2022 IL App (2d) 200640 No. 2-20-0640 Opinion filed April 29, 2022 ______________________________________________________________________________
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. 18-CF-659 ) JAMES J. BOOTS, ) Honorable ) Donald M. Tegeler Jr., Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________
JUSTICE SCHOSTOK delivered the judgment of the court, with opinion. Presiding Justice Bridges and Justice Zenoff concurred in the judgment and opinion.
OPINION
¶1 Following a bench trial, the defendant, 1 James Boots, was convicted of predatory criminal
sexual assault of a child (720 ILCS 5/11-1.40(a)(1) (West 2016)) and sentenced to 11 years’
imprisonment. On appeal, the defendant argues that she received ineffective assistance of counsel,
her sentence was excessive, and the restitution order was erroneous. We affirm but remand for the
limited purpose of allowing the trial court to set the time limit and terms for the payment of
restitution.
1 The defendant is a transgender woman. As such, female pronouns will be used to refer to
the defendant in this opinion. 2022 IL App (2d) 200640
¶2 I. BACKGROUND
¶3 On May 23, 2018, the defendant was charged by indictment with one count of predatory
criminal sexual assault of a child (id.). The indictment alleged that, in 2010, the defendant, who
was 17 years of age or over, committed an act of sexual penetration with A.B., a minor child under
the age of 13 years, in that the defendant placed her mouth on the sex organ of A.B.
¶4 The defendant waived her right to a jury trial, and on January 27, 2020, the matter
proceeded to a bench trial. The defendant was represented by the public defender. In opening
statements, the State argued that the evidence would show that, in 2010, the defendant committed
an act of predatory criminal sexual assault against her stepdaughter, A.B. Specifically, one evening
when A.B. was about 10 years old, A.B. was left home alone with the defendant and one other
sibling, her sister H.B. After H.B. was put to bed, the defendant allowed A.B. to try her marijuana
pipe and take a sip of an alcoholic beverage. After this, the two went up to A.B.’s bedroom, as it
was A.B.’s bedtime. After A.B. crawled into bed, the defendant removed A.B.’s pajama pants and
pulled down her underwear. The defendant then placed her mouth on A.B.’s vagina.
¶5 Defense counsel’s opening statement began, “[t]he State’s Attorney is correct, this incident
happened in 2010.” Defense counsel further explained that the defendant herself actually brought
the case to the attention of medical staff, a social worker, and a detective in 2017. Defense counsel
stated that the trial court would hear why the defendant disclosed the information and what the
defendant wanted to do with the information. Defense counsel asserted that, after the trial court
heard what happened in 2010, the State would not be able to prove the defendant guilty of
predatory criminal sexual assault.
¶6 A.B. testified that she was born in the spring of 2001. She had two older siblings and four
younger siblings. A.B. testified that the defendant was her stepfather. They lived in various places
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but the incident at issue occurred when she lived in Elgin with her mother, M.B., the defendant,
and H.B. A.B. testified that she remembered an incident in 2010 when her mother had to go to the
hospital. It was during her mother’s pregnancy with a younger sibling, I.B., who was born in
October 2010. In the evening when her mother was at the hospital, the defendant put H.B. to bed.
After that, A.B. and the defendant went to the basement. The defendant was smoking marijuana
from a pipe. The defendant gave A.B. the pipe and she smoked from it too. The defendant also
gave A.B. her drink, which was a Jack and Coke, and A.B. had a couple sips. After that, they left
the basement and went up to A.B.’s bedroom. A.B. was wearing pajamas and underwear. After
A.B. crawled into bed, the defendant took A.B.’s pajama pants and underwear off and put her
mouth on A.B.’s vagina. The defendant’s mouth and tongue touched her vagina. She felt the
defendant’s mouth and tongue moving. It lasted about two or three minutes. She lay there because
she did not know what to do and felt uncomfortable and scared. When the defendant was done, the
defendant put her underwear and pants back on and they both went to the bathroom. A.B. urinated
and then went to bed. A.B.’s mom came home from the hospital the next day. A.B. was too scared
to tell her mother about the incident.
¶7 A.B. further testified that, sometime after the incident, when they still lived in Elgin, she
and the defendant talked about it. A.B. was home alone with the defendant. A.B. was crying
because her mother was not there and A.B. asked the defendant if she was going to put her mouth
on her again. The defendant looked upset, went into the hallway, crouched on the floor, put her
hands through her own hair, and asked A.B., “Did it feel weird?” A.B. did not respond and they
did not talk about it again.
¶8 On cross-examination, A.B. testified that, when she lived in Elgin with M.B. and the
defendant, the only other sibling who lived there was H.B. Her older siblings, D.B. and R.B., came
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over on weekends occasionally because her mother had split custody. A.B. called the defendant,
“Mommy Jamie.” The defendant helped take care of her by making her food and helping to put
her to bed. Her mother and the defendant regularly smoked marijuana and drank in the home. A.B.
knew there was marijuana in the pipe, and she was excited to try it. She had a couple sips of the
defendant’s drink, but the defendant was not forcing her. A.B. acknowledged that she could only
estimate that the defendant’s mouth was on her for two or three minutes, as she did not have a
clock in her bedroom. The defendant did not threaten her or force her down on the bed. A.B. never
told her mother or any teachers at school about the incident. A.B. ultimately told a social worker
after the defendant confessed at a hospital.
¶9 Detective Andrew Houghton testified that he worked for the major investigations division
of the Elgin Police Department. On January 10, 2018, he was given a referral from the Department
of Children and Family Services (DCFS) to investigate a crime that occurred in 2010. DCFS
became involved because the defendant had made statements to someone at a hospital regarding
the incident. Houghton testified that he and another detective interviewed the defendant on March
28, 2018. Before asking questions, he procured a Miranda waiver (see Miranda v. Arizona, 384
U.S. 436 (1966)) from the defendant. Houghton identified a copy of the Miranda waiver, which
was admitted into evidence. Houghton testified that the interview with the defendant was audio
and video recorded. He identified a DVD that contained the recording, and it was admitted into
evidence. The recording of the interview was played in court.
¶ 10 On cross-examination, Houghton testified that, prior to the interview of the defendant, he
obtained the defendant’s medical records from when she disclosed the incident. He also received
the DCFS report and a report from the child advocacy center (CAC) in Champaign County, which
was where A.B. was living in 2018. The report from the CAC included a forensic interview of
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A.B. as well as H.B. and M.B. Houghton acknowledged that, based on the records, he was aware
that the defendant disclosed the incident to various people, including a nurse, a social worker, and
other medical staff. Thereafter, someone made a report to DCFS. Houghton testified that, at the
time he interviewed the defendant, she was living in Freeport. She was cooperative and rode to the
police department with him. Houghton testified that the defendant was very emotional during the
interview. When the interview was done, they took her back to her apartment. Later, a warrant was
issued, and the defendant was arrested. Houghton acknowledged that the defendant was still living
in the same apartment and did not try to flee or resist arrest.
¶ 11 In the recorded interview, Houghton provided the defendant with Miranda warnings and
the defendant signed a waiver. The defendant stated that she understood her rights and that she
was willing to speak with the police. Houghton, the defendant, and another officer were present
for the interview. Houghton told the defendant that if she, at any time, wanted an attorney, she
should let them know. The detectives let the defendant refill her water bottle and use the restroom
during the interview.
¶ 12 The defendant acknowledged that her birthdate was August 24, 1969. She stated that she
knew that the police wanted to talk about a misunderstanding she had with one of her children,
A.B. The defendant stated that she “started to cross a boundary that [she] didn’t realize was
harmful” but that she “stopped [her]self.” This occurred when she, M.B., A.B., and H.B. lived
together in Elgin. A.B. was about 8 to 10 years old at the time of the incident.
¶ 13 The defendant stated that, one evening when M.B. was not at home, she put H.B. to bed.
After that, she and A.B. went into the basement. They spent most of the evening talking, laughing,
and having a good time. They talked about marijuana and cigarettes because A.B. was curious.
The defendant was smoking marijuana, and she let A.B. try it. The defendant stated that she was
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really high and that, at some point, her “brain got all jumbled up” and she thought that A.B. wanted
intimate contact. This occurred while she was putting A.B. to bed. The defendant stated that she
leaned over to kiss A.B.’s vagina but saw a look of horror on A.B.’s face and realized that she was
doing something wrong. She stopped, gave A.B. a kiss on the forehead, and left the room.
¶ 14 Houghton told the defendant that he talked to A.B. and that A.B. gave a similar version of
what happened but that there were additional details from A.B. that the defendant was not
providing. Houghton told the defendant that she and A.B. both deserved to have the truth come
out. Houghton then asked if A.B. was lying about the additional details she provided. The
defendant said that A.B. was not lying. The defendant then stated that she pulled down A.B.’s
pants a little and kissed her on the vagina. The defendant admitted that her lips touched A.B.’s
vaginal skin. The defendant stated that it lasted only a second because she saw the fear in A.B.’s
eyes. She stopped, kissed A.B. on the forehead, and left the room. Houghton asked if the defendant
went in the bathroom to wash out her mouth afterwards. The defendant stated that she might have.
When the interview was complete, the detectives drove the defendant back to her home.
¶ 15 The parties stipulated that, if called, M.B. would testify that she is married to the defendant.
In 2010, M.B. was living in a house in Elgin with the defendant, A.B., and H.B. She was also
pregnant with I.B. I.B. was born on October 16, 2010. One day in 2010, prior to I.B.’s birth, M.B.
was required to stay overnight in the hospital due to pregnancy related complications. The
defendant was left home along with A.B. and H.B. M.B. did not see what occurred between A.B.
and the defendant. Thereafter, the State rested and the defense did not call any witnesses.
¶ 16 In closing argument, the State argued that the evidence showed that, at the time of the
incident at issue, A.B. was about 10 years old and the defendant was over 17 years old, as the
defendant’s statement indicated that she was born in 1969. The State argued that the defendant
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committed an act of sexual penetration on A.B., by placing her mouth on A.B.’s sex organ. The
State explained that the statute defined sexual penetration, in part, as any contact between the sex
organ of one person and the mouth of another person. The State reiterated that the evidence showed
that the defendant placed her mouth and tongue on the naked skin of A.B.’s vagina. The defendant
moved her mouth and tongue on A.B.’s vagina, and it lasted for two or three minutes. The State
noted that the defendant’s recorded statement corroborated A.B.’s testimony as to what occurred.
The State asserted that it had proved the case beyond a reasonable doubt.
¶ 17 Defense counsel argued that it was the defendant herself who disclosed the incident, around
Christmas in 2017. Defense counsel pointed out that the defendant was very emotional during the
recorded interview. She was sobbing and clearly suffering. Defense counsel stated that, because
the defendant had disclosed the incident to medical personnel, she had no reason to lie during her
recorded interview with Houghton. The defendant disclosed the information because she wanted
to get help for herself and for A.B. Defense counsel argued that the recorded statement indicated
that the defendant did not force, threaten, or drug A.B. Defense counsel noted that, in the recorded
interview, the defendant indicated that she had started to put her mouth toward A.B.’s vagina but,
when she saw the look of horror on A.B.’s face, she stopped. Defense counsel argued that there
was no contact between the defendant’s mouth and A.B.’s sex organ and that the defendant
admitted that there was contact only after Houghton told her, “that’s not what [A.B] said.” Defense
counsel argued that the defendant was very emotional and loved her children. She admitted that
there was contact only after Houghton accused her of calling A.B. a liar. Further, the defendant’s
statement, “maybe there is a kiss, or I don’t know. It was confusing,” was equivocal. Defense
counsel asked the trial court to consider how distraught the defendant was when she made her
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admission. Defense counsel noted that the defendant cared for A.B. for many years and A.B. did
not disclose any incident prior to the defendant’s statements.
Defense counsel further argued that, if the trial court found that there was contact, the trial court
should consider the lesser included offense of aggravated criminal sexual abuse, which is based
on sexual conduct such as fondling or touching between the defendant’s mouth and A.B.’s sex
organ. Defense counsel asserted that it was a surface-to-surface contact. Defense counsel
acknowledged that predatory criminal sexual assault of a child also included contact, however
slight. But, she argued, if any mouth to sex organ touch would be predatory assault and never
aggravated criminal sexual abuse, the aggravated criminal sexual abuse statute should include an
exception for mouth to sex organ touching but noted that it did not include any exception. Defense
counsel asserted that the statutes were vague as to what would apply in this case and that thus the
trial court should be lenient. Because the statutes did not indicate that mouth to sex organ touching
was always predatory criminal sexual assault, the lesser included offense of aggravated criminal
sexual abuse should apply.
¶ 18 Following argument, the trial court found that the evidence showed that the incident at
issue occurred in 2010. At that time, A.B. was younger than 13 and the defendant was older than
17. The trial court found both A.B. credible in her testimony and the defendant credible in her
recorded interview with the police. The trial court found the defendant guilty of predatory criminal
sexual assault.
¶ 19 On July 23, 2020, after denying the defendant’s motion for judgment notwithstanding the
verdict or a new trial, the matter proceeded to sentencing. The defendant made a statement in
allocution. The defendant stated that she was very sorry for what happened and had tried to make
it up to A.B. by being a good parent. She ultimately disclosed the incident because she wanted
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A.B. to get help for pain and mental health struggles resulting from the incident. The defendant
asserted that, if her sentence was too harsh, A.B. “will regret what she did and it will make things
worse for her.” The defendant asked for the minimum sentence, noting that she had other children
to take care of. The defendant stated that she was a valued member of society and a business owner.
The defendant stated that she hoped to make amends for her behavior, but she could not do so from
a prison cell.
¶ 20 The trial court stated that it considered, in mitigation, that the defendant’s conduct did not
cause serious physical harm, the defendant did not have an extensive criminal history, and the
defendant had mostly led a law-abiding life. The trial court noted that the defendant had mental
health issues but was receiving adequate treatment while in custody. The trial court commented,
as an aside, that the defendant wanted consideration for being the one who reported the incident to
medical personnel. The trial court noted, nonetheless, that A.B. had to come to court to testify in
front of strangers, which hardly showed that the defendant was looking out for her.
¶ 21 In aggravation, the trial court considered that the defendant’s conduct caused serious
psychological harm to A.B. The trial court also considered that the defendant was A.B.’s
stepparent and that she was in a position of trust, which was obliterated. The trial court also
considered that the sentence should be a deterrent to others.
¶ 22 The trial court stated that it read the presentence investigation report (PSI) and listened to
the defendant and the arguments of counsel. The PSI indicated that the defendant had been sexually
molested as a child. The PSI also included a statement from A.B. that indicated that she had sought
mental health counseling as a result of the abuse. A.B. stated that, at one point, she spent $200 per
month for six months on counseling, for a total cost of $1200. The trial court sentenced the
defendant to 11 years’ imprisonment and 3 years’ mandatory supervised release. The trial court
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ordered the defendant to pay a $250 DNA fee and $1200 in restitution. The trial court further
ordered that the defendant register as a sex offender. Following the denial of her motion to
reconsider the sentence, the defendant filed a timely notice of appeal.
¶ 23 II. ANALYSIS
¶ 24 The defendant’s first contention on appeal is that defense counsel provided ineffective
assistance in failing to subject the State’s case against her to any meaningful adversarial testing.
Ordinarily, in determining whether a defendant was denied the effective assistance of counsel, a
defendant must show both that counsel’s performance was deficient and that the deficiency
prejudiced the defendant. People v. Cherry, 2016 IL 118728, ¶ 24 (citing Strickland v. Washington,
466 U.S. 668, 687 (1984)). However, this two-part test need not be applied, and prejudice will be
presumed, where (1) the defendant is denied counsel at a critical stage of the proceedings,
(2) counsel entirely fails to subject the State’s case to meaningful adversarial testing, or (3) counsel
is called upon to represent a client in circumstances under which no lawyer could provide effective
assistance. Id. ¶ 25 (citing United States v. Cronic, 466 U.S. 648, 659-61 (1984)).
¶ 25 The United States Supreme Court has characterized the second Cronic exception, failing
to subject the State’s case to meaningful adversarial testing, as narrow and infrequently applied.
See id. ¶ 26 (citing Florida v. Nixon, 543 U.S. 175, 190 (2004)). For the exception to apply, it is
not enough that counsel failed to oppose the prosecution at specific points in the proceeding. Id.
(citing Bell v. Cone, 535 U.S. 685, 697 (2002)). Rather, counsel’s failure must be complete, such
that he or she failed to oppose the prosecution throughout the proceeding as a whole. Id.
Accordingly, courts have rarely applied the second Cronic exception, explaining that only
nonrepresentation, not poor representation, triggers the presumption of prejudice under Cronic. Id.
(citing Miller v. Martin, 481 F.3d 468, 473 (7th Cir. 2007)). The application of the second Cronic
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exception is so rare that, in the 30 years since Cronic was decided, our supreme court has found
per se ineffectiveness under this exception in only two cases. Id. ¶ 27.
¶ 26 In arguing that counsel was per se ineffective under Cronic, the defendant relies on one of
those two cases, People v. Hattery, 109 Ill. 2d 449 (1985). In Hattery, the defendant pleaded not
guilty to the murder of a woman and her two children. Id. at 458. In opening statements, the
prosecution described the circumstances of the murders. Despite the not guilty plea, defense
counsel asserted, in opening statements, that the defendant “did everything” the prosecution stated
he did and that he, defense counsel, was “not asking [the jury] to find [the defendant] not guilty.”
(Internal quotation marks omitted.) Id. at 458, 464. Further, defense counsel advanced no theory
of defense at trial, presented no evidence, and did not make a closing argument. Id. at 459. In
holding that defense counsel was per se ineffective, our supreme court emphasized that defense
counsel’s concession of guilt in opening statements was unequivocal. Id. at 464. The Hattery court
also noted that defense counsel’s trial strategy, which attempted to show that the defendant was
guilty of murder but undeserving of the death penalty, was at odds with the defendant’s plea of not
guilty. Id.
¶ 27 In the present case, the defendant argues that, as in Hattery, defense counsel was per se
ineffective in conceding her guilt during opening statements, failing to conduct meaningful cross-
examination of the State’s witnesses or present any evidence in defense, and again conceding guilt
and misapplying the law in closing arguments.
¶ 28 The defendant’s contention is without merit, as defense counsel did not fail to subject the
State’s case to meaningful adversarial testing. Unlike in Hattery, defense counsel in this case did
not unequivocally concede the defendant’s guilt in opening statements. Defense counsel
acknowledged, in her opening statement, that “this incident happened in 2010” but did not state
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what specific acts the defendant committed. Further, defense counsel ultimately argued that the
prosecution would not be able to prove that the defendant was guilty of predatory criminal sexual
assault. This is in stark contrast to the circumstances in Hattery, where defense counsel stated that
he was not asking the jury to find the defendant not guilty.
¶ 29 Further, defense counsel in this case did not fail entirely to cross-examine the State’s
witnesses or present a defense. The defendant argues that defense counsel did not cross-examine
either A.B. or Houghton in such a manner as to cast doubt on their credibility or bolster the
defendant’s defense. However, defense counsel questioned A.B. about her marijuana and alcohol
use on the day of the incident, implicitly attacking her ability to remember the events at issue.
Defense counsel also questioned A.B. about her delayed disclosure of the event, thus challenging
her credibility. The defendant argues that such a challenge was fruitless, as it is common for
victims of child sex offenses to delay reporting, out of fear or shame. While we agree that attacking
A.B.’s credibility on this basis was weak, it does not mean that defense counsel failed to provide
meaningful adversarial testing. See People v. Ganus, 148 Ill. 2d 466, 474 (1992) (“A weak or
insufficient defense does not indicate ineffectiveness of counsel in a case where a defendant has
no defense. *** [I]t would appear that defense counsel used his imagination and resourcefulness
to come up with something where he had nothing to go on.”).
¶ 30 While the defendant argues that defense counsel did not effectively cross-examine
Houghton, the defendant does not indicate what line of questioning defense counsel failed to
pursue. Houghton’s testimony was largely related to what was shown on the recorded interview,
which the trial court was able to view. Further, defense counsel elicited testimony from Houghton
indicating that he was aware of the content of A.B.’s CAC disclosure statement at the time of the
defendant’s interview and counsel then argued in closing that Houghton used that information to
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prompt the defendant’s admission to making physical contact with A.B.’s vagina. The defendant’s
argument that defense counsel failed to present a defense is without merit because, at a minimum,
defense counsel required the State to put on its case and prove the defendant guilty beyond a
reasonable doubt. See Cronic, 466 U.S. at 656 (the Cronic standard is not met where defense
counsel holds the State to its burden of proof); Cherry, 2016 IL 118728, ¶ 29 (the Cronic exception
applies only when counsel entirely fails to subject the State’s case to meaningful adversarial
testing).
¶ 31 The defendant also argues that defense counsel failed to conduct any meaningful
adversarial testing because counsel conceded the defendant’s guilt and misapplied the law during
closing arguments. Upon our own review of the record, we conclude that defense counsel did not
concede the defendant’s guilt. While defense counsel stated, in closing, that the defendant initially
disclosed the incident and had no reason to lie during the police interview, defense counsel further
argued that the defendant’s initial statement to the police was the truth, that she saw the look of
horror on A.B.’s face, stopped herself, and never actually made physical contact with A.B.’s
vagina. Defense counsel argued that the defendant admitted to making contact only when
prompted by the police and that she did so because she was emotionally distraught and missing
her children. Further, defense counsel argued that the defendant’s confession was equivocal in that
she stated, “Yeah, maybe there is a kiss, or I don’t know. It was confusing.”
¶ 32 The defendant also asserts that defense counsel had a misunderstanding of the law.
Specifically, the defendant asserts that defense counsel was arguing in closing that the evidence
was insufficient to prove predatory criminal sexual assault because there was no penetration, only
surface-to-surface contact. The defendant mischaracterizes defense counsel’s argument. Defense
counsel never argued that the evidence was insufficient because there was no penetration. Rather,
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defense counsel argued that, if the trial court found that there was, in fact, contact between the
defendant’s mouth and A.B.’s vagina, then the surface-to surface contact supported a finding of
guilt on the lesser included offense of aggravated criminal sexual abuse. The argument was that,
since the same alleged conduct satisfied both statutes, the statutes were vague and that a finding
of guilt on the lesser offense was appropriate. Although this argument may have been weak, it does
not indicate ineffective assistance of counsel. Ganus, 148 Ill. 2d at 474.
¶ 33 In summary, as defense counsel did not concede the defendant’s guilt, cross-examined the
witnesses, and argued in closing that the defendant was not guilty, the defendant’s argument that
defense counsel failed to conduct any meaningful adversarial testing is without merit. Cf. Hattery,
109 Ill. 2d at 458-59 (no meaningful adversarial testing where defense counsel conceded guilt in
opening statement, advanced no theory of defense at trial, presented no evidence, and did not make
a closing argument); People v. Morris, 209 Ill. 2d 137, 182-85 (2004), overruled in part on other
grounds by People v. Pitman, 211 Ill. 2d 502 (2004) (no meaningful adversarial testing where
defense counsel admitted the defendant’s guilt and introduced evidence of the defendant’s
involvement in another grisly and unrelated murder).
¶ 34 The defendant alternatively argues that, even if defense counsel’s performance does not
bring the case within the scope of Cronic and Hattery, defense counsel was ineffective under
Strickland. As noted above, to prevail on a claim of ineffective assistance of counsel under
Strickland, a defendant must show both that counsel’s performance was deficient and that the
deficient performance prejudiced the defendant. Cherry, 2016 IL 118728, ¶ 24. More specifically,
the defendant must demonstrate that counsel’s performance was objectively unreasonable under
prevailing professional norms and that there is a “reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S.
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at 694. A defendant must satisfy both prongs of the Strickland test to prevail, and the failure to
establish either prong precludes a finding of ineffective assistance of counsel. People v.
Henderson, 2013 IL 114040, ¶ 11.
¶ 35 The defendant’s argument is based on the premise that defense counsel conceded the
defendant’s guilt in closing argument and that defense counsel argued that surface-to-surface
contact was insufficient to prove predatory criminal sexual assault, demonstrating a
misapprehension of the law. As discussed above, these assertions are inaccurate representations of
the record. Defense counsel did not concede the defendant’s guilt in closing argument. Further,
defense counsel did not demonstrate a misapprehension of the law. Defense counsel argued that,
since the alleged contact satisfied the elements of both predatory criminal sexual assault and
aggravated criminal sexual abuse, the defendant should be found guilty of only the lesser offense,
aggravated criminal sexual abuse. Accordingly, the defendant has failed to establish either prong
of the Strickland test with these arguments.
¶ 36 The defendant also argues that defense counsel conducted insufficient cross-examination
of the State’s witnesses, did not move to dismiss the indictment or present evidence that the
predatory criminal sexual assault statute was unconstitutionally vague, and failed to move to
suppress the defendant’s confession based on coercion. These arguments are also unavailing. The
defendant has failed to establish that defense counsel’s performance was objectively unreasonable
under prevailing professional norms. Defense counsel argued that the defendant’s confession was
the result of being distraught and confused, and of prompting by the police, and that the State failed
to prove that the defendant made any contact with the victim. While the defense was ultimately
unsuccessful, this does not establish that defense counsel’s representation was objectively
unreasonable. See People v. Shatner, 174 Ill. 2d 133, 148 (1996) (“If a defendant enters a not-
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guilty plea in the face of overwhelming evidence of his guilt, we are unwilling to find that his
counsel was ineffective simply because he failed to contrive a leak-proof theory of innocence on
defendant’s behalf.”).
¶ 37 The defendant argues that defense counsel conducted insufficient cross-examination of the
State’s witnesses. However, the defendant has not established that defense counsel’s cross-
examination was objectively unreasonable. As noted above, defense counsel’s cross-examination
of A.B. elicited responses that challenged her credibility, and the cross-examination of Houghton
suggested that the defendant’s confession had been coerced by the interrogation. On appeal, the
defendant does not suggest any other lines of questioning that would have challenged A.B.’s
credibility or elicited responses that would have supported an acquittal.
¶ 38 Finally, also without merit are the defendant’s arguments that defense counsel was
ineffective in failing to file motions to suppress the indictment and her confession and in failing to
present evidence that the predatory criminal sexual assault statute was unconstitutionally vague.
The decision of whether or not to file pretrial motions is generally considered a matter of trial
strategy, and a possible error in that strategy does not rise to the level of ineffective assistance.
People v. Martin, 236 Ill. App. 3d 112, 121 (1992). Moreover, the defendant does not allege on
appeal any facts that would have supported the filing of any pretrial motions or supported a
vagueness challenge to the statute and has not shown that any such challenges would have had any
probability of success. See People v. Patterson, 217 Ill. 2d 407, 438 (2005) (the failure to file a
motion does not establish deficient representation when the motion would have been futile).
Accordingly, the defendant has failed to establish ineffective assistance of counsel.
¶ 39 The defendant’s second contention on appeal is that her 11-year prison sentence is
excessive. The defendant argues that the trial court did not properly weigh her significant potential
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for rehabilitation as demonstrated by her lack of criminal history, her ability to overcome a sexually
abusive childhood, and her completion of over 180 courses during the two years she was
incarcerated prior to sentencing. The defendant also argues that the trial court made comments
indicating that it based her sentence, in part, on a desire to punish her for exercising her right to
trial.
¶ 40 The Illinois Constitution 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. To achieve the constitutionally mandated balance
between the retributive and rehabilitative purposes of punishment, the trial court must carefully
consider all aggravating and mitigating factors, including “the defendant’s age, demeanor, habits,
mentality, credibility, criminal history, general moral character, social environment, and
education, as well as the nature and circumstances of the crime and of defendant’s conduct in the
commission of it.” People v. Quintana, 332 Ill. App. 3d 96, 109 (2002).
¶ 41 “[T]he trial court is in the best position to fashion a sentence that strikes an appropriate
balance between the goals of protecting society and rehabilitating the defendant.” People v. Risley,
359 Ill. App. 3d 918, 920 (2005). Thus, we may not disturb a sentence within the applicable
sentencing range unless the trial court abused its discretion. People v. Stacey, 193 Ill. 2d 203, 209-
10 (2000). A sentence is an abuse of discretion only if it is at great variance with the spirit and
purpose of the law or manifestly disproportionate to the nature of the offense. Id. at 210. We may
not substitute our judgment for that of the trial court merely because we might weigh the pertinent
factors differently. Id. at 209.
¶ 42 In determining an appropriate sentence, relevant considerations include the nature of the
crime, the protection of the public, deterrence, and punishment, as well as the defendant’s
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rehabilitative prospects. People v. Kolzow, 301 Ill. App. 3d 1, 8 (1998). The weight to be attributed
to each factor in aggravation and mitigation depends upon the particular circumstances of the case.
Id. There is a presumption that the trial court considered all relevant factors in determining a
sentence, and that presumption will not be overcome without explicit evidence from the record
that the trial court did not consider mitigating factors or relied on improper aggravating factors.
People v. Payne, 294 Ill. App. 3d 254, 260 (1998).
¶ 43 After reviewing the record, we conclude that the trial court did not abuse its discretion
when it sentenced the defendant to 11 years’ imprisonment. The offense of predatory criminal
sexual assault of a child is a Class X felony with a sentencing range of 6 to 60 years’ imprisonment.
See 720 ILCS 5/11-1.40(b)(1) (West 2018). Because the defendant’s 11-year sentence fell within
the applicable sentencing range, we presume that the sentence is proper. People v. Charleston,
2018 IL App (1st) 161323, ¶ 16. This presumption will be rebutted only if the defendant makes an
affirmative showing that the sentence greatly departs from the spirit and purpose of the law or the
constitutional guidelines. People v. Boclair, 225 Ill. App. 3d 331, 335 (1992). The defendant has
not made such a showing.
¶ 44 The defendant argues that the trial court did not place enough weight on her rehabilitative
potential, which was demonstrated in her lack of criminal history, self-imposed treatment for the
sexual abuse she suffered as a child, and significant participation in educational courses while
incarcerated. However, at the sentencing hearing, the trial court stated that it considered the
defendant’s lack of criminal history and that she had, for the most part, led a law-abiding life. The
trial court clearly weighed the factors in mitigation, as it sentenced the defendant to a term of years
much closer to the minimum sentence than the maximum. Further, the trial court is presumed to
have considered the defendant’s rehabilitative potential (Payne, 294 Ill. App. 3d at 260), and there
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is nothing in the record to rebut that presumption. Further, in imposing a sentence that was five
years over the minimum, the trial court considered relevant factors in aggravation. Specifically,
the trial court considered that the offense caused the victim serious psychological harm, the
defendant was A.B.’s stepparent and thus in a position of authority and trust, and the sentence was
necessary to deter others. The defendant’s potential for rehabilitation is not entitled to more weight
than these aggravating factors. People v. Weiser, 2013 IL App (5th) 120055, ¶ 32. The defendant
is essentially asking this court to reweigh the evidence in aggravation and mitigation. We decline
to reweigh the evidence or substitute our judgment for that of the trial court. Stacey, 193 Ill. 2d at
209.
¶ 45 The defendant also argues that the trial court erred in basing her sentence, in part, on a
desire to punish her for exercising her right to trial. A sentence will be set aside where it was
imposed because the defendant refused to plead guilty and instead availed herself of her
constitutional right to trial. People v. Ward, 113 Ill. 2d 516, 526 (1986).
¶ 46 In so arguing, the defendant refers to the following, which occurred at the sentencing
hearing. The trial court noted that one of the defendant’s arguments in mitigation was that the
defendant was the one who ultimately came forward with the information that resulted in her
prosecution for the offense. The defendant asserted that she did so because she wanted to prompt
A.B. to get help for the psychological harm that resulted from the incident. As to this argument,
the trial court stated:
“THE COURT: What is conveniently left out of that is while the defendant is doing
all of that, exercising the constitutional rights that every one [sic] enjoys, the victim also
came to court and had to testify in open court about what happened to her to people she
doesn’t know. I say that as an aside. That’s not exactly looking out for the victim.”
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¶ 47 The defendant’s argument that her sentence was imposed as a punishment for exercising
her right to trial is clearly rebutted by the record. In the above quote, the trial court stated that this
was only “an aside.” Further, after stating the above, the trial court also stated that it does “not
punish people for exercising their rights.” The trial court explained that its sentence was based on
the acts and character of the defendant and what it believed was an appropriate sentence. The trial
court then reiterated:
“THE COURT: I do not sentence people for exercising their rights. I cannot
sentence people for some of the editorial comments that I hope sink in in the future while
you are sitting in jail thinking about what you have done and what you have not done in
relation to this case.”
Accordingly, after noting that A.B. was required to come to court to testify, the trial court stated
twice that it was not basing its sentence on this observation or on the defendant’s exercise of her
right to trial. The defendant’s argument is thus without merit.
¶ 48 The defendant’s final contention on appeal is that the restitution order should be vacated
because the trial court failed to consider the defendant’s ability to pay, to fix a method of payment,
and to set a time period for it to be paid in full. The defendant concedes that she did not object at
the sentencing hearing or raise the issue in a postsentencing motion but argues that we should
review this issue under the plain-error doctrine or as an ineffective assistance claim.
¶ 49 In the sentencing context, unpreserved errors may be reviewed under the plain-error
doctrine if (1) the evidence at sentencing was closely balanced or (2) the error was so egregious as
to deny the defendant a fair sentencing hearing. People v. Walsh, 2016 IL App (2d) 140357, ¶ 17.
The first inquiry under plain-error review is to determine whether error actually occurred. People
v. Morrow, 2014 IL App (2d) 130718, ¶ 11.
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¶ 50 Section 5-5-6(f) of the Unified Code of Corrections (Code) provides in relevant part:
“Taking into consideration the ability of the defendant to pay, *** the court shall determine
whether restitution shall be paid in a single payment or in installments, and shall fix a
period of time not in excess of 5 years, *** within which payment of restitution is to be
paid in full. *** However, if the court deems it necessary ***, [it] may extend [the period
of time] beyond 5 years.” 730 ILCS 5/5-5-6(f) (West 2018).
In setting the amount of restitution, the trial court “is not required to consider a defendant’s
financial circumstances.” People v. Day, 2011 IL App (2d) 091358, ¶ 56. Rather, “the trial court
is required to consider the ability to pay only when determining the time and manner of payment
or when considering a petition to revoke restitution.” (Emphasis in original.) Id. Compliance with
the statute is mandatory. People v. White, 146 Ill. App. 3d 998, 1004 (1986).
¶ 51 In the present case, the trial court’s restitution order did not set forth (1) the date by which
the defendant was to pay restitution or (2) whether the defendant was to pay in a lump sum or in
installments. In People v. Brooks, 158 Ill. 2d 260, 272 (1994), our supreme court excused a trial
court’s failure to set the manner for payment of restitution where the trial court set a concrete
deadline for the payment of restitution. Under those circumstances, the Brooks court held that it
could be inferred that restitution was to be paid in a single payment. Id. Here, unlike Brooks, the
trial court did not set a deadline for the restitution payment. A restitution order is “fatally
incomplete” when the trial court “does not specify a particular time” for payment. In re Estate of
Yucis, 382 Ill. App. 3d 1062, 1067 (2008). We thus conclude that the trial court erred in failing to
set a time limit for payment of the restitution as required by the statute.
¶ 52 As we have determined that the trial court erred in failing to set a deadline for payment of
the restitution, we must next determine whether this error rises to the level of plain error. We
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conclude that plain-error review is appropriate in this case under the second prong, as the error
challenges the integrity of the judicial process and undermines the fairness of the defendant’s
sentencing hearing. See People v. Mullen, 2018 IL App (1st) 152306, ¶ 38 (“We can and should
review legal errors in the assessment of fines and fees as plain error.”). The defendant needs to
know the deadline for payment of restitution, as there are consequences for not complying with a
restitution order. See 730 ILCS 5/5-5-6(b) (West 2018) (if restitution is not paid in the time and
manner specified by the court, the court may order the seizure of the defendant’s property).
¶ 53 Moreover, even if this error did not rise to the level of second-prong plain error, we could
review the error in the interests of justice. See People v. Hibbler, 2019 IL App (4th) 160897, ¶ 81
(despite the defendant’s forfeiture, the matter was remanded for compliance with section 5-5-6(f)
of the Code in setting the time and manner of payment of restitution); People v. Fontana, 251 Ill.
App. 3d 694, 704-05 (1993) (noting that forfeiture was a limitation on the parties and addressing,
in the interest of justice, the trial court’s failure to set the time and manner of payment of
restitution). We note that one of the purposes of restitution is to make a victim of a crime whole.
Id. at 707. Without a deadline for the payment of restitution, the defendant could not be found
delinquent in failing to pay. Without a delinquency, a crime victim could not enforce a restitution
judgment. See 730 ILCS 5/5-5-6(m)(3) (West 2018) (a restitution order acts as a judgment lien in
favor of the victim, who may enforce any payment that is delinquent). Accordingly, we remand
for the limited purpose of allowing the trial court to determine, taking into consideration the
defendant’s ability to pay, the terms and timeframe for the defendant to satisfy her restitution
obligation. Our resolution of this issue makes it unnecessary to address the defendant’s remaining
claim that her trial counsel rendered ineffective assistance in failing to object to the restitution
order.
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¶ 54 III. CONCLUSION
¶ 55 For the reasons stated, the defendant’s conviction and sentence are affirmed and we remand
for the limited purpose of allowing the trial court to set a time limit and terms for the payment of
¶ 56 Affirmed and remanded with directions.
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No. 2-20-0640
Decision Under Review: Appeal from the Circuit Court of Kane County, No. 18-CF-659; the Hon. Donald J. Tegeler, Judge, presiding.
Attorneys James E. Chadd, Douglas R. Hoff, and Bryon M. Reina, of State for Appellate Defender’s Office, of Chicago, for appellant. Appellant:
Attorneys Jamie L. Mosser, State’s Attorney, of St. Charles (Patrick Delfino, for Edward R. Psenicka, and Victoria E. Jozef, of State’s Attorneys Appellee: Appellate Prosecutor’s Office, of counsel), for the People.
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