People v. Cetwinski

2018 IL App (3d) 160174Opinion filed October 26, 2018
_____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
2018
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 12th Judicial Circuit,
) Will County, Illinois,
Plaintiff-Appellee, )
) Appeal No. 3-16-0174
v. ) Circuit No. 10-CF-1918
)
EDWARD R. CETWINSKI, ) Honorable
) Amy M. Bertani-Tomczak,
Defendant-Appellant. ) Judge, Presiding.
_____________________________________________________________________________
PRESIDING JUSTICE CARTER delivered the judgment of the court, with opinion.
Justice Lytton concurred in the judgment and opinion.
Justice Wright specially concurred, with opinion.
_____________________________________________________________________________
OPINION
¶1 Defendant, Edward R. Cetwinski, appeals following his conviction for criminal sexual
assault and aggravated criminal sexual abuse. He argues that certain comments from the circuit
court made during jury instructions served to hasten the jury’s verdict. He also argues that the
Illinois statutory scheme of lifetime penalties to which convicted sex offenders are subjected is
unconstitutional as applied to him. We affirm.
¶ 2 FACTS
¶3 The State charged defendant with one count of criminal sexual assault (720 ILCS 5/12­
13(a)(4) (West 2010)) and two counts of aggravated criminal sexual abuse (id. § 12-16(d)).
¶4 Prior to trial, the defense arranged for defendant to be examined by a licensed clinical
professional counselor. The resulting report listed a number of “Identified Risk Factors,” and
many more “Factors Mitigating Risk.” The cover letter to the report also noted that the results of
two diagnostic tests indicated defendant was a low risk to reoffend, though the actual test results
were not included in the report. The report variously described defendant as dominant,
narcissistic, obsessive, and immature, concluding that “[defendant’s] testing indicates very
severe character pathology. He has deeply ingrained dysfunctional personality patterns.”
¶5 The report also contained a number of caveats; for example, it noted:
“Such a severe ‘fake good’ response set exists that test findings are of
questionable validity as [defendant] minimized pathology and presented himself
in an unrealistically positive manner. While this minimization is probably
conscious, such responses may also be a direct result of [defendant’s] pathology.
Test findings are presented to indicate how [defendant] wishes others to view him
and may not be an accurate reflection of his true clinical picture.”
The report also indicated that “[f]urther clinical verification is needed to assist in the
interpretation of test findings in light of [defendant’s] unique history and present circumstances.”
Additionally, the report noted that the nature of the testing might tend to deemphasize
defendant’s strengths and that use of the results for purposes other than clinical screening could
be “misleading.” The court denied the defense’s request to introduce the report into evidence,
pointing out that the risk of recidivism would be irrelevant at trial.
2
¶6 On December 2, 2015, the case proceeded to a jury trial. At trial, S.G. testified that she
was born in 1994 and was a sophomore at Lincoln-Way Central High School (Lincoln-Way
Central) from the fall of 2009 through the spring of 2010. That school year, she participated on
the school bowling team. Defendant was one of the team’s assistant coaches. She referred to him
as “Coach Ed.”
¶7 S.G. testified that she and defendant initially exchanged phone numbers so that he could
help her get her bowling ball redrilled. They began sending text messages to one another after
Christmas in 2009, approximately midway through the bowling season. At first, their text
messages were only about bowling and coaching. Eventually, S.G. testified, they began
“[s]ending dirty texts to each other.” S.G. testified that the text messages eventually escalated
into a physical relationship. She testified that she and defendant had sexual contact on two
occasions. S.G. recalled being interviewed at the child advocacy center. She admitted that she
told the interviewer that they had only had sexual contact once. At trial, S.G. explained: “I was
scared and nervous and I didn’t want to talk to anybody about it and I smashed it together.”
¶8 S.G. testified that the first incident of sexual contact occurred when defendant gave her a
ride home after a bowling tournament. S.G. recalled that on the way home, defendant parked at a
bus barn in Manhattan and kissed her. S.G. testified that defendant then put his fingers inside her
vagina. Defendant then drove her home.
¶9 The second incident of sexual contact also occurred when defendant was driving S.G.
home. Defendant again parked by the bus barn and kissed S.G. This time, S.G. testified,
defendant asked her to move to the backseat. S.G. did so, moving to the middle of the back
bench of defendant’s van. She testified that defendant knelt in front of her, put his fingers in her
3
vagina, then put his mouth on her vagina. Defendant indicated to S.G. that he was about to
ejaculate, which S.G. took as the reason they did not engage in full intercourse on that occasion.
¶ 10 Steve Provis, the principal at Lincoln-Way Central, testified that defendant’s daughter,
N.C., and another student approached him on September 10, 2010. Based on that conversation,
Provis and another school official spoke to S.G., who indicated that she had been involved in
sexual activity with defendant. Provis brought in the school resource officer, who in turn
contacted the Manhattan Police Department.
¶ 11 Thomas Friddle testified that he was a detective with the Manhattan Police Department
on September 10, 2010, the day he was notified of S.G.’s allegations. As part of his
investigation, Friddle interviewed defendant, along with Officer Christopher Spencer. A video
recording of that interview was played for the jury.
¶ 12 In the interview, defendant confirmed that he was born in 1969 and that he has been an
assistant coach for the Lincoln-Way Central girls bowling team the previous season. Defendant
told Friddle that in December 2009 he gave S.G. a ride home after a bowling tournament.
Defendant initially stated that nothing unusual occurred on the ride home. He denied ever
making a sexual advance or attempting to kiss S.G. Defendant admitted that he and S.G.
exchanged occasional text messages but denied that they were sexual in nature.
¶ 13 Friddle informed defendant that investigators would be able to retrieve old text messages,
even if they had been deleted. Defendant then admitted that S.G. had sent him text messages that
had been sexually explicit. He engaged in sexual role-playing via text message with her. Some of
the role-playing involved being in his van. Defendant continued to deny that he ever had physical
contact with S.G. of any kind.
4
¶ 14 Friddle and Spencer pressed defendant to be honest with them. Defendant asked what
would happen to him if he was. Spencer replied:
“[M]y report and Officer [Friddle’s] report are going to reflect everything that
happened here today, okay; and when it gets time—if it gets that far—for
somebody to get the consequences for their actions, all that stuff is taken in to
consideration. Do you follow me?”
Friddle assured defendant that “[s]exting” with a minor and having physical sexual contact with
a minor were “[b]asically the same thing.” Defendant then admitted that on the night he drove
S.G. home, he parked the van and they began kissing. He touched her under her shirt, then they
moved to the back of his van. Defendant told the investigators that he performed oral sex on S.G.
but did not engage in sexual intercourse because he “prematurely finished.” Defendant later
provided a written statement acknowledging that he had performed oral sex on S.G.
¶ 15 Defendant’s father, Joseph Cetwinski, testified for the defense. He testified that he and
defendant were assistant coaches for the girls bowling team in the 2009-10 season. Joseph,
defendant, and N.C., would always drive together to the school before bowling events, except for
one time. Joseph recalled on that one occasion, defendant informed him that S.G. needed a ride.
Joseph drove to the school with N.C. that day. Defendant took S.G. home after the meet ended.
Joseph testified that nothing unusual happened that evening when defendant returned from taking
S.G. home.
¶ 16 Michele Stultz, defendant’s girlfriend, testified that in September 2010, N.C. informed
her that rumors regarding defendant were spreading at school. Stultz informed defendant, who
instructed Stultz to tell N.C. to talk to the school principal. Stultz relayed the instruction to N.C.
5
¶ 17 N.C., defendant’s daughter, testified that in September 2010, her friends informed her
that S.G. was bragging about sleeping with defendant. N.C. told Stultz because defendant was in
Missouri at the time. On Stultz’s advice, N.C. told Provis of the rumors. N.C. also testified that a
few days after she went to the principal, she overheard S.G. in the hallway saying that “she made
it all up, she was just trying to be part of the popular kids who all had older boyfriends and did
stuff with them.” On cross-examination, N.C. agreed that twice during the bowling season she
and Joseph drove to and from school for bowling meets without defendant. N.C. did not contact
school authorities or the police when she overheard S.G. state that she “made it all up.”
¶ 18 Defendant testified that S.G. sent him flirtatious or sexual related text messages and that
he responded. Defendant admitted that on one occasion during the bowling season, S.G. asked
him for a ride to school for the meet. Defendant picked S.G. up at her house and drove her to the
school. After the meet, he drove her home. He never stopped at a bus barn and did not try to kiss
S.G. They did not go into the back of his van, and he did not perform oral sex on her. He never
did anything physically sexual with S.G.
¶ 19 At some point in 2010, defendant was in Missouri when he received a phone call from
Stultz regarding the present allegations. Defendant told Stultz to instruct N.C. to talk to the
school principal. When defendant returned from Missouri, he had a “brief conversation” with
N.C. in which she told him that she had gone to the principal’s office.
¶ 20 Defendant recalled going to the Manhattan Police Department to be interviewed by
Friddle and Spencer. Defendant testified that as he walked to the interview room, he overhead
Friddle and Spencer engaging in “a conversation about an incident that had happened with
somebody having a premature ejaculation during a sexual event.” Defendant thought that
description “sounded pretty similar” to what he had heard from N.C. Regarding the interview,
6
defendant explained that he admitted to doing something that he did not actually do. Defendant
continued:
“I’ve never been in a situation such as that before and I was very nervous. And I
was under the assurance that if I told them details of an incident that happened I
would be able to go home that evening and that they would work with me. So I
just told them what I had already heard prior to coming in.”
¶ 21 On cross-examination, defendant testified that he was a high school graduate and was
currently enrolled in college. He was 41 years old at the time of his interview at the police station
and considered himself to be of above-average intelligence. Defendant signed his written
statement approximately 2½ hours after arriving at the police station, though, he testified, it felt
like much longer. There were two breaks in the interview.
¶ 22 Sheri Krohn testified in rebuttal that she was the bus driver for all of the bowling team’s
meets and tournaments during the 2009-10 season. At one meet, she noticed S.G. wearing
defendant’s jacket and “following him around a lot.” She told defendant to “be careful because
[S.G.] had a crush on him.”
¶ 23 The State also recalled Friddle on rebuttal. Friddle denied having any conversation with
defendant or Spencer regarding the investigation while the three men were together just prior to
the interview.
¶ 24 Following closing arguments, the court tendered instructions to the jury. The court
explained that the jury would eat lunch in the jury room and select a foreperson prior to
commencing deliberations. After conferring with the attorneys, the court continued:
“Okay. All right. I wanted to talk with the attorneys. I know that some of you
want to go outside for a few minutes. So the agreement is that before you do
7
anything you are going to go outside, have your cigarette, and that’s okay,
because once you get in there you can’t leave. And once you start deliberating,
you can’t leave. So that is what will happen. Those who want to go out and have a
cigarette, go ahead. And then when you come back to the room, you are not
allowed to leave after that. Let’s see, it’s ten to three now. Make sure you are
back in by 3:00 ***. So make sure everybody is back in there at three to start your
deliberations. If you are out there smoking, you cannot talk about the case. ***
Just simply enjoy your tobacco and come back, okay?”
¶ 25 The jury found defendant guilty on all counts. The signed verdict forms were file-
stamped December 7, 2015, 4:55 p.m. 1
¶ 26 Defendant subsequently filed a motion for new trial. In the motion, defendant argued,
inter alia, that “the jury failed to give proper weight and/or deference to the task of deliberating.”
In support of this argument, defendant alleged that the jury had been released for deliberations at
3 p.m., “following a brief, Court-permitted smoke break,” and that defense counsel received a
phone call from the court clerk at 4:10 p.m. notifying him that the jury had reached a verdict.
The court denied defendant’s motion.
¶ 27 On January 26, 2016, the court sentenced defendant to a term of six years’ imprisonment
for criminal sexual assault and four years’ probation for aggravated criminal sexual abuse. The
court noted that defendant would also be subject to mandatory reporting as a sex offender upon
his release.
¶ 28 ANALYSIS
1
Jury deliberations began on December 7.
8
¶ 29 On appeal, defendant argues that the circuit court’s comments regarding the jurors’
ability to leave the room while deliberating served to hasten the jury’s verdict, thus denying
defendant a fair trial. He also argues that the statutory scheme of lifetime penalties for a
convicted sex offender in Illinois is unconstitutional as applied to him.
¶ 30 I. Jury Deliberations
¶ 31 Defendant first contends that the circuit court’s repeated admonitions that the jury would
not be able to leave the jury room once it began deliberating served to hasten the verdict.
Defendant urges that this conclusion is bolstered by the relatively brief period in which the jury
actually deliberated. 2
¶ 32 It is improper for the circuit court to deliver any message or instruction to the jury that
might have the effect of hastening the verdict. People v. Golub, 333 Ill. 554, 561 (1929). “The
test is whether, under the circumstances, the language used by the court actually coerced or
interfered with the deliberations of jurors to the prejudice of a defendant.” People v. Foster, 394
Ill. App. 3d 163, 166-67 (2009).
¶ 33 Initially, defendant concedes that he failed to properly preserve this issue for appeal.
However, he invites this court to relax the forfeiture rules under the Sprinkle doctrine. In
Sprinkle, our supreme court held that forfeiture rules may be relaxed as to issues of the circuit
court’s conduct, where a contemporaneous objection would be unavailing or even harmful to a
defendant’s case. People v. Sprinkle, 27 Ill. 2d 398, 400-01 (1963). The supreme court has since
explained that “Sprinkle was primarily concerned with the risk of alienating the jury by
2
Defendant asserts that the jury deliberated for 1 hour and 10 minutes before reaching a verdict.
The only source for this calculation is defense counsel’s own assertion found in the motion for new trial.
The file-stamped jury forms indicate that deliberations took, at the very most, 1 hour and 55 minutes. In
any event, the jury’s deliberations may safely be characterized as relatively brief, and the outcome of this
appeal does not turn on the precise number of minutes elapsed.
9
appearing disrespectful of the court’s authority.” People v. McLaurin, 235 Ill. 2d 478, 487
(2009). The Sprinkle doctrine has also been applied in select contexts where, even in the absence
of a jury, an objection would likely “ ‘have fallen on deaf ears.’ ” Id. at 488 (quoting People v.
Davis, 378 Ill. App. 3d 1, 10 (2007)).
¶ 34 The logic underlying Sprinkle must be weighed against the strong policy in favor of
preserving errors for review. The McLaurin court emphasized this point, noting that “[f]ailure to
raise claims of error before the trial court denies the court the opportunity to correct the error
immediately and grant a new trial if one is warranted, wasting time and judicial resources.” Id.Based on this policy, the McLaurin court recognized that the relaxation of forfeiture had rarely
been invoked in noncapital cases, and that such relaxation is appropriate “only under
extraordinary circumstances.” Id.¶ 35 We decline to apply the Sprinkle doctrine in the present case. Had defense counsel felt
that the court’s comments were in error, he could easily have requested a brief sidebar once those
comments had concluded. This would have provided the court an opportunity to reconsider its
remarks and, if the court found it necessary, issue additional instructions emphasizing that the
jurors should be under no rush. It is difficult to envision how pursuing this course of action
would have undermined defense counsel’s credibility in the eyes of the jury, and defendant has
provided no explanation for why such an objection would have fallen on deaf ears. See id. Not
only did counsel’s failure to object deprive the court of an opportunity to potentially issue
corrective instructions, his failure to raise the issue in the motion for new trial deprived the court
of an opportunity to grant a new trial. While that motion did reference the jury’s short
deliberation period, it did not claim any error based on the circuit court’s remarks, as defendant
argues on appeal.
10
¶ 36 Because we decline to relax forfeiture principles in this case, we review defendant’s
claim for plain error. The first step in any plain error analysis is to determine whether any error
was committed. People v. Piatkowski, 225 Ill. 2d 551, 565 (2007). We acknowledge that the
parties dispute whether this court should apply a de novo or an abuse of discretion standard of
review. We need not settle that dispute because, under either standard, it is clear that the circuit
court committed no error in its comments.
¶ 37 Defendant insists that the court’s comments implied that the members of the jury would
be forced to remain in the jury room, without exception, until they reached a verdict. In essence,
the defendant argues, the jury would be trapped in the room. This interpretation is simply not
tenable when taking the court’s remarks in context. We find it is unlikely that any juror would
take those comments to mean that they would be confined in the jury room against their will.
¶ 38 An examination of the court’s full remarks makes clear that the court was specifically
addressing any jurors that wished to have a cigarette before deliberations began, as it referenced
smoking or tobacco four times within those brief remarks. The court was merely informing the
jurors that they would be afforded no smoking breaks after deliberations had begun. Defendant
insists that the court “did not restrict its direction to the smokers.” Yet the court clearly prefaced
its smoking-related instructions by stating “I know that some of you want to go outside for a few
minutes.” Short of physically separating the smokers from the nonsmokers, it is unclear what
steps defendant would have had the court take to address the smokers.
¶ 39 Indeed, the court’s innocuous smoking restriction in the present case is a far cry from the
example of the egregious treatment of a jury in the late seventeenth century, a formative period
in the common law with respect to jury control. In the famous trial of William Penn and William
11
Mead, the court repeatedly refused to accept a verdict with which it did not agree. The court
instructed the jury:
“Gentlemen, you shall not be dismissed till we have a verdict that the court will
accept; and you shall be locked up, without meat, drink, fire, and tobacco; you
shall not think thus to abuse the court; we will have a verdict, by the help of God,
or you shall starve for it.” Trial of Penn and Mead (1670) 6 How. 951, 963.
The jurors in that case were only able to escape their detention after requesting the Court of
Common Pleas to issue a writ of habeas corpus. Bushell’s Case (1729) 84 Eng. Rep. 1123; 6
How. 999 (Common Pleas) (a seminal case discussing the role of jurors and establishing the
principle of jury nullification). 3 While the Penn court’s actions were objectionable even in 1670,
an echo of the trial judge’s sentiments could still be found in Illinois law in the nineteenth
century. An 1845 law required that an officer be sworn to attend to the jury and “keep them
together without meat or drink, water excepted, unless by leave of the court, until they shall have
3
As a matter of historical background, some of the jurors in Penn and Mead’s case, after having
won their discharge from custody via habeas corpus, attempted to sue the judge (the Recorder of London)
and other officials responsible for their incarceration for false imprisonment. Each time, their attempts
were rejected by the English courts. Hamond Against Howell (1796) 86 Eng. Rep. 816; 1 Mod. 184
(Common Pleas); Bushell’s Case (1796) 86 Eng. Rep. 777; 1 Mod. 119 (King’s Bench); Hamond Against
Howell (1793) 86 Eng. Rep. 1035; 2 Mod. 218 (Common Pleas 1678). This line of cases provided an
early statement of the now well-settled tenet of judicial immunity that states, generally, a private action
may not be commenced against a judge “for what they should do in execution of their office” even if in
error. Hamond Against Howell (1796) 86 Eng. Rep. 816, 817; 1 Mod. 184, 185; see also Hamond Against
Howell (1793) 86 Eng. Rep. 1035, 1036-37; 2 Mod. 218, 220-21 (“But the whole Court were of opinion,
that the bringing of [the juror’s] action was a greater offence than the fining of [the juror], *** and that it
was a bold attempt both against the Government and justice in general.”); see also, e.g., Floyd and
Barker, (1572) 77 Eng. Rep. 1305 (Star Chamber) holding that a judge could not be prosecuted in another
court for an alleged criminal conspiracy in his handling of a murder trial); Case of the Marshalsea, (1572)
77 Eng. Rep. 1027, 1028 (King’s Bench) (no immunity when the court was without jurisdiction); Pulliam
v. Allen, 466 U.S. 522, 549 (1984) (“It has long been recognized at common law that judicial immunity
protects only those acts committed within the proper scope of a judge’s jurisdiction, but provides no
protection for acts committed in excess of jurisdiction.”). The holding in Pulliam was abrogated in part by
the Federal Courts Improvement Act of 1996, Pub. L. No. 104-317, § 309(c), 110 Stat. 3847, 3853
(codified at 42 U.S.C. § 1983 (2000)).
12
agreed upon their verdict.” Ill. Rev. Stat. 1845, ch. 30, § 189; 4 see also East St. Louis Connecting
Ry. Co. v. Eggmann, 71 Ill. App. 32, 35 (1897) (“If the court had kept the jury out until it
convened the next morning, ‘without meat or drink, fire or light,’ as in William Penn’s case,
what good would it have done?”). Against this historical backdrop, it is difficult to discern how
the jury’s limitation to but a single smoking break in the present case could have been of any
legal import.
¶ 40 In responding to the State’s assertion that the court was merely addressing the smokers,
defendant briefly contends: “[t]hat instruction would have put a great deal of pressure on the
jurors who were addicted to nicotine to quickly arrive at a verdict.” This lone sentence,
unsupported by case law or facts of records, is the extent of defendant’s argument on that
particular point. Notably, the supreme court of Ohio has rejected that very argument, writing:
“[The defendant’s] claim that this juror suffered from nicotine withdrawal is
totally speculative. The simple request, ‘can we smoke?’ does not indicate any
type of emergency. There is no support in the record for [the defendant’s] claim
that the juror who wished to smoke was under any additional stress occasioned by
‘mentally wanting, and physically needing to smoke tobacco.’ ” State v. Elmore,
111 Ohio St. 3d 515, 2006-Ohio-6207, 857 N.E.2d 547, ¶ 94.
Defendant’s argument here is similarly speculative.
¶ 41 Because we find no error, there can be no plain error. However, we write further to point
out that even if the circuit court’s comments could be construed as error, defendant has failed to
demonstrate second-prong plain error. In People v. Thompson, 238 Ill. 2d 598, 614 (2010), our
4
The present version of this statute requires only that “When the jury retires to consider its verdict
an officer of the court shall be appointed to keep them together and to prevent conversation between the
jurors and others ***.” 725 ILCS 5/115-4(l) (West 2016).
13
supreme court found that the circuit court’s failure to properly admonish a jury of the Zehr
principles (People v. Zehr, 103 Ill. 2d 472 (1984)) would amount to a second-prong or structural
error only where that failure resulted in a biased jury. Noting that the defendant had the burden
of persuasion in plain error analysis, the court rejected the defendant’s plain error argument on
the grounds that he had “not presented any evidence that the jury was biased in this case.”
Thompson, 238 Ill. 2d at 614.
¶ 42 While the error contemplated in Thompson is surely different from that in question here,
we find the case to be analogous. A finding that the verdict in defendant’s case was produced by
a jury that believed it was strictly confined to a room until such time as it delivered a verdict
would undoubtedly constitute second-prong plain error, as it would undermine defendant’s right
to a fair trial and challenge the integrity of the judicial process. But even if the circuit court’s
comments could be construed as giving that impression, defendant has presented no evidence
that the verdict was actually hastened.
¶ 43 Initially, the demonstration of such an effect is an especially high hurdle in cases
concerning a court’s initial, predeliberation instructions to a jury. Reflecting this point, reversible
error for hastening the verdict has been exclusively found in the case of comments made in the
middle of a jury’s deliberations. For example, in People v. Friedman, 144 Ill. App. 3d 895, 903­
04 (1986), the jurors deliberated for four hours before the circuit court informed them that
overnight accommodations for sequestration would soon be made. The jury returned a verdict
five minutes later, and the reviewing court found that the verdict had been improperly hastened.
Similarly, in People v. Branch, 123 Ill. App. 3d 245, 250 (1984), the jury deliberated for
4½ hours before informing the court that it was deadlocked. The court addressed the jury,
referencing the possibility of sequestration, and a verdict was delivered 10 minutes later. Again,
14
the reviewing court found reversible error. Even in the foundational cases for this particular point
of law—Farnham v. Farnham, 73 Ill. 497, 502 (1874), and Golub, 333 Ill. at 561—at issue were
comments made in the middle of deliberations; even then, both courts found no reversible error.
Defendant has failed to cite a single case—and this court is unaware of any—in which hastening
the verdict was found to be a reversible error based upon the circuit court’s initial instructions to
the jury.
¶ 44 In cases concerning intradeliberational instructions, the effect on the jury may be easily
measured by comparing the time spent deliberating before the instruction to the time spent
deliberating after, as did the courts in Friedman and Branch. In this case, defendant only cites to
the relatively short period in which the jury deliberated as evidence of a hastened verdict.
However, as the Ramos court pointed out, claiming the deliberation period as probative evidence
of haste is problematic:
“Defendant points to the duration of the deliberations to support a
hastening influence by the trial judge. Yet, one could just as reasonably conclude
that the verdict was hastened by the significant and compelling evidence of
defendant’s guilt. We do not perceive it is our place to determine what is the
proper duration of time for deliberations. Moreover, defendant’s argument
presents a logical fallacy of the post hoc ergo propter hoc variety we are not
prepared to credit. In effect, defendant contends, because the deliberations were—
in his view—short or hasty, they were hastened by the remarks of the trial judge.
We disagree with the premise and the conclusion.” People v. Ramos, 396 Ill. App.
3d 869, 881 (2009).
15
¶ 45 We would reach the same conclusion here. Given the significant and compelling
evidence against defendant—including a video recording of his own confession—it is perfectly
plausible, if not expected, that the jury could reach a prompt verdict. The circuit court’s remarks
that the jury would not be afforded multiple smoking breaks were not improper, and the
understandably prompt verdict is not evidence that the jury reached its verdict under any form of
duress.
¶ 46 II. Constitutionality of Sex Offender Statutory Scheme
¶ 47 Defendant next argues that the statutory scheme of lifetime penalties to which he is
subject as a convicted sex offender and sexual predator is unconstitutional as applied to him on
the grounds that it violates the United States Constitution’s prohibition of cruel and unusual
punishment (U.S. Const., amend. VIII) and the Illinois Constitution’s proportionate penalties
clause (Ill. Const. 1970, art. I, § 11).
¶ 48 Importantly, defendant challenges the constitutionality of several statutes pertaining to
convicted sex offenders, rather than a single statute. The primary piece of that statutory scheme
is the Sex Offender Registration Act (SORA) (730 ILCS 150/1 et seq. (West 2016)), which,
inter alia, acts to classify defendant as a sexual predator and imposes a lifelong duty to register.
The statutory scheme also includes the Sex Offender Community Notification Law (Notification
Law) (730 ILCS 152/101 et seq. (West 2016)), as well as dispersed statutory sections prohibiting
sex offenders’ presence in or around schools and parks (720 ILCS 5/11-9.3 (West 2016)),
prohibiting sex offenders’ petition for a name change (735 ILCS 5/21-101(b) (West 2016)), and
requiring sex offenders to renew their driver’s license annually (730 ILCS 5/5-5-3(o) (West
2016)).
¶ 49 A. Punishment
16
¶ 50 The eighth amendment to the United States Constitution prohibits the imposition of
“cruel and unusual punishments.” U.S. Const., amend. VIII. “The concept of proportionality is
central to the Eighth Amendment.” Graham v. Florida, 560 U.S. 48, 59 (2010). The
proportionate penalties clause of the Illinois Constitution dictates 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. Both constitutional provisions
explicitly reference punishment or penalties. Thus, the first step in a constitutional challenge
under these provisions is to determine whether the statute—or, in this case, statutes—actually
impose a punishment or penalty that would be subject to constitutional restrictions.
¶ 51 In 2000, our supreme court concluded that neither SORA nor the Notification Law
constituted punishment such that they implicated the eighth amendment or the proportionate
penalties clause. People v. Malchow, 193 Ill. 2d 413, 421, 424 (2000). However, the statutory
scheme has been amended numerous times since Malchow, with additional requirements and
restrictions placed upon sex offenders. Defendant contends that the exponential growth of the
statutory scheme renders the Malchow decision stale and argues that this court should conduct a
new inquiry into whether that statutory scheme is now punitive in nature.
¶ 52 Recently, this court in People v. Tetter, 2018 IL App (3d) 150243, ¶ 45, described the
post-Malchow evolution of SORA:
“[The legislature has] imposed specific restrictions on where sex offenders may
be present or live. See 720 ILCS 5/11-9.3, 11-9.4-1 (West 2012). Sex offenders
cannot have jobs where they work, at any time for any reason, within 500 feet of a
school or public park or within 100 feet of a school bus stop. Id. SORA also
effectively bars offenders from working any job requiring extensive travel; sex
17
offenders must notify, in person, both Illinois law enforcement and the
destination’s law enforcement when they are away from home for three or more
days. 730 ILCS 150/3(a) (West 2012). The amendments since Malchow ‘directly
restrict where [a sex offender] can live, work, and even move about his
community.’ People v. Avila-Briones, 2015 IL App (1st) 132221, ¶ 51. Thus, we
are faced with very different and more restrictive statutes than those addressed in
Malchow ***.”
More recently, in People v. Kochevar, 2018 IL App (3d) 140660, ¶ 56, a different panel of our
court concluded that the court’s duty to reevaluate challenged legislation “is triggered in a
situation such as this in which a claim has been raised that statutes deemed civil and regulatory
appear to have evolved and become penal.”
¶ 53 In turn, both the Tetter and Kochevar courts embarked on sweeping analyses of whether
the statutory scheme, as presently constituted, qualifies as punishment triggering eighth
amendment and proportionate penalty clause restrictions. Tetter, 2018 IL App (3d) 150243,
¶¶ 47-69; Kochevar, 2018 IL App (3d) 140660, ¶¶ 56-63. As part of that analysis, the Tetter
court pointed out that several other states have recently found that sex offender registration
statutes do constitute punishment. Tetter, 2018 IL App (3d) 150243, ¶ 69 (citing Doe v.
Department of Public Safety & Correctional Services, 62 A.3d 123 (Md. 2013), Gonzalez v.
State, 980 N.E.2d 312, 321 (Ind. 2013), Starkey v. Oklahoma Department of Corrections, 2013
OK 43, 305 P.3d 1004, State v. Letalien, 2009 ME 130, 985 A.2d 4, State v. Williams, 129 Ohio
St. 3d 344, 2011-Ohio-3374, 952 N.E.2d 1108, and Commonwealth v. Baker, 295 S.W.3d 437(Ky. 2009)). Ultimately, the Tetter court concluded: “Although the sex offender statutes’
restrictions may present fair and just punishment in many or most cases, they nonetheless
18
constitute punishment. Most notably, sex offender statutes punish sex offenders by restricting
their liberty to live where they wish and move about the community.” Id. Applying the same
analysis, the Kochevar court reached the same conclusion, finding that “the sex offender
statutory scheme has morphed from civil regulation into something that is indeed punitive.”
Kochevar, 2018 IL App (3d) 140660, ¶ 63.
¶ 54 The analyses in Tetter and Kochevar were exhaustive, and they obviate the need for a
third panel of this court to submit its own unique opinion on the matter. We wholly adhere to the
logic and conclusions set forth in Tetter and Kochevar and find that statutory scheme of lifetime
penalties to which sex offenders are subjected constitutes punishment under the eighth
amendment and proportionate penalties clause. We now address whether this defendant’s
punishment is unconstitutionally disproportionate as applied to him.
¶ 55 B. Proportionality
¶ 56 The eighth amendment prohibition on cruel and unusual punishment “ ‘forbids only
extreme sentences that are grossly disproportionate to the crime.’ ” (Internal quotation marks
omitted.) Graham, 560 U.S. at 60 (quoting Harmelin v. Michigan, 501 U.S. 957, 997, 1000-01
(1991) (Kennedy, J., concurring in part and concurring in the judgment, joined by O’Connor and
Souter, JJ.)). Similarly, a challenge brought under the proportionate penalties clause “contends
that the penalty in question was not determined according to the seriousness of the offense.”
People v. Sharpe, 216 Ill. 2d 481, 487 (2005). At least in this regard, the proportionate penalties
clause is synonymous with the eighth amendment’s cruel and unusual punishment clause. Id. at
517.
¶ 57 In Tetter, this court found, as a matter of first impression, that a proportionality challenge
to the statutory scheme applicable to sex offenders is best addressed under the three-factor
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inquiry set forth in Solem v. Helm, 463 U.S. 277, 290-92 (1983). Tetter, 2018 IL App (3d)
150243, ¶ 73; see also Kochevar, 2018 IL App (3d) 140660, ¶ 64 (applying the same test). We
adhere to that conclusion and adopt the same approach here. We begin by considering the gravity
of the offense in conjunction with the harshness of the penalty. Solem, 463 U.S. at 290-91. We
then consider whether “more serious crimes are subject to the same penalty or to less serious
penalties” as an indication that the punishment is excessive. Id. at 291. As the third factor, the
Solem Court found that “courts may find it useful to compare the sentences imposed for
commission of the same crime in other jurisdictions.” Id. at 291-92. In Tetter, however, this court
reasoned that the third Solem factor is of little value in the present context because “sex offender
statutes’ restrictions and offenders’ prison sentences vary, sometimes dramatically, by state.”
Tetter, 2018 IL App (3d) 150243, ¶ 73.
¶ 58 Defendant was convicted of criminal sexual assault, a Class 1 felony. 720 ILCS 5/12­
13(a)(4), (b)(1) (West 2010). 5 Only aggravated criminal sexual assault (720 ILCS 5/11-1.30
(West 2016)) and predatory criminal sexual assault of a child (id. § 11-1.40), both Class X
felonies, are per se categorized as greater offenses in Illinois. 6 In contrast, many more felony
offenses categorized as a lesser degree are subject to SORA requirements. E.g., id. § 10-5.1(g)(1)
(Class 4 luring of a minor); id. § 11-25(b) (Class 4 grooming); id. § 11-18.1(c) (Class 2 or 3
patronizing a minor engaged in prostitution). The commission of certain misdemeanor offenses
may also subject an offender to SORA requirements. E.g., id. § 11-9.1(a), (c)(1) (Class A sexual
exploitation of a child); id. § 10-5.1(b), (g)(2) (Class B luring of a minor).
5
The criminal sexual assault statute has since been renumbered. See 720 ILCS 5/11-1.20(a)(4)
(West 2016). The offense is now, as it was in 2010, a Class 1 felony. Id. § 11-1.20(b)(1). For comparison
purposes, we will cite the most recent edition of the Criminal Code of 2012, as it would be most reflective
of “our community’s evolving standard of decency.” People v. Miller, 202 Ill. 2d 328, 340 (2002).
6
Certain convictions for child pornography or promoting juvenile prostitution may rise to the
level of a Class X felony, depending on the factual circumstances underlying the conviction. 720 ILCS
5/11-20.1(c), (c-5) (West 2016); id. § 11-14.4(a)(3), (d).
20
¶ 59 Under SORA, convictions for certain enumerated offenses trigger the “sexual predator”
designation, through which offenders are made subject to the SORA requirements for life. 730
ILCS 150/2(E)(7) (West 2016). Even within this select group of offenses, criminal sexual assault
is still not the least serious offense, as the list includes misdemeanor offenses (720 ILCS 5/10­
5.1(b), (g)(2) (West 2016)) and lesser felonies (id. § 11-1.60(a), (g)). In short, numerous lesser
offenses are subject to SORA, and even some lesser offenses are subject to SORA’s sexual
predator designation. It is simply indisputable that defendant has been convicted of one of
Illinois’s most serious sex offenses.
¶ 60 A qualitative look at defendant’s offense is of no help to defendant’s argument.
Defendant was 40 years old when he performed oral sex on a sophomore girl at Lincoln-Way
Central. Moreover, it was only because defendant was an assistant coach on S.G.’s bowling team
that defendant was in a position to commit that offense. This exploitation of a “position of trust,
authority, or supervision in relation to the victim” is considered particularly egregious by the
law. Id. § 11-1.20(a)(4). Indeed, it was this factor that rendered defendant’s actions a Class 1
felony. Id. § 11-1.20(b)(1).
¶ 61 To put defendant’s conduct in context, it is helpful to consider the two recent cases in
which this court found the statutory scheme in question to be unconstitutional as applied. In
Tetter, the defendant was 21 years old when he met the victim, with whom he was close in age,
on a social networking website. Tetter, 2018 IL App (3d) 150243, ¶¶ 1, 5. The two eventually
entered into a consensual sexual relationship. Id. ¶ 8. That relationship continued after the
defendant learned that the victim was actually 16 years old. Id. ¶ 9. The victim’s mother alerted
authorities after she learned that the victim had become pregnant. Id. ¶ 13. The defendant was
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convicted of aggravated criminal sexual abuse, a Class 2 felony. Id. ¶ 5. The circuit court
sentenced him to 180 days in the county jail. Id. ¶ 21.
¶ 62 In Kochevar, the defendant was 16 years old when he entered into a relationship with the
14-year-old victim. Kochevar, 2018 IL App (3d) 140660, ¶ 4. The defendant and the victim
attended high school together. Id. Sometime after the defendant turned 18 years old, the
relationship became sexual in nature. Id. Upon learning of the relationship, the victim’s parents
alerted authorities. Id. The defendant was charged with and convicted of misdemeanor criminal
sexual abuse. Id. ¶ 1. The court sentenced defendant to 90 days in jail (with all but 10 days
suspended) and 24 months’ probation. Id.
¶ 63 While the defendants in Tetter and Kochevar were young men engaged in criminal sexual
relationships with girls slightly younger than themselves, defendant here was 25 years the
victim’s senior. 7 Further, defendant took advantage of his position of trust and authority over
S.G., a fact not present in Tetter or Kochevar. On a fundamental level, defendant’s conduct in the
present case is more offensive to “our community’s evolving standard of decency.” People v.
Miller, 202 Ill. 2d 328, 340 (2002). This conclusion is reflected in the sentencing ranges in each
case; while the sentences in both Tetter and Kochevar were measured in days in the county jail,
defendant was sentenced to six years’ imprisonment, two years above the minimum for a Class 1
felony. See 730 ILCS 5/5-4.5-30(a) (West 2014).
¶ 64 In attempting to minimize the gravity of his offense on appeal, defense emphasizes that
“there was no force used in the alleged incidents[ ] and there was only one victim.” Initially, we
note that criminal sexual assault is a Class 1 felony whether it is the result of the use of force or
7
The notion that the offender’s age and the difference in ages, rather than just the victim’s age,
bears on the seriousness of an offense is reflected in certain criminal sex crime statutes. See, e.g., 720
ILCS 5/11-1.50(b), (c) (West 2016); id. § 11-1.60(d); id. § 11-6.6(b).
22
the result of an older person taking advantage of their position of trust or authority over a minor
(see 720 ILCS 5/11-1.20 (West 2014)), belying defendant’s implication that his offense is
inherently less serious in nature than forcible assault. Further, the fact that there was only one
victim does nothing to diminish the seriousness of the offense, it merely means that defendant
only committed one offense, rather than two or three.
¶ 65 While defendant’s offense was serious, we must also be careful not to downplay the
severity of the punishment defendant faces. As a sexual predator, defendant is subject to a
lifetime of SORA and the Notification Law requirements, among other restrictions. As the
Kochevar court described, defendant “faces a lifetime of employment rejection, public disdain,
impairment of his enjoyment of parental involvement and his discharge of parental
responsibilities, curtailment of his liberty to live where he chooses and to move freely about his
community, suspicion, and permanent stigma.” Kochevar, 2018 IL App (3d) 140660, ¶ 49.
¶ 66 Nevertheless, we cannot conclude that the punishment is grossly disproportionate to the
offense in this case. Defendant’s offense was among the most serious sex offenses that can be
committed in the State of Illinois. While some greater offenses are subject to the same statutory
scheme pertaining to sex offenders, many lesser offenses are subject to that same scheme. As
applied to defendant, the statutory scheme including SORA and the Notification Law comports
with the eighth amendment to the United States Constitution, as well as the Illinois
Constitution’s mandate that all penalties be determined according to the seriousness of the
offense.
¶ 67 In reaching this conclusion, we are mindful of defendant’s assertion that his classification
as a sexual predator, and the resultant disabilities and restraints, involved “no consideration of
rehabilitative potential or restoration to useful citizenship.” To that point, defendant repeatedly
23
stresses that the instant case was his first criminal conviction of any kind and that he had
previously lived a law-abiding life. He also urges that “the positive aspects of the sex offender
report[ ] strongly suggest that the offenses Defendant was convicted of here are unlikely to
recur.”
¶ 68 Those facts—namely, defendant’s lack of criminal history and his claimed low risk of
recidivism—do not bear on the seriousness of the instant offense, but on defendant’s
rehabilitative potential. The sexual assault of a minor is not somehow a less egregious offense if
it is simply the first time that particular offender has sexually assaulted a minor. For that reason,
we construe defendant’s argument based on those facts as a separate challenge to the second
portion of the proportionate penalties clause. Of course, in addition to requiring penalties to be
determined according to the seriousness of the offense, the proportionate penalties clause
mandates that penalties also be issued “with the objective of restoring the offender to useful
citizenship.” Ill. Const. 1970, art. I, § 11; see also Sharpe, 216 Ill. 2d at 524-25 (dividing
proportionate penalties challenge into distinct sections corresponding with the proportionate
penalties clause). Our supreme court has consistently considered the two proportionate penalties
clause requirements separately. E.g., People v. Coleman, 166 Ill. 2d 247, 261 (1995).
¶ 69 To be sure, defendant’s history and character are primary considerations when evaluating
a defendant’s rehabilitative potential. E.g., People v. Flores, 404 Ill. App. 3d 155, 159 (2010).
Further, it stands to reason that a defendant’s relative risk of recidivism is also a proper
consideration, as one less likely to reoffend must have a greater chance of restoration to useful
citizenship. However, the nature and circumstances of the offense are themselves factors to be
considered in the determination of rehabilitative potential. Id.24
¶ 70 While defendant certainly had an unblemished record prior to committing the present
offense, his risk of recidivism is far less clear. Defendant posits that “the positive aspects of the
sex offender report[ ] strongly suggest that the offenses Defendant was convicted of here are
unlikely to recur.” The “negative aspects” of that report, such as the conclusions that defendant
suffered from a “very severe character pathology” and had “deeply ingrained dysfunctional
personality patterns” suggest a different story. Most importantly though, the sex offender report
is equivocal. The report itself cautions that the test findings were of “questionable validity” on
the grounds that defendant provided such an extreme set of “fake good” answers so as to present
himself in an unrealistically positive manner. The report concludes that the use of the results for
purposes other than clinical screening could be “misleading.” Indeed, even defendant on appeal
concedes that “the sex offender evaluation may not be entirely valid.”
¶ 71 The very serious nature of the offense, defendant’s history and character, and the sex
offender report provide varying accounts of defendant’s rehabilitative potential. It should also be
noted that even when one is mandatorily subjected to the sex offender statutory scheme, the
circuit court may still tailor its actual sentence to the defendant’s rehabilitative potential. Here,
presumably based upon the objective of restoring defendant to useful citizenship, the circuit
court sentenced him to six years’ imprisonment when he was eligible for up to 15 years. We
conclude that the record fails to demonstrate that defendant is of such great rehabilitative
potential that his classification as a sexual predator, with the ensuing requirements and
disabilities under SORA and the remainder of the statutory scheme, rendered the circuit court
unable to fashion a sentence that properly contemplated the objective of restoring defendant to
useful citizenship.
25
¶ 72 In summary, the statutory scheme applicable to sex offenders, including defendant’s
classification as a sexual predator, is not unconstitutional as applied to defendant under the
eighth amendment to the United States Constitution. Nor is that statutory scheme
unconstitutional as applied to defendant under the Illinois Constitution’s requirement that
penalties be determined according to the seriousness of the offense. Finally, the statutory scheme
is not unconstitutional as applied to defendant under the Illinois Constitution’s requirement that
penalties be determined with the objective of restoring the offender to useful citizenship.
¶ 73 The judgment of the circuit court of Will County is affirmed.
¶ 74 Affirmed.
¶ 75 JUSTICE WRIGHT, specially concurring:
¶ 76 I agree that the circuit court’s comments prior to jury deliberations did not serve in any
way to hasten the verdict. I also agree that defendant’s subjugation to the statutory scheme of
lifetime consequences, as a convicted sex offender, is not unconstitutional. For that reason, I
concur in the judgment of my respected colleagues.
¶ 77 I write specially, however, because I would follow the holding in Malchow, where our
supreme court held that the statutory scheme at issue in this appeal is not punitive. This decision
has never been overruled. Respectfully, in spite of this court’s decision in Tetter, I submit our
court does not have the discretion to diverge from the holdings of our supreme court. Rosewood
Care Center, Inc. v. Caterpillar, Inc., 366 Ill. App. 3d 730, 734 (2006) (“It is well settled that
when our supreme court has declared law on any point, only it can modify or overrule its
previous decisions, and all lower courts are bound to follow supreme court precedent until such
precedent is changed by the supreme court.”).
26
¶ 78 I also write separately because I strongly disagree that the analysis in Tetter, on which
this court now relies, is exhaustive. In my dissent in Tetter, I characterized the outcome in Tetter
as a “hazy holding.” People v. Tetter, 2018 IL App (3d) 150243, ¶ 90. My position has not
changed. I conclude that the majority in Tetter abandoned the controlling precedent established
by Malchow in an unsupported, conclusory fashion. In Tetter, the majority summarily declared
that the increasing statutory restrictions imposed on convicted sex offenders enacted after
Malchow created a license to ignore that longstanding precedent. Yet, the majority in Tetter
failed to identify any specific legislative changes, enacted after Malchow, that converted the
statutory provisions designed to protect the public into unfairly burdensome consequences that
punitively restrict the lifestyles of convicted sex offenders.
¶ 79 I presume the legislative changes vaguely referenced by the majority in Tetter became
effective after our supreme court’s 2013 decision in Cardona. In Cardona, the court restated,
explicitly, that sex offender registration “is a regulatory scheme designed to foster public safety.”
People v. Cardona, 2013 IL 114076, ¶ 24; see also People v. Pepitone, 2018 IL 122034.
¶ 80 In spite of my own research efforts, I have yet to discover these legislative provisions,
effective after the March 21, 2013, holding in Cardona, that justify the holding in Tetter. In
Tetter, I disagreed with the majority’s rush to become the first reviewing court in Illinois to find
the registration requirements and other statutory restrictions for convicted sex offenders have
become punitive. After Tetter, our court has praised the rationale of Tetter in Kochevar and now
in this decision. Respectfully, I do not share these views of the holding in Tetter.
¶ 81 For purposes of this appeal, I fully adhere to the position set forth in my dissent in Tetter.
I maintain that the legislative provisions vaguely referenced in Tetter are regulatory measures
designed for public safety. These regulations create informational tools and protective safe zones
27
that allow parents, neighbors, and other members of the public to minimize the risk of becoming
the next unsuspecting target of a recidivist sex offender.
¶ 82 In conclusion, I agree with the result in this appeal on all issues. However, I conclude
defendant’s subjugation to the statutory scheme of lifetime consequences as a convicted sex
offender is not unconstitutional because those consequences are regulatory, protective, and
nonpunitive.
28