No. 2-14-1241 Opinion filed June 23, 2017 ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Du Page County. ) Plaintiff-Appellee, ) ) v. ) No. 13-CF-1600 ) CALVIN JOHNSON, ) Honorable ) Kathryn E. Creswell, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE BURKE delivered the judgment of the court, with opinion. Justice Spence concurred in the judgment and opinion. Justice Hutchinson concurred in part and dissented in part, with opinion.

OPINION

¶1 Following a bench trial in the Du Page County circuit court, defendant, Calvin Johnson,

was convicted of criminal sexual assault (720 ILCS 5/11-1.20(a)(1) (West 2012)), aggravated

domestic battery (720 ILCS 5/12-3.3(a-5) (West 2012)), aggravated battery (720 ILCS

5/12-3.05(c) (West 2012)), and two counts of unlawful restraint (720 ILCS 5/10-3(a) (West

2012)). He was sentenced to six years’ imprisonment for criminal sexual assault and four

concurrent terms of 30 months’ probation, including 160 days in jail, for the other offenses. He

appeals, contending that (1) he was not proved guilty beyond a reasonable doubt; and (2) the trial

court committed plain error by requiring him to submit to a sex-offender evaluation when he was

subject to a mandatory prison sentence. We affirm.

¶2 Defendant had been married to C.J. for 19 years and they had three children together.

However, the couple had experienced “rough patches” and had separated twice. In late February

2013, C.J. moved out of the family’s apartment.

¶3 Defendant and C.J. communicated periodically throughout February and March 2013.

They spoke over the phone and in person. Defendant wanted to reconcile, but C.J. did not. They

often engaged in heated arguments. Defendant left angry and threatening messages on C.J.’s

voicemail. By the end of March, both parties had changed their phone numbers.

¶4 However, defendant also sent roses to C.J. at her workplace and wrote her letters.

Defendant sometimes met C.J. in the parking lot after she finished work. C.J. testified that

encountering defendant at her workplace made her nervous, to the point that she began walking out

of the building with a coworker, Latrina Martin. Martin would wait to see if defendant’s car was

in the parking lot before going home.

¶5 Sometime in late March, defendant went to C.J.’s workplace on a night when she was

working the late shift. He approached her in the parking lot and asked to talk in the car. She

initially refused, but changed her mind because she was nervous and did not want to be

embarrassed. Martin assured C.J. that she would not leave until she was sure that C.J. was okay.

¶6 C.J. testified that defendant told her that she would be served with child-support papers.

She said that she did not care and was filing for divorce, which made him mad. When defendant

saw C.J.’s coworkers, he said, “You got your fucking cheerleaders with you. *** [W]hat the

fuck are they looking at, *** you my wife. *** I’ll take you out and make a scene.”

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¶7 Defendant stepped out of the car and told Martin, “[T]his is my fucking wife. *** I

never hit my wife.” Martin testified that he said that he could do what he wanted. When C.J. got

back in the car, she was crying because she was so embarrassed. Defendant said, “[C]an nobody

[sic] stop me from getting to you. [Y]ou are my wife. No police, no coworkers.” He got out of

the car and said that he would never go to her workplace again.

¶8 C.J. filed reports with the Hillside and Oak Brook police departments. She sought an

order of protection the following Monday, but her request was denied.

¶9 On April 11, 2013, C.J. was getting into her car to drive home from work. Martin was not

working that night. C.J. heard a knock on the passenger-side window. It was defendant.

According to C.J., defendant got into the car and said, “[B]itch, I’m trying to talk to your ass for

four months.” He held a black bag and pulled from it a white sock with a knife inside.

Defendant said, “[S]hut the fuck up, bitch. I will kill your ass right now.” Defendant then pulled

from the bag a white bag with a gun in it. He did not pull the gun all the way out of the bag, but

C.J. could see the silver handle.

¶ 10 Defendant returned the gun to the bag and held the knife, which he had pulled out of the

sock. He told C.J. that he would kill her if she made a scene. He directed C.J. to drive to a motel.

She did not want to go, and initially drove past it, but defendant forced her to turn around, saying

that he would stab her if she made a scene. She turned around and pulled into the entrance of a

Motel 6.

¶ 11 C.J. resisted going into the motel. As a black truck pulled up, she raised her voice, hoping

to attract attention. Defendant said that she was making a scene and that he was going to stab her.

He said that he had another gun in his pants and would kill her if she tried to run. They “tussled”

over her purse.

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¶ 12 They eventually entered the motel. C.J. waited in the lobby while defendant talked to the

desk clerk. At one point, C.J. tried to walk out. Defendant grabbed her arm and told her to get

back inside or he would kill her.

¶ 13 Earnest King, the desk clerk, testified that as defendant checked in King heard someone

crying from the east side of the building. He saw a woman enter from that side, but he did not

hear her crying anymore. During the transaction, defendant stepped away and walked to where

the woman was going back outside. King did not know what was said. When defendant

returned to the desk, King asked if everything was alright and defendant said that everything was

fine.

¶ 14 Defendant and C.J. drove to the west side of the building and went into a room. C.J.

initially sat on the bed with her coat on while defendant paced around the room. Defendant said

that he just wanted to talk to her. He seemed less angry than before. He asked her why she

would not come home. When she said that she was not going home, his mood changed. He

called her a bitch.

¶ 15 Defendant said that he wanted “closure.” He pulled her up off the bed and took off her

coat. He grabbed her arms and took off her shirt, while she kept saying “no.” Defendant took off

his pants and removed C.J.’s clothes except for her underwear. He laid her down on the bed,

saying that he missed his wife. He began kissing her. She kept saying “no” and crying. She

tried to push him off her but he was too strong.

¶ 16 Defendant put her arms toward the top of the bed and had intercourse with her. C.J. “just

laid there” and could not push him away. She was limp, just wanting it to stop. Afterward,

defendant got dressed and told C.J. to wash up in the bathroom.

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¶ 17 Defendant’s demeanor changed again. He told her that if she ever needed anything she

should call him. They left the motel and drove back to the parking lot of C.J.’s workplace.

When they arrived, C.J. retrieved her purse from the trunk. Defendant returned to his car and they

drove away in opposite directions.

¶ 18 C.J. noticed that she had missed several calls from her sister, Monique, and C.J.’s daughter

Sierra. C.J. would typically call Monique when she finished her late shift. Monique testified

that she became worried when she did not hear from C.J. after her shift on April 11.

¶ 19 When C.J. arrived at Monique’s home, Monique could tell that she was upset and had been

crying. C.J.’s hair was messed up. C.J. did not tell Monique what happened. According to

Monique, C.J. still looked upset the following morning, but she did not tell Monique anything

before she left for work. On her way, C.J. started crying and pulled over. She called Monique

and told her what happened.

¶ 20 C.J. then drove to Sierra’s house. Sierra testified that C.J. was crying and was “kind of

stiff.” C.J. then told Sierra and her husband what had happened. Sierra’s husband went outside

and flagged down a police officer. C.J. was taken by ambulance to Elmhurst Hospital.

¶ 21 Oak Brook police detective Jason Wood met C.J. at the hospital. He testified that she was

in a “very emotional state,” crying, shaking, and “extremely upset.” C.J.’s daughter Quinterra’-+

also saw her at the hospital. She said that her mother’s eyes looked glassy and that she was

shaking.

¶ 22 Nurse Denise Trimble conducted a sexual-assault exam. The exam showed a right

shoulder injury, a bruise on her right hand, and a slight tear in the perineum area of her vagina.

Trimble opined that the injuries were consistent with C.J.’s story and with sexual trauma.

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¶ 23 On April 13, police executing a search warrant at defendant’s home found a clean butcher

knife matching C.J.’s description of the knife defendant used during the incident.

¶ 24 Defendant testified that in late March he spoke with C.J. at her workplace. They

discussed her paying him child support, but he did not serve her with child-support papers. C.J.

became irate because she did not want child support deducted from her paycheck. At one point,

someone walked past the car and looked at defendant. Believing that this was rude, he asked C.J.

who it was. She said, “[O]h, my God, you’re going to embarrass me.” Defendant responded,

“[N]o, they’re your friends. Please ask them to walk away. This is embarrassing to both of us.”

¶ 25 Defendant got out of the car and said, “[t]here’s nothing going on here. I’m not going to

hurt this woman. I never laid a hand on a woman never in my life.”

¶ 26 Defendant testified that on April 11, 2013, he again met C.J. at her workplace. Defendant

got into her car. He suggested that they go somewhere and talk. He did not tell her where to

drive. They ended up at a Motel 6 that they had visited in the past. They sat in the car for about

20 minutes, reminiscing. The mood was somber. Defendant went in to request a room while

C.J. stayed outside. Defendant thought that he heard her come in, so he yelled at her to get the

license plate number of her car, but she did not hear him. Defendant went out and wrote the

number on his hand. They entered the room and had consensual sex. Defendant never displayed

a weapon or threatened her.

¶ 27 The trial court found defendant not guilty of four counts alleging stalking and aggravated

stalking. However, the court found defendant guilty of criminal sexual assault, aggravated

domestic battery, aggravated battery, and two counts of unlawful restraint. The court specifically

found C.J.’s testimony credible and defendant’s testimony not credible. The court noted evidence

of the parties’ contentious relationship in the months before this incident, and the testimony of

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several witnesses that C.J. was crying and upset the day after. In light of this evidence, the court

did not find credible defendant’s testimony that she voluntarily accompanied him to a motel and

had consensual sex.

¶ 28 The court noted that both defendant and C.J. were impeached to some degree with

inconsistent testimony at a May 2013 order-of-protection hearing. The court found this

unsurprising, given that such hearings are often emotionally charged and that “testimony in those

types of proceedings is often exaggerated.” The court also observed that, when parties represent

themselves, pertinent details are often omitted.

¶ 29 The court also observed that defendant’s demeanor during cross-examination changed

quickly, as C.J. had described. The court observed that defendant’s tone and intensity changed

instantly. He was “angry, aggressive, defiant and combative” with the prosecutor and tried to

control the cross-examination.

¶ 30 The court ordered a presentence report, which was to include a sex-offender evaluation.

The court set the matter for sentencing.

¶ 31 At sentencing, the court stated that it had considered the presentence report, including the

sex-offender evaluation. The evaluation found that defendant was a pedophile. The evaluator

also reported that defendant was dishonest during the evaluation and that the best way to manage

the risk he posed was to place him in a secure setting. The court stated that it did not believe that

defendant was a pedophile, but it commented on his attempts to “deceive” and “outsmart” the

evaluator. After noting defendant’s steady work history and lack of criminal history, the court

stated that the “aggravation here is really just the facts of the case themselves, the nature and

circumstances of what occurred.” The court sentenced defendant to six years’ imprisonment for

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criminal sexual assault, to be followed by a term of 30 months’ probation and 160 days in jail for

the less serious offenses. Defendant timely appeals.

¶ 32 Defendant first contends that he was not proved guilty beyond a reasonable doubt. He

contends that C.J.’s testimony was not credible, that she was impeached by inconsistent statements

she made to the police and at the May 2013 order-of-protection hearing, and that his own

testimony was more credible.

¶ 33 Where a defendant challenges on appeal the sufficiency of the evidence, the relevant

question is whether, after viewing all the evidence in the light most favorable to the prosecution, a

rational trier of fact could have found all the elements of the offense beyond a reasonable doubt.

People v. Collins,

(2005). A reviewing court may not substitute its judgment

for that of the trier of fact on questions involving the weight of the evidence, the credibility of the

witnesses, or the resolution of conflicting testimony. People v. Campbell,

(1992).

¶ 34 Here, C.J. testified clearly and consistently that defendant got into her car, threatened her,

displayed a knife and a gun, and forced her to drive to a motel, where he forcibly had sex with her.

The testimony of a single witness, if positive and credible, is sufficient for a conviction. People v.

Mister,

.

¶ 35 Moreover, C.J.’s testimony was corroborated by other evidence. There was substantial

evidence that defendant and C.J. had had a contentious relationship for several weeks prior to April

11, 2013. C.J. moved out and they were in the process of getting a divorce. They had arguments

and defendant left angry messages on her voicemail. C.J. had consistently resisted defendant’s

attempts at reconciliation. Both parties had changed their phone numbers at least once.

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¶ 36 C.J. testified about an argument that occurred in the parking lot of her workplace a few

days before the incident in question. Martin witnessed this altercation. She testified that

defendant said that C.J. was his wife and that he could do what he wanted.

¶ 37 Several witnesses, including Monique, C.J.’s daughters, and Wood, testified that they saw

C.J. the day after the incident and that she was crying and extremely upset. Trimble testified that

the results of her examination of C.J. were consistent with “sexual trauma.”

¶ 38 The trial court noted that defendant’s demeanor while testifying corroborated C.J.’s

testimony about his volatile temper. The court described defendant’s demeanor during

cross-examination as “angry, aggressive, defiant and combative.”

¶ 39 In light of this corroborating evidence, the trial court could reasonably credit C.J.’s

testimony and reject defendant’s testimony that, in the midst of a contentious divorce, he and C.J.

calmly drove to a motel and had consensual sex.

¶ 40 Defendant identifies 10 points on which C.J.’s trial testimony was inconsistent with either

her statement to police or her testimony at the May 2013 order-of-protection hearing. The vast

majority of these points are collateral. The only one directly relevant to the offenses is the last: at

trial, C.J. testified that she tried to push defendant off of her, while at the order-of-protection

hearing she said that there was no struggle.

¶ 41 It is perhaps possible to harmonize the two statements, as one might not necessarily equate

a push with a struggle. Semantics aside, the trial court noted that both parties were impeached to

some extent with their inconsistent testimony at the earlier hearing. The court found the relatively

minor inconsistencies unsurprising given the “emotionally charged” nature of order-of-protection

proceedings and the fact that the parties appeared pro se. In any event, minor inconsistencies in a

party’s testimony do not, of themselves, create a reasonable doubt of a defendant’s guilt. People

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v. Adams,

(1985). Given the relative overall strength of C.J.’s testimony and

the substantial corroborating evidence, the relatively minor inconsistencies defendant raises did

not require the trial court to reject her testimony.

¶ 42 Defendant next contends that the trial court erred by ordering him to submit to a

sex-offender evaluation when he was to be sentenced to prison. Defendant concedes that he did

not raise this issue in the trial court, but he asks us to consider it as plain error. To obtain relief

under the plain-error rule, a defendant must first show “a clear or obvious error.” People v.

Hillier,

(2010). “In the sentencing context, a defendant must then 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.”

Under either prong, the

defendant has the burden of persuasion.

¶ 43 We hold first that defendant has shown a clear or obvious error. Section 5-3-2(b-5) of the

Unified Code of Corrections provides as follows:

“In cases involving felony sex offenses in which the offender is being considered for

probation only *** the [presentence] investigation shall include a sex offender evaluation

***. In cases in which the offender is being considered for any mandatory prison

sentence, the investigation shall not include a sex offender evaluation.” 730 ILCS

5/5-3-2(b-5) (West 2014).

¶ 44 “The fundamental rule of statutory construction is to ascertain and give effect to the

legislature’s intent.” People v. Davison,

(2009). The best indication of that

intent is the statutory language itself, which we give its plain and ordinary meaning.

Where

the language is clear and unambiguous, we apply the statute as written without resort to aids of

statutory construction. People v. McChriston,

. The construction of a

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statute is a question of law, which we review de novo. DeLuna v. Burciaga,

(2006).

¶ 45 Here, defendant was convicted of criminal sexual assault, a nonprobationable Class 1

felony. 720 ILCS 5/11-1.20(a)(1) (West 2014); 730 ILCS 5/5-5-3(c)(2)(H) (West 2014). Thus,

defendant was not being considered for “probation only,” but instead was to receive a mandatory

prison sentence. Thus, the statute’s plain language provides that he should not have been required

to submit to a sex-offender evaluation.

¶ 46 The State cites People v. Hillier,

(2009), aff’d,

, for the

proposition that ordering the evaluation was within the trial court’s discretion. There, the court

found that section 5-3-2(b-5) did not prohibit the trial court from ordering a sex-offender

evaluation for a defendant who was not eligible for probation, and it saw “no reason to disallow a

sex offender evaluation in nonprobationary cases if the trial court deems it helpful.” Id. at 70.

¶ 47 Hillier, however, was decided prior to the most recent amendment to section 5-3-2(b-5).

When Hillier was decided, that section read, “In cases involving felony sex offenses in which the

offender is being considered for probation *** the investigation shall include a sex offender

evaluation ***.” 730 ILCS 5/5-3-2(b-5) (West 2008). In 2009, the statute was amended. The

amendment added “only” after “probation” and added the last sentence providing that, where a

defendant is eligible for any mandatory prison sentence, “the investigation shall not include a sex

offender evaluation.” Pub. Act 96-322, § 5 (eff. Jan. 1, 2010) (amending 730 ILCS 5/5-3-2(b));

see People v. Guerrero,

, ¶ 69 n.5. Thus, when Hillier was decided, the

statute did not specifically prohibit a trial court from ordering a sex-offender evaluation in a case

where a defendant was subject to a mandatory prison sentence. Accordingly, Hillier did not

authorize the trial court to order an evaluation here.

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¶ 48 The State, in what defendant aptly describes as a “circuitous” argument, appears to contend

that, because defendant received sentences of probation for the less serious convictions, a sex-

offender evaluation was authorized. This contradicts the statute’s explicit language. The statute

provides for an evaluation where a defendant is being considered for “probation only” and

prohibits one where a defendant is subject to “any” mandatory prison sentence. 730 ILCS

5/5-3-2(b-5) (West 2014). Defendant here was subject to a mandatory prison sentence for the

criminal sexual assault, and thus an evaluation was not permitted even though he was being

considered for, and in fact received, probation for the less serious offenses.

¶ 49 We recognize the potential for confusion in cases such as this one, where defendant was

sentenced to probation terms to be served consecutively to his prison sentence. However, this

does not permit us to depart from the statute’s plain language.

¶ 50 Having found a clear or obvious error, we turn to whether defendant has met his burden of

persuasion on either prong of the plain-error rule. To some extent, defendant conflates the two

prongs. He explicitly invokes the second prong, asserting that the error denied him a fair

sentencing hearing. However, he also argues that, in light of the strength of the mitigating

evidence, the sex-offender evaluation “prejudiced” him, i.e., it might have affected his sentence.

This is an argument under the first prong. See People v. Jackson,

(under first prong, defendant must show prejudice). In fairness to defendant, we will address both

prongs.

¶ 51 We begin with the second prong. Although that prong applies where an error denied a

defendant “a fair sentencing hearing” (Hillier,

), it is crucial to recognize that, for

these purposes, only an extraordinarily serious error will render a proceeding “unfair.” Indeed,

the supreme court has “equated second-prong plain error with structural error.” (Emphasis

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added.) People v. Clark,

, ¶ 46. This does not mean that second-prong plain

error is restricted to “the [six] types of structural error that have been recognized by the [United

States] Supreme Court” (id.), but it does mean that the error nevertheless must be of a similar kind:

an error “ ‘affecting the framework within which the trial proceeds, rather than simply an error in

the trial process itself’ ” (Neder v. United States,

(1999) (quoting Arizona v.

Fulminante,

(1991))). Defendant does not show how the error here—a

violation of a “purely statutory requirement,” which resulted merely in the introduction of

improper evidence—rises to that level. See People v. Williams,

, ¶ 11

n.2. Thus, defendant has not met his burden of persuasion on the second prong.

¶ 52 We turn to the first prong. As noted, defendant argues that the evidence as a whole was

such that the sex-offender evaluation might have affected his sentence. The State responds that

the trial court did not rely on the evaluation in any substantive way.

¶ 53 We have found no case involving a trial court’s consideration at sentencing of an

unauthorized sex-offender evaluation. However, in People v. Abdelhadi,

, we faced the analogous issue of whether to find plain error in a trial court’s consideration

of an improper factor in aggravation. We noted that, “[w]hen a trial court considers an improper

factor in aggravation, the case must be remanded unless it appears from the record that the weight

placed upon the improper factor was so insignificant that it did not lead to a greater sentence.” Id.

¶ 18. Of relevance to that inquiry were “(1) whether the trial court made any dismissive or

emphatic comments in reciting its consideration of the improper factor; and (2) whether the

sentence received was substantially less than the maximum sentence permissible by statute.” Id.

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Because, in that case, we could not “determine how much weight was placed on that factor,” we

found plain error and remanded the cause for a new sentencing hearing. Id. ¶ 20. 1

¶ 54 Here, by contrast, the record shows that the sex-offender evaluation did not influence the

sentence. In light of the substantial mitigating factors, including defendant’s complete lack of

criminal history, the trial court imposed a sentence only two years above the statutory minimum.

In explaining that slight increase above the minimum, the court stated that the “aggravation here is

really just the facts of the case themselves, the nature and circumstances of what occurred.”

Indeed, defendant’s conduct during the criminal sexual assault, threatening the victim repeatedly

with a knife and a gun, was more than sufficient to justify a six-year sentence.

¶ 55 The court did reference the evaluation, but its comments were largely dismissive. The

most damaging aspect of the evaluation was the conclusion that defendant was a pedophile. The

court specifically rejected that conclusion. The court then discussed defendant’s lack of

cooperation during the evaluation, but only in the context of explaining that the evaluator’s finding

was “kind of what happens when the defendant attempts to deceive the evaluator.” The court

1 Like defendant’s argument here, our decision in Abdelhadi was somewhat confused as to

which prong of the plain-error rule we invoked. We stated that the issue implicated the second

prong “because when a trial court considers erroneous aggravating factors in determining the

appropriate sentence of imprisonment, the defendant’s ‘fundamental right to liberty’ is unjustly

affected, which is seen as a serious error.” Id. ¶ 7 (quoting People v. James,

(1993)). (Notably, in equating second-prong plain error with a merely “serious” error, we

arguably did not abide the supreme court’s equation with structural error.) However, in assessing

whether the trial court’s consideration of the improper factor might have led to a greater sentence,

we seemed to be assessing whether the error was prejudicial under the first prong.

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never indicated that it was increasing defendant’s sentence because of his lack of cooperation with

the evaluation. To the contrary, as noted, the court stated that the “aggravation here is really just

the facts of the case themselves.”

¶ 56 Although the trial court erred by ordering a sex-offender evaluation when defendant was

subject to a mandatory prison sentence, it is clear that the evaluation did not affect defendant’s

sentence. Thus, defendant has not met his burden of showing first-prong plain error.

¶ 57 The judgment of the circuit court of Du Page County is affirmed. As part of our

judgment, we grant the State’s request that defendant be assessed $50 as costs for this appeal.

55 ILCS 5/4-2002(a) (West 2014); see also People v. Nicholls,

(1978).

¶ 58 Affirmed.

¶ 59 JUSTICE HUTCHINSON, concurring in part and dissenting in part.

¶ 60 Although I agree with the majority that the evidence was sufficient to sustain defendant’s

convictions, I believe that a new sentencing hearing is necessary due to the erroneously ordered

sex-offender evaluation. The majority concludes that “it is clear that the evaluation did not affect

defendant’s sentence.” Supra ¶ 56. It is not so clear to me.

¶ 61 I understand that the judge did not specifically mention the evaluation when she discussed

the aggravating factors, and I am mindful that the facts adduced at trial would have justified a

sentence two years above the statutory minimum. However, I cannot overlook the degree to

which the evaluation tainted these proceedings. Simply put, defendant’s sentencing hearing was

not fair.

¶ 62 In contravention of the relevant statute, defendant was forced to view 180 slides depicting

children, teens, and adults, plus depictions of various deviant sexual behaviors. His responses to

these images could serve no purpose other than to damage his prospects at sentencing. With that

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in mind, he provided the same response to every slide. The evaluator noted that defendant “did

not refuse to answer any questions but did not add much additional information.” This led to

findings that he was a pedophile and, for lack of a better term, a liar. Had the statute in question

been followed, none of this would have taken place. But the statute was not followed, and the

adverse findings from the evaluation were incorporated into the presentence report. The error

was then compounded when the prosecutor made the evaluation a focal point of her argument

during the sentencing hearing.

¶ 63 For instance, the prosecutor argued that defendant would say whatever he needed to say to

get out of trouble. She asserted that defendant had presented himself as blameless and that he was

instead blaming the victim. She pointed to the evaluation and argued that this was “textbook

behavior for a sex offender like [defendant].” She then stated:

“The evaluation classifies [defendant] as having obsessive compulsive personality

disorder with histrionic and schizoid personality features. Now, reading the presentence

report and the sex offender evaluation, it is evident that this defendant *** is manipulative,

deceitful, and he is a vile individual whose dark side has, up until now, managed to escape

detection for the most part.

His presentence report and evaluation are riddled with inconsistencies because he

can’t keep his lies and rationalizations straight. So, he just defaults and says that everyone

else is lying, except for him.”

¶ 64 The evaluation continued to overshadow the sentencing hearing when, in an attempt to

neutralize the damage from the prosecutor’s scathing comments, defense counsel debated the

import of the adverse findings. He argued that, beyond defendant’s denial of the offense, nothing

in the evaluation indicated dishonesty except for his responses to the slides.

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¶ 65 Finally, when given an opportunity to address the court, defendant commented:

“I am not a pedophile. You can’t put pictures in front of me and ask me to rate

them on one level to ten. I said it was disgusting, and I meant that. I am not a pedophile.

I am not going to answer a picture that shows a little girl in a bathing suit. That’s sick to

me. And if that’s making me a guilty man because I refuse to answer it, then what’s the

test for? Because I failed that test.”

¶ 66 Before announcing defendant’s sentence, the judge discussed the mitigating factors.

Defendant had a full-time job and a long work history. The judge observed that defendant’s lack

of criminal history was “remarkable,” adding, “[i]t’s not something the Court sees very often.”

The judge also recognized that defendant had performed charitable work through his memberships

with the Shriners and the Masons. She then discussed the adverse findings from the evaluation,

specifically stating:

“[Defense counsel] points out that the defendant is in a trick bag regarding the

evaluation. And I agree with that. He basically put himself there. No, I don’t believe

that [defendant] is a pedophile. Okay?

I think the history here, getting the big picture, there is certainly nothing to support

that. But that’s kind of what happens when the defendant attempts to deceive the

evaluator. As indicated, his self-reporting ranking of sexual arousal to each of 180 slides

indicates that he reports no sexual interest.

It should be noted that [defendant] entered the same response for every slide. That

pattern of responding usually is an attempt by the client not to reveal his sexual interests.

So, it’s like he outsmarted himself and he is going to outsmart the evaluator, and the result

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is something really awful. Looking at the big picture here, I mean, that’s what I find. I

find he was trying to outsmart the evaluator here.”

¶ 67 The majority characterizes these comments as “largely dismissive,” and notes that the

judge “never indicated that [she] was increasing defendant’s sentence because of his lack of

cooperation with the evaluation.” Supra ¶ 55. This reasoning seems flawed to me. The judge

disregarded the statute and ordered the evaluation. The evaluation then loomed over the

sentencing hearing like a dark cloud. That the judge did not discuss the evaluation’s adverse

findings as a reason for increasing defendant’s sentence does not foreclose the possibility that it

happened. I cannot join the majority in assuming that it did not.

¶ 68 Setting aside any further speculation as to the judge’s thought process, I believe that the

case should be remanded for a new sentencing hearing under both prongs of the plain-error rule.

To obtain relief under the plain-error rule in the sentencing context, a defendant must show that

either: “(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.” People v. Hillier,

(2010).

¶ 69 Regarding the first prong, the evidence at the sentencing hearing was closely balanced.

The mitigating factors were significant. Defendant was facing a statutory four-year minimum

term of imprisonment. The prosecutor requested a seven-year term. The judge imposed a

six-year term. I believe that there is a reasonable chance that defendant would have received a

lesser sentence if the statute had been followed and the evaluation had never taken place.

¶ 70 Turning to the second prong, which is the focus of defendant’s argument, I have already

made it clear that I believe that defendant was denied a fair sentencing hearing. The majority

notes that second-prong plain error has been “equated” with structural error, and it dismisses

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defendant’s argument for failure to show how the violation of a “purely statutory requirement”

rises to that level. (Internal quotation marks omitted.) Supra ¶ 51. What does that mean?

That second-prong plain error can derive only from a constitutional violation? Our supreme court

may endeavor to establish such a standard in the future, but, for now, there is no proscription

against second-prong plain error arising out of a statutory violation.

¶ 71 To be clear, in People v. Clark,

, ¶ 46, our supreme court expressly rejected

the notion that second-prong plain errors are restricted to the limited class of errors that have been

deemed “structural.” The emphasis must remain on fundamental fairness and the integrity of the

judicial process. Id. ¶ 44 (“The next question is whether that error is so serious that it affected

the fairness of the defendant’s trial and challenged the integrity of the judicial process.”). The

majority steers around the holding in Clark (supra ¶ 51), maintaining that a second-prong plain

error must still be “of a similar kind” as a structural error, meaning that it must be an error

“ ‘affecting the framework within which the trial proceeds, rather than simply an error in the trial

process itself’ ” (Neder v. United States,

(1999) (quoting Arizona v. Fulminante,

(1991))). This might be accurate, but, even so, I fail to see how the statutory

violation in this case did not affect “the framework within which the trial proceeds.” Although I

cannot say for certain that the sex-offender evaluation affected defendant’s sentence, I believe that

the error fundamentally altered the framework of the sentencing hearing. This was not “simply an

error in the trial process itself.”

¶ 72 Regardless of whether an improper consideration at sentencing is categorized as plain error

under the first or second prong, it remains that “[s]entencing issues are regarded as matters

affecting a defendant’s substantial rights and are thus excepted from the doctrine of waiver.”

(Internal quotation marks omitted.) People v. Wilbourn,

. Here,

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the judge acknowledged that she had “considered” the erroneously ordered sex-offender

evaluation. I believe that this consideration violated defendant’s substantial right to a fair

sentencing hearing. 2

¶ 73 At least two cases support the notion that the mere consideration of an improper factor at

sentencing amounts to plain error, thus requiring a new sentencing hearing. In People v.

Abdelhadi,

, ¶ 3, the defendant was facing a prison term between 6 and

60 years for the offense of aggravated arson. Before imposing a 10-year term, the trial court

stated: “ “[s]pecifically in aggravation the Court has considered that the conduct caused by the

defendant did, in fact, endanger the lives of individuals.’ ” Id. ¶ 4. On appeal, this court held

that the trial court had improperly considered the threat of harm to others as an aggravating factor,

as that factor was inherent in the defendant’s offense. Id. ¶ 18. We noted that, although the

10-year sentence was substantially below the maximum sentence, it was also 4 years above the

minimum sentence. Because the trial court’s comments did not demonstrate how much weight

was placed on the improper factor, we held that a new sentencing hearing was required. Id. ¶ 19.

¶ 74 A similar conclusion was reached in People v. Sanders,

, appeal

denied, No. 121247 (Ill. Nov. 23, 2016). The trial court in that case made the following

comments during the sentencing hearing: “[A]mong other things, the defendant’s conduct did

cause or threaten serious harm. It may be inherent in the actual fact that he committed a murder,

but it did occur, and that the defendant has a history of prior delinquency of criminal activity.”

(Internal quotation marks omitted.) Id. ¶ 6. The appellate court held that the trial court’s

2 In that sense, it could be said that there were actually two errors in this case: the first

occurring when the evaluation was ordered, and the second occurring when the evaluation was

considered at sentencing.

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improper consideration of a factor inherent in the underlying offense warranted a new sentencing

hearing under the second prong of the plain-error rule, specifically finding that the trial court had

“impinged on the defendant’s right not to be sentenced based on an improper factor and affected

his fundamental right to liberty.” Id. ¶ 17.

¶ 75 Here, the adverse findings from the erroneously ordered sex-offender evaluation were

considered to at least the same extent that the improper factors were considered in Abdelhadi and

Sanders. The majority surmises that Abdelhadi is distinguishable from this case because the

erroneously ordered sex-offender evaluation “did not influence the sentence.” Supra ¶ 54. But

the majority misses the point. Neither Abdelhadi nor Sanders turned on any determination as to

whether the trial court’s improper consideration influenced its determination of the sentence. In

both instances, it was the improper consideration itself that required a new sentencing hearing. I

believe that the same holds true here.

¶ 76 Before I conclude, I ask my colleagues to remember that “[t]he foundation of plain-error

review is fundamental fairness.” People v. Lewis,

(2009). We can twist and

turn and strain to confine plain errors in a pair of tidy formulaic boxes, but, in the end, we must

always remain mindful of our duties to ensure fundamental fairness and safeguard the integrity of

the judicial process. Accordingly, I dissent to draw attention to these duties.

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