, holding that
the evidence in Kahl of prior convictions was relevant to the issues of the possibility of the
defendant’s recidivism and rehabilitative potential. Id.; see also People v. Gooch, 2014 IL App
(5th) 120161, ¶ 9 (Where this court, in affirming sentence as not excessive, considered the fact
that if defendant had pled to two dismissed counts of predatory criminal sexual assault it would
have added 12 to 120 years to his sentence. Considering the sentence was within statutory limits
and the two dismissed charges, the circuit court’s sentence was appropriate.).
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¶ 108 Similarly, in the case at bar, the evidence of other crimes was highly relevant. The other
acts occurred over a six-year period just prior to the matter charged and were relevant to the
defendant’s character, the likelihood that the defendant would sexually reoffend, and the sentence
that would be required for rehabilitation.
¶ 109 Next, the defendant argues that the circuit court failed to consider the financial impact of
the defendant’s incarceration on the IDOC. Section 5-4-1(a)(3) of the Unified Code (730 ILCS
5/5-4-1(a)(3) (West 2018)) states that, at a sentencing hearing, the sentencing court shall consider
the financial impact statement filed with the clerk of the court by the Department of Corrections.
Section 5-4-1(a)(3) requires the trial court to consider the financial impact of the defendant’s
incarceration based on the financial impact statement. Id.¶ 110 As with the defendant’s deterrence argument above, the defendant failed to raise this issue
in the lower court as required by section 5-4.5-50(d) of the Unified Code. Therefore, the issue is
forfeited.
¶ 111 Finally, the defendant argues that the circuit court failed to consider a number of
nonstatutory factors in mitigation. These include (1) the fact of the defendant’s guilty plea, (2) the
defendant’s youth and rehabilitative potential, and (3) the defendant’s difficult childhood.
¶ 112 Each of these factors was known to the circuit court from the PSI report and evidence
gleaned at the sentencing hearing. We presume, in absence of evidence to the contrary, that the
sentencing court considers mitigation evidence when it is presented. People v. Burton, 184 Ill. 2d
1, 34 (1998). Here, that presumption was not overcome where the record contains no explicit
evidence that these mitigating factors were not considered by the court. The circuit court is not
required to detail precisely for the record the exact process by which it determined the penalty, nor
is it required to articulate consideration of mitigating factors. People v. Quintana, 332 Ill. App. 3d
96, 109 (2002).
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¶ 113 While a court may grant dispositional concessions to defendants who enter a guilty plea
when the public’s interest in the effective administration of justice would be served (People v.
Sivels, 60 Ill. 2d 102, 105 (1975)), a sentence that is the maximum sentence within the sentencing
range is not precluded when a defendant has pleaded guilty.
¶ 114 Further, the circuit court specifically mentioned during its sentencing pronouncement the
defendant’s youth, the defendant’s childhood difficulties, and its opinion on the defendant’s
rehabilitative potential. As such, the record in this matter demonstrates that the circuit court did
not fail to consider these factors.
¶ 115 The defendant was convicted of aggravated criminal sexual assault and sentenced to 30
years in IDOC. Where a sentence imposed is within the statutory range, it will not be deemed
excessive unless it is greatly at variance with the spirit and purpose of the law or is manifestly
disproportionate to the nature of the offense. Fern, 189 Ill. 2d at 54. After reviewing the record,
we conclude that the defendant has not demonstrated that the sentencing court failed to give the
proper weight to mitigating evidence in rendering the sentence. The existence of mitigating factors
does not require the circuit court to reduce a sentence from the maximum allowed. People v.
Pippen, 324 Ill. App. 3d 649, 651 (2001). The defendant’s 30-year sentence for these offenses did
not constitute an abuse of the circuit court’s discretion.
¶ 116 III. Conclusion
¶ 117 For the above reasons, we affirm the judgment of the circuit court of Christian County.
¶ 118 Affirmed.
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