NOTICE This order was filed under Supreme FILED Court Rule 23 and may not be cited 2019 IL App (4th) 170759-U November 12, 2019 as precedent by any party except in Carla Bender the limited circumstances allowed 4th District Appellate under Rule 23(e)(1). NO. 4-17-0759 Court, IL IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Woodford County MATHEW D. DURST, ) No. 16CF54 Defendant-Appellant. ) ) ) Honorable ) Charles M. Feeney, III, ) Judge Presiding.
JUSTICE TURNER delivered the judgment of the court. Presiding Justice Holder White and Justice Knecht concurred in the judgment.
ORDER
¶1 Held: The circuit court did not abuse its discretion by sentencing defendant to five consecutive 10-year prison terms for possession of child pornography with the intent to disseminate, and defendant’s as-applied constitutional challenge to his sentence is premature.
¶2 Pursuant to an open plea agreement, defendant, Mathew D. Durst, pleaded guilty
to five counts of possession of child pornography with the intent to disseminate. After an
October 2016 sentencing hearing, the Woodford County circuit court sentenced defendant to five
consecutive 10-year prison terms. Defendant filed a motion to reconsider his sentence, which the
court denied in January 2017.
¶3 Defendant appealed, and this court allowed defendant’s agreed motion for
summary remand for strict compliance with Illinois Supreme Court Rule 604(d) (eff. Mar. 8,
2016). People v. Durst, No. 4-17-0024 (June 19, 2017) (motion order unpublished under Illinois Supreme Court Rule 23(c)). On remand, the circuit court denied defendant’s motion to
reconsider after an October 2017 hearing. Defendant again appeals and asserts his aggregate 50-
year prison sentence is (1) excessive and (2) an unconstitutional de facto life sentence. We
affirm.
¶4 I. BACKGROUND
¶5 In April 2016, a grand jury indicted defendant with 11 counts of possession of
child pornography (720 ILCS 5/11-20.1(a)(6) (West 2016)) and 10 counts of possession with
intent to disseminate child pornography (720 ILCS 5/11-20.1(a)(2) (West 2016)) for his actions
on March 24, 2016. At the September 16, 2016, hearing, defendant pleaded guilty to five counts
of possession with intent to disseminate child pornography (counts II, IV, VI, VIII, and X).
Those counts alleged defendant, with knowledge of the nature or content thereof, knowingly
possessed with the intent to disseminate a video or similar visual reproduction or depiction by
computer, said video *** depicting (1) “two boys he reasonably should have known to be under
the age of 13 years engaging in oral sex” (count II), (2) “a boy he reasonably should have known
to be under the age of 13 years engaging in anal sex with an adult male” (count IV), (3) “a boy
he reasonably should have known to be under the age of 13 years having oral sex performed on
him by an adult male” (count VI), (4) “a boy he reasonably should have known to be under the
age of 13 years performing oral sex on an adult male” (count VIII), and (5) “three boys he
reasonably should have known to be under the age of 13 years performing oral sex on one
another.” Under the plea agreement, defendant’s sentences were open, and the State sought
dismissal of the other 16 counts.
¶6 Additionally, at the plea hearing, the circuit court admonished defendant pursuant
to Illinois Supreme Court Rule 402(a) (eff. July 1, 2012) and determined his plea was voluntary.
-2- The prosecutor gave the following factual basis for the pleas:
“Your Honor, in February 2016 there was a complaint made by employees
of the Spring Bay library that one of their computer monitors—a patron had come
along and used a computer that was for public access, and there was child—what
appeared to be child pornography on that computer. There was an account name
that through an investigation came back—it was a Gmail account that came back
to this defendant Mathew Durst. Subsequent investigation by Homeland Security
Agent [Eric] Bowers he reached out in an undercover capacity to [defendant] that
same e-mail account or Google account, and heard that he had child pornography,
requested it and within an hour child pornography was sent from the defendant’s
Gmail account to Agent Bowers.
A subsequent search warrant was executed on March 24, 2016, for the
home of [defendant]. There was a zip drive on [defendant]’s dresser, and on that
zip drive there were images on counts—and the videos, I’m sorry, on Counts II,
IV, VI, VIII, and X as alleged in the Bill of Indictment that showed boys under
the age of 13 in various nude and in various forms of—engaging in sex acts. All
the boys were under the age of 13 just by looking at them. And they were as
described performing those acts.
And this was in the defendant’s control. He did not have any authority
under any type of law to be in possession of the child pornography. And based
upon the previous dissemination to Agent Bowers this was a possession with
intent to deliver.”
Defense counsel concurred in the prosecutor’s factual basis. The court accepted defendant’s
-3- guilty pleas to the 5 counts, dismissed the other 16 counts, and set the case for a sentencing
hearing.
¶7 The presentence investigation report showed defendant had prior convictions for
“Indecent Solicitation/Aggravated Criminal Sexual Abuse” in 2000 and “Entice Child Remove
Clothes/2nd (Attempt)” in 2001. He received 24 months’ probation for both convictions. With
the first conviction, defendant’s probation was revoked, and he was resentenced to 24 months’
probation with 30 days in jail. As to defendant’s health, the report noted defendant described his
health as “poor.” Defendant suffered from spina bifida and lacked bowel and urinary control.
Defendant also reported having multiple surgeries and hospital stays. Defendant also reported
being diagnosed with manic depression, impulse control disorder, and obsessive-compulsive
disorder.
¶8 Attached to the presentence investigation were a list of defendant’s medications
and medical needs, two letters from medical professionals, and five letters from family members.
In his letter, Dr. Shawn Piers explained defendant had spina bifida, neurogenic bladder, anemia,
significant esophageal reflux, urinary difficulties, depression, chronic constipation, and kidney
function abnormalities. Defendant was on multiple medications requiring precision
administration to maintain his health. Due to his health problems, defendant must catheterize
himself several times a day and must empty his bowel with an enema every other day.
Additionally, defendant had a back stimulator that required being charged every other day and
needed a walker to walk. Dr. Piers described defendant as “not the typical 35-year old” and
noted defendant would likely end up in the hospital if his medical needs are not met. Dr. Paul
Fishkin stated defendant needed intravenous medication for his intermittent iron deficiency
anemia.
-4- ¶9 The letters from defendant’s relatives explained he functioned as a child and was
dependent on others. One of defendant’s uncles explained defendant had never known right
from wrong. Even after punishment, defendant would do the same wrong thing again. The
uncle also noted defendant was sexually abused as a child and the abuse continued into
adulthood. Moreover, the uncle explained defendant was in a State program to help him
socialize properly, and the helper would take defendant to the library and leave him unsupervised
in the library.
¶ 10 At the October 21, 2016, sentencing hearing, the State presented defendant’s July
27, 2015, sex offender registration form and the testimony of Agent Bowers. Defendant
presented Dr. Ryan Finkenbine’s September 1, 2016, fitness report.
¶ 11 Agent Bowers testified he sent defendant a short e-mail seeking child
pornography. Agent Bowers had 10 years of training and experience and knew the terms
associated with child pornography material featuring young boys. After about three days, Agent
Bowers received a hyperlink to a Dropbox account from defendant. Dropbox is a cloud storage
site. He clicked on the link, which accessed two file folders. One folder contained 63 images of
young boys in various states of undress and engaging in various sexual acts with each other or
themselves. The other folder contained 14 videos of boys engaged in sexual acts. Agent Bowers
received another e-mail from defendant a few days after the first one, indicating it was Agent
Bowers turn to send pornographic material to defendant. Agent Bowers sent an e-mail back
stating he already possessed the material defendant sent him and asked for other material. A few
days later the search warrant was executed on defendant’s residence.
¶ 12 Agent Bowers further testified he interviewed defendant after the search warrant
was executed. According to Agent Bowers, defendant’s responses made sense, and defendant
-5- would answer the questions without long delays. Agent Bowers was surprised defendant had
self-taught himself computer programming using the language Linux. Moreover, Agent Bowers
testified defendant was released on home confinement and a laptop computer was found
concealed in defendant’s bedroom. The computer was searched and over 60 images and 100
videos of child pornography were found on the computer.
¶ 13 In closing arguments, the State asked for 15 years on each count, and defense
counsel asked for the minimum 6 years on each count. In announcing its sentence, the circuit
court noted it found defendant fell under the definition of intellectual disability as set forth in
section 5-1-13 of the Unified Code of Corrections (Unified Code) (730 ILCS 5/5-1-13 (West
2016)) The court found defendant’s intellectual disability was a mitigating factor. As to
aggravating factors, the court noted defendant’s criminal history involved children and sexual
issues. It also noted the sentence was necessary to deter others from committing the same crime.
Moreover, the court found defendant’s failure to disclose his e-mail address on his sex offender
registration form was indicative of his understanding the wrongfulness of what he was doing. It
noted “a minimum sentence would significantly take away from the seriousness of this offense
when coupled with his prior criminal history.” The court sentenced defendant to five
consecutive terms of 10 years’ imprisonment.
¶ 14 On November 3, 2016, defendant filed a timely motion to reconsider his sentence,
contending (1) his sentence was excessive; (2) “the court failed to follow Article 1, Section 2, of
the Illinois Constitution, which states as follows: ‘All penalties to be determined both according
to the seriousness of the offense and with the objective of restoring the offender to useful
citizenship’ ”; and (3) the sentence imposed was inconsistent with the facts that defendant
pleaded guilty, the crime was a nonviolent one, and defendant’s limited criminal history. At a
-6- January 2017 hearing, the circuit court denied defendant’s motion to reconsider his sentence.
Defendant appealed, and this court allowed defendant’s agreed motion for summary remand for
strict compliance with Rule 604(d). Durst, No. 4-17-0024.
¶ 15 On remand, defense counsel filed a certificate required by Illinois Supreme Court
Rule 604(d) (eff. July 1, 2017) but did not file a new motion to reconsider. After an October 5,
2017, hearing, the circuit court again denied defendant’s motion to reconsider his sentence.
¶ 16 On October 10, 2017, defendant filed a timely notice of appeal from the circuit
court’s October 5, 2017, denial of his motion to reconsider his sentence. The notice of appeal
was in sufficient compliance with Illinois Supreme Court Rule 606 (eff. July 1, 2017) but listed
an incorrect date for the appealed judgment. On October 26, 2017, defendant filed a timely
amended notice of appeal that listed the correct appealed judgment. See Ill. S. Ct. Rs. 606(d),
303(b)(5) (eff. July 1, 2017). Thus, this court has jurisdiction under Illinois Supreme Court Rule
604(d) (eff. July 1, 2017).
¶ 17 II. ANALYSIS
¶ 18 A. Excessive Sentence
¶ 19 On appeal, defendant first argues his 50-year aggregate sentence for five counts of
unlawful possession of child pornography with the intent to disseminate was excessive in light of
the nature and seriousness of the offenses. The State disagrees.
¶ 20 The Illinois Constitution mandates “[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. In sentencing a defendant, the court must
consider a number of statutory aggravating and mitigating factors. See 730 ILCS 5/5-5-3.1, 5-5-
3.2 (West Supp. 2015). However, “the seriousness of an offense is considered the most
-7- important factor in determining a sentence.” People v. Jackson, 2014 IL App (1st) 123258, ¶ 53,
23 N.E.3d 430.
¶ 21 With excessive-sentence claims, this court has explained appellate review of a
defendant’s sentence as follows:
“A trial court’s sentencing determination must be based on the
particular circumstances of each case, including factors such as the
defendant’s credibility, demeanor, general moral character,
mentality, social environment, habits, and age. [Citations.]
Generally, the trial court is in a better position than a court of
review to determine an appropriate sentence based upon the
particular facts and circumstances of each individual case.
[Citation.] Thus, the trial court is the proper forum for the
determination of a defendant’s sentence, and the trial court’s
decisions in regard to sentencing are entitled to great deference and
weight. [Citation.] Absent an abuse of discretion by the trial
court, a sentence may not be altered upon review. [Citation.] If
the sentence imposed is within the statutory range, it will not be
deemed excessive unless it is greatly at variance with the spirit and
purpose of the law or is manifestly disproportionate to the nature
of the offense.” (Internal quotation marks omitted.) People v.
Price, 2011 IL App (4th) 100311, ¶ 36, 958 N.E.2d 341 (quoting
People v. Hensley, 354 Ill. App. 3d 224, 234-35, 819 N.E.2d 1274,
1284 (2004)); see also People v. Alexander, 239 Ill. 2d 205, 212-
-8- 13, 940 N.E.2d 1062, 1066 (2010).
¶ 22 In this case, defendant challenges his aggregate prison term of 50 years for five
counts of unlawful possession of child pornography with the intent to disseminate (720 ILCS
5/11-20.1(a)(2) (West 2016)). The pornography that formed the basis of defendant’s five
convictions were videos. Section 11-20.1(c) of the Criminal Code of 2012 (720 ILCS 5/11-
20.1(c) (West 2016)) provides, in pertinent part, the following: “If the violation involves a film,
videotape, or other moving depiction, a violation of paragraph (2) of subsection (a) is a Class X
felony with a mandatory minimum fine of $1000 and a maximum fine of $100,000.” The
sentencing range for a Class X felony is a prison term of “not less than 6 years and not more than
30 years.” 730 ILCS 5/5-4.5-25(a) (West 2016). Moreover, section 5-8-4(d)(2.5) of the Unified
Code (730 ILCS 5/5-8-4(d)(2.5) (West 2016)) provides for mandatory consecutive sentences
when the defendant is convicted of violating, inter alia, section 11-20.1(a)(2) of the Criminal
Code of 2012. Thus, defendant’s sentences fall within the statutory sentencing range.
¶ 23 In support of his argument, defendant cites our supreme court’s decision in
People v. Stacey, 193 Ill. 2d 203, 210, 737 N.E.2d 626, 629 (2000), where it held the circuit
court abused its discretion by sentencing the defendant to two consecutive 25-year prison terms.
The supreme court found the sentences were manifestly disproportionate to the nature of the
offenses. Stacey, 193 Ill. 2d at 210, 737 N.E.2d at 630. There, the defendant momentarily
grabbed the breasts of two young girls, who were fully clothed at the time, and made lewd
comments and gestures. Stacey, 193 Ill. 2d at 210, 737 N.E.2d at 630. While such behavior was
appalling and harmful, the supreme court concluded it was not severe enough to warrant a 25-
year sentence. Stacey, 193 Ill. 2d at 210, 737 N.E.2d at 630. The supreme court stated it had to
adhere to the constitution’s mandate that penalties be determined according to the seriousness of
-9- the offense. Stacey, 193 Ill. 2d at 211, 737 N.E.2d at 630, citing Ill. Const.1970, art. I, § 11. In
reaching its holding, the supreme court emphasized it was not reweighing any aggravating or
mitigating factors. Stacey, 193 Ill. 2d at 210, 737 N.E.2d at 630.
¶ 24 Defendant contends his offenses were less serious than the ones in Stacey because
his offenses were victimless. We disagree. The defendant’s convictions in Stacey were for
aggravated criminal sexual abuse, a Class 2 felony (see 720 ILCS 5/12-16(g) (West 1994)), and
for criminal sexual abuse, which was elevated to a Class 2 felony because of his prior conviction
for aggravated criminal sexual abuse (720 ILCS 5/12-15(d) (West 1994)). Stacey, 193 Ill. 2d at
210, 737 N.E.2d at 629. Additionally, as a result of the defendant’s two prior Class 2 felony
burglary convictions, the defendant was eligible to be sentenced as a Class X offender on each
conviction. Stacey, 193 Ill. 2d at 210, 737 N.E.2d at 630 (citing 730 ILCS 5/5-5-3(c)(8) (West
1994)). Here, defendant’s convictions are Class X felonies. See 720 ILCS 5/11-20.1(c) (West
2016)). They were not elevated based on prior convictions. Unlike in Stacey, the legislature has
determined defendant’s actions alone warrant Class X sentencing. His 10-year sentence is at the
lower end of the Class X felony range as it is only four more years than the minimum.
Moreover, the videos defendant intended to disseminate depicted young males under the age of
13 engaged in sexual acts, a serious violation of societal norms. Accordingly, we do not find
defendant’s 10-year sentence for possession with the intent to disseminate a video depicting a
sex act with a minor is manifestly disproportionate to the nature of the offense.
¶ 25 Defendant also points out mitigating factors of his serious health issues and
special needs and appears to question the circuit court’s findings his sentence was necessary to
deter others from committing the same crime and defendant’s own need for deterrence.
However, the supreme court in Stacey emphasized it was not reweighing any aggravating or
- 10 - mitigating factors. See Stacey, 193 Ill. 2d at 210, 737 N.E.2d at 630. Here, defendant is
essentially asking us to reweigh the evidence at the sentencing hearing, which we will not do.
Thus, we find defendant’s five consecutive 10-year prison terms were not excessive.
¶ 26 B. De Facto Life Sentence
¶ 27 Defendant raises for the first time on appeal the argument his 50-year aggregate
prison term constitutes an unconstitutional de facto life sentence imposed on an intellectually
disabled person without applying the constitutional safeguards that originated with Atkins v.
Virginia, 536 U.S. 304 (2002), and created by Miller v. Alabama, 567 U.S. 460 (2012), and its
progeny. The State asserts Atkins and Miller do not apply to defendant and, even if they did,
defendant did receive the safeguards provided by those cases.
¶ 28 In Atkins, 536 U.S. at 321, the United States Supreme Court held the death
penalty was not suitable punishment for a criminal who is intellectually disabled. In reaching
that conclusion, the Atkins court noted people who are intellectually disabled have “diminished
capacities to understand and process information, to communicate, to abstract from mistakes and
learn from experience, to engage in logical reasoning, to control impulses, and to understand the
reactions of others.” Atkins, 536 U.S. at 318.
¶ 29 Miller is part of a line of United State Supreme Court cases addressing the
applicability of the eighth amendment’s ban on “cruel and unusual punishments” (U.S. Const.,
amend. VIII) to sentencing juveniles. In Miller, 567 U.S. at 489, the United States Supreme
Court found a sentencing scheme that mandated life in prison without the possibility of parole
for juvenile offenders (those under the age of 18), including those convicted of homicide,
violated the “principle of proportionality,” and thus the eighth amendment’s ban on cruel and
unusual punishment. The Miller Court did not foreclose sentencing a juvenile convicted of
- 11 - homicide to life in prison, but it emphasized the judge or jury must have the opportunity to
consider mitigating factors before imposing the harshest possible penalty on a juvenile. Miller,
567 U.S. at 489. Specifically, the Miller Court explained a sentencing court must consider how
children are different from adult offenders for purposes of sentencing and the offender’s youth
and attendant characteristics before imposing life imprisonment without the possibility of parole
on a juvenile offender. Miller, 567 U.S. at 480, 483.
¶ 30 The Illinois Supreme Court has held “Miller applies to discretionary sentences of
life without parole for juvenile defendants.” People v. Holman, 2017 IL 120655, ¶ 40, 91 N.E.3d
849. Our supreme court has further extended Miller to a juvenile defendant’s mandatory term of
years that was the functional equivalent of life without the possibility of parole (de facto life
sentence). People v. Reyes, 2016 IL 119271, ¶¶ 9-10, 63 N.E.3d 884. It later defined a de facto
life sentence by declaring “a prison sentence of 40 years or less imposed on a juvenile offender
does not constitute a de facto life sentence in violation of the eighth amendment.” People v.
Buffer, 2019 IL 122327, ¶ 41.
¶ 31 The aforementioned cases all involved juvenile defendants. The Illinois Supreme
Court has declined to extend Miller to all young adults under the age of 21, finding “the age of
18 marks the present line between juveniles and adults.” People v. Harris, 2018 IL 121932,
¶ 61, 120 N.E.3d 900. While the supreme court denied the young adult defendant’s facial
challenge to his aggregate sentence based on Miller, it did not foreclose an as-applied challenge
based on the reasoning of Miller for young adults. See Harris, 2018 IL 121932, ¶ 48.
¶ 32 As to the defendant’s as-applied constitutional challenge, the supreme court found
it was premature. Harris, 2018 IL 121932, ¶ 46. The supreme court noted the following:
“A court is not capable of making an as applied determination of
- 12 - unconstitutionality when there has been no evidentiary hearing and no findings of
fact. [Citation.] Without an evidentiary record, any finding that a statute is
unconstitutional as applied is premature.” (Internal quotation marks omitted.)
Harris, 2018 IL 121932, ¶ 39 (quoting People v. Rizzo, 2016 IL 118599, ¶ 26, 61
N.E.3d 92).
In Harris, 2018 IL 121932, ¶ 40, the defendant raised the issue for the first time on direct appeal.
“Thus, an evidentiary hearing was not held on his constitutional claim, and the trial court did not
make any findings of fact on defendant’s specific circumstances.” Harris, 2018 IL 121932, ¶ 40.
The court further noted that, because the defendant was an adult, Miller did not apply directly to
his circumstances, and thus the record had to be sufficiently developed to address the claim
Miller applied to the defendant’s particular circumstances. Harris, 2018 IL 121932, ¶ 45. The
supreme court had previously reached the same conclusion when a young adult defendant raised
an as-applied constitutional challenge to his sentence under Miller for the first time on appeal
from dismissal of a petition brought under section 2-1401 of the Code of Civil Procedure (735
ILCS 5/2-1401 (West 2010)). See People v. Thompson, 2015 IL 118151, ¶ 44, 43 N.E.3d 984.
¶ 33 While the supreme court concluded the defendant’s as-applied challenge was
premature, it pointed out the defendant’s claim could be brought in another proceeding. Harris,
2018 IL 121932, ¶ 48. Specifically, the defendant could raise his as-applied challenge under the
Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2016)), which “allows for raising
constitutional questions which, by their nature, depend[ ] upon facts not found in the record.”
(Internal quotations marks omitted.) Harris, 2018 IL 121932, ¶ 48 (quoting People v. Cherry,
2016 IL 118728, ¶ 33, 63 N.E.3d 871). Such a challenge “could also potentially be raised in a
petition seeking relief from a final judgment under section 2-1401 of the Code of Civil Procedure
- 13 - (735 ILCS 5/2-1401 (West 2016)).” Harris, 2018 IL 121932, ¶ 48.
¶ 34 As in Harris, defendant raises his as-applied constitutional claim for the first time
on direct appeal. Additionally, like the defendant in Harris, Miller does not directly apply to
defendant’s circumstances as he is an intellectually disabled adult and not a juvenile. Moreover,
in support of his argument, defendant cites the First District’s decision in People v. Coty, 2018
IL App (1st) 162383, ¶ 86, 110 N.E.3d 1105, appeal allowed, No. 123972 (Ill. Jan. 31, 2019),
where it concluded the intellectually disabled defendant’s 50-year de facto life sentence without
the procedural safeguards of Atkins, Miller, and progeny violated the proportionate penalties
clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 11). There, the intellectually disabled
defendant raised his proportionate penalties argument in his motion to reduce his sentence. Coty,
2018 IL App (1st) 162383, ¶ 57. Since defendant raises his as-applied challenge for the first
time on direct appeal, we find defendant’s as-applied constitutional challenge is premature and
decline to address it.
¶ 35 III. CONCLUSION
¶ 36 For the reasons stated, we affirm the Woodford County circuit court’s judgment.
¶ 37 Affirmed.
- 14 -