No. 2-22-0267 Order filed May 24, 2023

NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Kane County. ) Plaintiff-Appellee, ) ) v. ) No. 20-CF-1189 ) D.K., ) Honorable ) David Paul Kliment, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE JORGENSEN delivered the judgment of the court. Justices Hutchinson and Schostok concurred in the judgment.

ORDER

¶1 Held: The trial court did not err in rejecting defendant’s posttrial proportionate penalties challenge. Affirmed.

¶2 I. BACKGROUND

¶3 In August 2020, defendant was charged with 18 identical counts of predatory criminal

sexual assault of a child. The State alleged that, on or about January 1, 2016, through June 30,

2017, defendant’s hand made contact with the sex organ of A.K., his daughter (a minor under 13

years old), for the purpose of sexual gratification or arousal of A.K. or defendant (a person 17

years of age or over). After a jury trial, defendant, D.K., was found guilty of eight counts of

predatory criminal sexual assault of a child, a Class X felony (720 ILCS 5/11-1.40(a)(1), (b)(1)

(West 2020)).

¶4 In a posttrial motion, defendant raised a proportionate penalties challenge (Ill. Const. 1970,

art. I, § 11), asserting that the conduct alleged in the indictment amounted to both Class X felony

predatory criminal sexual assault of a child and Class 2 felony aggravated criminal sexual abuse

(720 ILCS 5/11-1.60(c)(1), (g) (West 2020)) and that the crimes have identical elements but that

the punishment for the former crime is more severe than the punishment for the latter one. The

trial court denied defendant’s motion, finding that the constitutionality of the statute had been

litigated elsewhere and it was upheld.

¶5 The court sentenced defendant to eight consecutive terms of seven years’ imprisonment, to

be served at 85%. Subsequently, the court denied defendant’s postsentencing motion. Defendant

appeals.

¶6 II. ANALYSIS

¶7 Defendant argues that his sentences violated the Illinois Constitution’s proportionate

penalties clause and, as a result, this court must reduce his convictions to aggravated criminal

sexual abuse and remand for resentencing within the applicable statutory range. He notes that the

sentencing range for the relevant predatory-criminal-sexual-assault statute is 6 to 60 years’

imprisonment (720 ILCS 5/11-1.40(b)(1) (West 2020)), whereas the sentence for aggravated

criminal sexual abuse is 3 to 7 years’ imprisonment (720 ILCS 5/11-1.60(c)(1), (g) (West 2020);

730 ILCS 5/5-4.5-35(a) (West 2020)). Defendant asserts that, because the two offenses have

identical elements and disproportionate penalties, his convictions should be reduced to aggravated

criminal sexual abuse and the case be remanded for resentencing. For the following reasons, we

reject defendant’s argument.

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¶8 Statutes are presumed constitutional, and a party challenging a statute bears the burden of

demonstrating its invalidity. People v. Graves,

(2003). Whether a statute is

constitutional is a question of law we review de novo.

“A proportionality challenge derives from article I, section 11, of the Illinois

Constitution of 1970. Section 11, which is commonly referred to as the proportionate

penalties clause, provides 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. A defendant can raise a proportionate penalties

challenge on the basis that the penalty for a particular offense is too severe under the ‘cruel

or degrading’ standard or that the penalty is harsher than the penalty for a different offense

that contains identical elements. People v. Sharpe,

(2005). The latter

challenge, which is at issue here, is evaluated using the identical elements test. Graves,

. The identical elements test considers whether offenses with identical

elements are given different sentences. Id.” People v. Williams,

.

¶9 Under the identical elements test, if offenses have identical elements but different

sentences, the penalties are unconstitutionally disproportionate and the offense with the greater

penalty cannot stand.

(discussing People v. Christy,

(1990), and subsequent

case law reaffirming application of test). “[A] proportionate penalty analysis under the identical

elements test is not a subjective determination,” but is objective and “simply compares the

elements of the two offenses to determine if the offenses are the same. This objective test does

not consider the offenses as applied to an individual defendant.” Id. ¶ 19.

¶ 10 We begin by comparing the statutes. The predatory-criminal-sexual-assault-of-a-child

statute provides:

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“(a) A person commits predatory criminal sexual assault of a child if that person is 17 years

of age or older, and commits an act of contact, however slight, between the sex organ or

anus of one person and the part of the body of another for the purpose of sexual gratification

or arousal of the victim or the accused or an act of sexual penetration, and:

(1) the victim is under 13 years of age[.]” 720 ILCS 5/11-1.40(a)(1) (West 2020).

As used in the statute, courts have construct “contact” to mean any touching. People v. Johnson,

.

¶ 11 The aggravated-criminal-sexual-abuse statute provides:

“(c) A person commits aggravated criminal sexual abuse if:

(1) that person is

(2) 17 years of age or over and: (i) commits an act of sexual conduct with a victim

who is under 13 years of age[.]” 720 ILCS 5/11-1.60(c)(1) (West 2020).

¶ 12 “Sexual conduct” means:

“any knowing touching or fondling by the victim or the accused, either directly or through

clothing, of the sex organs, anus, or breast of the victim or the accused, or any part of the

body of a child under 13 years of age, or any transfer or transmission of semen by the

accused upon any part of the clothed or unclothed body of the victim, for the purpose of

sexual gratification or arousal of the victim or the accused.” 720 ILCS 5/11-0.1 (West

2020).

In People v. Johanson,

, this court analyzed the grammatical

structure of this definition and determined that sexual conduct occurs when, for purposes of sexual

gratification or arousal of the defendant or the victim, there is (1) knowing touching or fondling of

the victim’s or the defendant’s sex organs, anus, or breast, or (2) knowing touching or fondling of

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any part of the body of a child under age 13, or (3) any transfer or transmission of semen by the

accused upon any part of the clothed or unclothed body of the victim.

Thus, sexual conduct,

this court concluded, occurs in some cases without consideration of the age of the victim or the

defendant.

.

¶ 13 In contrast, predatory criminal sexual assault of a child involves only victims under 13

years of age. 720 ILCS 5/11-1.40(a) (West 2020). Further, the conduct proscribed is (1) an act of

contact between the sex organ or anus of one person and the part of the body of another for the

purpose of sexual gratification or arousal of the victim or the accused; or (2) an act of sexual

penetration. (Emphasis added.)

In contrast, “sexual conduct” in aggravated criminal sexual

abuse is defined more broadly when the victim is under age 13, specifically, it includes a knowing

touching or fondling of “any part of the body of a child under 13 years of age.” (Emphasis added.)

720 ILCS 5/11-0.1 (West 2020).

¶ 14 Here, defendant points to People v. Deckard,

,

wherein the Fourth District, in an unpublished decision, determined there was a proportionate

penalties violation when it compared predatory criminal sexual assault of a child to aggravated

criminal sexual abuse. In that case, the defendant had argued that his two convictions for predatory

criminal sexual assault of a child violated the proportionate penalties clause because those

offenses, as charged, had the same elements as criminal sexual abuse.

.

¶ 15 However, in addressing the same issue before us in this case, this court rejected Deckard

as being wrongly decided because it did not look at the elements of both statutes but looked at how

the defendant committed the crime. Johanson,

. We noted

that the supreme court has instructed that a proportionate penalties analysis under the identical

elements test was an objective test, not a subjective one, and that the objective test “ ‘does not

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consider the offenses as applied to an individual defendant.’ ”

¶ 26 (quoting Williams, 2015 IL

11740, ¶ 19). Thus, what was charged in the count of which the defendant was found guilty, even

if it satisfied the elements of both offenses, was irrelevant.

.

“Under the identical elements test, all that matters is whether, when comparing the

elements of the offenses as the legislature enacted them, the two statutes are revealed to

contain the same elements but provide for disparate sentences. The elements of predatory

criminal sexual assault of a child and aggravated criminal sexual abuse are not the same.

Thus, the disparate sentences for the two offenses are proper.”

¶ 16 This court rejected the defendant’s argument that there was a proportionate penalties

violation because the conduct at issue constituted both offenses.

. We noted that not all

conduct that constitutes aggravated criminal sexual abuse also constitutes predatory criminal

sexual assault of a child.

The latter offense requires proof of a knowing touching of a sex

organ or anus for sexual gratification or arousal when the victim is under age 13, whereas the

former offense does not require know touching of specific areas when the victim is under 13.

. “Rather, touching any part of the body of a victim under 13 for sexual gratification or arousal

constitutes aggravated criminal sexual abuse.”

¶ 17 Defendant asks us to reconsider Johansen, asserting first that the fact that sexual conduct

for aggravated criminal sexual abuse is more broadly defined compared to the more specific

contact required for predatory criminal sexual assault of a child does not automatically defeat a

proportionate penalties challenge under the identical elements test and that the proper focus is on

whether one offense is punished less severely than identical conduct when charged as another

offense. See People v. Clemons,

(“the identical elements test has never

required that the two offenses be equally specific”). We find this argument unavailing. In

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Williams, the court distinguished Clemons, noting that it involved statutes that used different words

that meant the same thing. Williams,

. Here, the terms “contact” and “sexual

conduct” do not mean the same thing.

¶ 18 Similarly, defendant further argues that, in Johansen, this court confused the methods of

committing the offenses with the elements of the offenses and failed to confine its test to the

elements pertinent to the Johansen defendant’s case. See People v. Graves,

, 484-

85 (2003) (“setting forth identical offenses is not synonymous with setting forth identical

elements[.] *** That a single offense of theft may be performed in an number of ways necessarily

requires that the single offense of theft be defined in a number of ways.”) (emphases in original).

He also argues that this court ignored that there are factual instances, as in this case, where both

offenses require a knowing touching of a specific area even when the victim is under age 13.

Defendant also contends that Williams’ instruction that the identical elements analysis be objective

does not apply because we need only compare the elements of the offenses “as alleged,” and, here,

and the inescapable conclusion is that they are identical (and noting that the State agreed that the

acts charged here meet the elements of both offenses).

¶ 19 We reject defendant’s arguments. In Williams, the supreme court noted that, although an

individual could simultaneously violate both statutes at issue, “this is not always true.” Williams

(rejecting the defendant’s argument that FOID card statute and aggravated

unlawful-use-of-a-weapon statute had identical elements because a person possessing a firearm

while not possessing a valid FOID card violated both statutes; further noting that a person can

violate the FOID card statute by possessing a firearm in his or her home without also having a

FOID card, but such conduct would not violate the aggravated unlawful use of a weapon statute,

which requires proof of the additional element that the person be outside of his or her home or on

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the public way); see also Johanson,

; People v. Parker,

(1996) (where permitting an unlawful use of a building applies to buildings used

for unlawful manufacturing or delivering of a controlled substance, the offense of maintaining a

public nuisance is broader and incorporates offenses beyond unlawful manufacturing or delivering,

such as possession of a controlled substance, prostitution, kidnapping and gambling; although an

individual charged with permitting unlawful use of a building could also be charged with

maintaining a public nuisance, “the opposite is not always true”; statutes are not identical and there

is no proportionate penalties violation). Also, to the extent that defendant essentially asks us to

compare the elements as “alleged” or “charged” against him, such a subjective analysis is incorrect

when assessing a proportionate penalties challenge under the identical elements test. Johanson,

.

¶ 20 Finally, we observe that the Fourth District has distinguished Deckard. Recently, in People

v. Melvin,

, the Fourth District, in a published opinion,

addressed Deckard and Johansen and held that the defendant could not bring an as-applied

constitutional challenge to a penalty under the identical elements test. In distinguishing Deckard,

the court noted that Deckard did not address Williams, was unpublished and not precedential, and

the defendant did not clearly identify what type of proportionate penalties challenge he was raising

(i.e., as-applied versus facial challenge). Id. ¶ 30. Notably, the court also stated that, to the extent

Deckard suggests that a defendant can raise an as-applied proportionate penalties challenge under

the identical elements test, Williams precludes it. Id.

¶ 21 In summary, the trial court did not err in rejecting defendant’s proportionate penalties

challenge.

¶ 22 III. CONCLUSION

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¶ 23 For the reasons stated, we affirm the judgment of the circuit court of Kane County.

¶ 24 Affirmed.

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