NOTICE 2025 IL App (5th) 230406-U NOTICE Decision filed 12/12/25. The This order was filed under text of this decision may be NO. 5-23-0406 Supreme Court Rule 23 and is changed or corrected prior to not precedent except in the the filing of a Petition for IN THE limited circumstances allowed Rehearing or the disposition of under Rule 23(e)(1). the same. APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) White County. ) v. ) No. 22-CF-70 ) DANIEL W. LANNING, ) Honorable ) T. Scott Webb, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________
JUSTICE VAUGHAN delivered the judgment of the court. Justices Moore and Boie concurred in the judgment.
ORDER
¶1 Held: Defendant’s sentence is affirmed where the trial court did not consider improper factors in aggravation or fail to give sufficient weight to mitigating factors when it sentenced defendant.
¶2 Defendant, Daniel W. Lanning, appeals arguing that the trial court committed errors during
the sentencing hearing that require resentencing. For the following reasons, we affirm defendant’s
sentence.
¶3 I. BACKGROUND
¶4 On April 18, 2022, defendant was charged, by information, with four counts of criminal
sexual assault, in violation of section 11-1.20(a)(4) of the Criminal Code of 2012 (720 ILCS 5/11-
1.20(a)(4) (West 2020)). All four counts involved a juvenile, L.G., who was alleged to be over the
age of 13 but under the age of 18, and further alleged that defendant held a position of trust,
1 authority, and supervision over L.G. as a house parent at the Baptist Children’s Home and Family
Services (BCHFS) in Carmi, Illinois, and the incidents occurred between March 31, 2022, and
April 3, 2022. Count I alleged that defendant placed his fingers in L.G.’s vagina. Counts II and III
alleged that defendant placed his penis in L.G.’s mouth, and count IV alleged that defendant placed
his penis on L.G.’s vagina. At his first appearance, defendant stated he understood the charges and
possible penalties related thereto, admitted he was recently hired for a position in Florida similar
to what he had at BCHFS, and requested the appointment of counsel, which was granted.
¶5 On August 24, 2022, the State advised the court of an open plea in which defendant would
plead guilty to counts I and II with sentences ranging from 4 to 15 years on each count that were
mandatory consecutive. In exchange, the State would dismiss counts III and IV and not file
additional charges in relation to the victim or other investigations that were occurring at the state’s
attorney’s office. The trial court admonished defendant of the sentencing range and clarified that,
due to the mandatory consecutive running of the sentences, the minimum sentence would be 8
years with a maximum of 30 years to be served at 85% with mandatory supervised release (MSR)
set at 3 years to life. Defendant agreed that he understood. After further admonishments regarding
voluntariness of defendant’s plea and waiver of rights, the trial court asked the State to provide a
factual basis.
¶6 The State’s factual basis revealed that defendant worked as a house parent at BCHFS in
Carmi, Illinois, which was a home for children who had a troubled life and whose parents could
not currently care for their children. The State explained that a house parent was in charge of taking
the children to school, generally supervising their daily activities, and acting as parents and caring
for the children. The State advised the court that on April 10, 2022, Michelle Durham, an employee
with the Illinois Department of Children and Family Services, contacted White County Sheriff’s
2 Deputy Matt Wicker to speak about an adolescent being inappropriately touched by a worker at
the home. Deputy Wicker met with Durham, who stated that L.G., a 14-year-old resident at
BCHFS, reported being inappropriately touched by defendant, a house parent. During an
interview, L.G. disclosed that the incidents by defendant occurred on multiple occasions and in
multiple locations within BCHFS and at Social House (SH) between March 31, 2022, and April 3,
2022. L.G. stated that defendant hugged her, slapped her butt, placed his fingers in her vagina, and
placed his penis in her mouth at various times on those dates. Defendant was later interviewed by
Deputy Wicker at which time defendant admitted putting his fingers in L.G.’s vagina, putting his
penis in her mouth, putting his penis on her vagina, and that L.G. put her hands on defendant’s
penis while they were in various rooms at the BCHFS and SH. The court found a factual basis
existed and ordered a sex offender evaluation and a presentence investigation and report (PSI).
¶7 The sex offender evaluation report, prepared by Daniel A. Selock, was filed on October
24, 2022. The report noted defendant’s convictions for two sexual offenses and that he was a 41-
year-old who previously worked as a house parent at BCHFS. Selock’s report noted statements
from L.G. to the Guardian Center interviewer about the incidents revealing that: (1) L.G. did not
trust defendant initially; (2) defendant would hug L.G. for no apparent reason; (3) after a few hugs
and saying, “this is just what you needed,” defendant smacked L.G.’s butt and squeezed it;
(4) defendant kissed L.G. on the lips; (5) defendant moved L.G. away from security camera range
at BCHFS and put his finger in L.G.’s vagina for about 10 minutes; (6) defendant pulled his pants
down, took L.G.’s hand, and placed it on his penis to “jerk him off for 5-7 minutes”; (7) defendant
fingered L.G.’s vagina and anus, and would squeeze and smack her butt; (8) defendant made L.G.
suck his penis; (9) defendant would punish L.G. by having her suck his penis until she gagged;
(10) defendant would ejaculate in L.G.’s mouth and she swallowed it; (11) defendant held L.G.
3 against the wall with her hands up, smacked her breasts and sucked them; (12) when L.G. refused
to suck his penis or jerk him off, defendant said “at least watch me come”; (13) defendant told
L.G. she was beautiful; (14) defendant rubbed L.G.’s clitoris with his penis but did not penetrate
L.G.’s vagina; (15) L.G. stated she had no injuries or bleeding; and (16) defendant never used a
condom.
¶8 Selock’s report listed the other documents he reviewed, testing performed on defendant,
and defendant’s statements during his interview with Selock. During the interview, defendant
explained that on the first day of the incidents, L.G. wrapped her arms around him and gave him a
big hug. He stated that over a four-day span, L.G. asked him to touch her by rubbing her breasts
and butt and fingering her vagina. She also asked him to masturbate in front of her and let her play
with his penis by rubbing it and putting it in her mouth. He explained his actions by stating he
simply “gave in to the temptations” of L.G.’s requests. He stated that L.G. asked him to make her
“feel like my cousin made me feel” and while he did not know what her cousin did to her, L.G.
guided the sexual behavior and defendant just “went along with what she wanted.” Selock asked
defendant if he was the actual victim, and defendant said yes, he was the victim.
¶9 During the interview, defendant admitted knowing the age of consent in Illinois was 18
and further stated that he felt guilty about having sex with a 14-year-old and “should not have
given into the temptations.” He stated that his first feeling of accountability was when he told his
wife and she told him, “You should not have done that.” Thereafter, defendant and his wife
traveled to Florida to interview for jobs, for which they were hired. Defendant blamed himself for
the sexual offenses and regretted his actions. When asked about the effect on L.G., defendant
stated, “I am sure it added more trauma to her life, even though she asked for it. I damaged her
4 soul because I opened an old wound of hers made by her cousin.” When asked to clarify, defendant
did not elaborate.
¶ 10 Selock’s report explained that criminogenic needs were characteristics, traits, problems, or
issues of any individual that directly related to that individual’s likelihood to reoffend. Selock
found that defendant displayed three criminogenic needs: (1) antisocial attitudes; (2) a history of
antisocial behavior, specifically noting defendant’s “disregard for the feelings of his victims and
rule of law pertaining to age of consent for sexual activities in Illinois”; and (3) “low self-control
around the minors” at BCHFS.
¶ 11 Selock did not recommend drug, alcohol, or mental health treatment based on scores from
defendant’s testing but did recommend treatment for depression. Defendant’s testing revealed
“distorted thought about rape and the feelings of females.” Based on the testing, Selock believed
defendant was a moderate level of risk to sexually reoffend. He felt that defendant “was predatory
on a young female with deviant motivations and wanted to exert power and control over her. He
appeared to be self-centered and acted from a position of authority.” Selock further noted that
defendant “denied taking responsibility for the sexual acts and was ambivalent with the truth, even
though he was the adult in the situation.” Selock recommended sex offender treatment, stated the
community would not be safe in defendant’s presence, and opined that defendant was likely to
reoffend without treatment. The report noted, inter alia, that defendant engaged in a sexual offense
with a person of unequal intelligence and emotionality, had a deviant sexual preference for sadism
(spanking), had three criminogenic needs, a low level of self-control, and used sex with a 14-year-
old female to cope with loneliness or stress. Selock also recommended a safety plan to prevent
defendant from being alone around children or minors because Selock felt defendant was unsafe
in their company without another adult present.
5 ¶ 12 Defendant’s PSI revealed no prior criminal history. Defendant was married but unsure of
the status of that marriage. His only debt was a 2012 vehicle. His employment prior to BCHFS
included working for Compact Family Services in Arkansas in 2019, as a custodian for the East
Peoria School District for two to three years, and a four-year internship at Teen Challenge. Other
employment included jobs at Casey’s General Store, Newell Furniture, and Hydrocam Industrial
Services. No physical or mental issues beyond diabetes and high blood pressure were reported and
those were controlled with medications.
¶ 13 The sentencing hearing was held on November 3, 2022. The parties agreed they reviewed
the PSI and defense counsel noted a few revisions that included a spelling error and updated the
court that the 2012 vehicle was sold, defendant received divorce papers from his wife and no longer
took omeprazole. The parties also agreed they reviewed the sexual evaluation report. Defendant
disputed saying he was a victim during the interview. The court noted the claim but stated that
since Selock could not be cross-examined, the court would not amend the report.
¶ 14 The State called Sheriff’s Deputy Matt Wicker to testify about his interviews with L.G.
and defendant. He stated that during L.G.’s interview, she was both “timid and forthcoming with
information.” L.G. told Deputy Wicker that the first incident occurred at the Ballard Cottage on
March 31, 2022, when defendant slapped L.G. on her butt and then inserted his finger in her vagina.
Other incidents occurred on April 1, 2022, through April 3, 2022, in multiple places throughout
the home, including the basement, gym kitchen, and SH loft. All incidents were off camera because
there were no cameras in those locations. L.G. told Deputy Wicker that defendant would force her
to give him “blow jobs,” ejaculated a few times, spanked her, put his finger in her vagina, and put
his penis on her vagina. L.G. relayed to Deputy Wicker that she felt it was easier for defendant to
6 do this to her than to other girls. The officer stated that L.G. never indicated that she initiated the
acts.
¶ 15 Deputy Wicker also interviewed defendant, and defendant described his feelings toward
spanking as “more of a fetish and feeling of power and control.” According to Deputy Wicker, the
interview statements from defendant and L.G. were “pretty consistent” regarding the different acts,
places, and times. The only difference was that defendant stated that L.G. initiated the incidents
by coming on to him. The officer stated that defendant admitted to the sexual acts on every day
between March 31 to April 3, 2022, was open and forthcoming during the interview, and
acknowledged his behavior. Deputy Wicker clarified that defendant never put his penis in L.G.’s
vagina; he only put his penis on L.G.’s vagina. He also confirmed that L.G. was not physically
harmed or physically injured from these incidents.
¶ 16 The State also called White County Sheriff Sergeant Justin Spencer. Sergeant Spencer
testified to participating in 10 interviews with seven different female juvenile residents of BCHFS,
four of whom disclosed information significant to the investigation. He discussed K.B., who was
around 13 years old and stated that defendant made her uncomfortable when he touched her arms
and shoulders, held her hand, and picked her up. K.B. alleged that, at some unknown time,
defendant threatened to “beat the shit out of her.” Sergeant Spencer also addressed E.H., who was
13 or 14 years old and said defendant spanked her twice as a form of punishment. Sergeant Spencer
stated that E.H. told him that defendant gave the option of being disciplined through either
spanking or grounding and she chose to be spanked. Sergeant Spencer also testified about S.H.,
who was 14 years old and told him that one time defendant walked up and “smacked her butt.”
S.H. further revealed that defendant made sexual jokes and references. One time, defendant said,
“you like that white stuff,” which S.H. thought was a reference to semen. Another time, defendant
7 stated, “you know you like to have your hair pulled.” Finally, Sergeant Spencer discussed O.J.,
who was 12 years old and said that defendant spanked her twice. She told the officer that she told
defendant not to touch her and he apologized. After the second time, O.J. struck defendant’s hand
and told him to stop. Defendant told her that she was not allowed to strike him and threatened to
harm her if she disclosed that information. None of the girls reported being physically harmed or
having physical injuries after these incidents.
¶ 17 Defendant’s father testified in mitigation. He explained that defendant was a “normal
child,” never had any problems, and had no trouble in school. Defendant’s father observed
defendant and his wife of 13 years together often and they appeared to have a good marital
relationship. In speaking with his son during the pendency of the case, he stated that defendant
expressed remorse. Defendant’s father stated that his son seemed serious about making changes in
his life and wanted to move back to Missouri to help his father on the farm.
¶ 18 The State sought a 13-year sentence on each count. The State argued that this was a very
serious matter because it involved someone in a parental position to a vulnerable child. The State
urged the court to look at defendant’s actions because the series of these actions made it appear as
if defendant was constantly putting himself in a position to seek prey. The prosecutor argued that
the sex offender evaluation indicated defendant was “constantly” saying he “gave into temptation,”
“she initiated” the actions, and that defendant was really the victim because “she led me down this
road.” The State suggested that defendant did not think the victim would ever speak out, and further
suggested defendant was grooming other children.
¶ 19 The State pronounced that, “[a]side from murder, this is about as serious as it gets.” The
State noted defendant’s lack of childhood trauma and stated this made the situation “pure evil
behavior from him himself.” The sex offender evaluation showed defendant had low self-control,
8 that slapping butts was a form of sadism, and defendant was blaming the victim. Although
defendant did apologize, it could not be said that defendant took full responsibility when he
continued to assert that L.G. was the initiator of these acts. The State also characterized the fact
that defendant knew L.G. was previously abused by her cousin as “mak[ing] it even worse.” The
State also referenced the conclusion that defendant was classified as a moderate risk to reoffend,
and treatment was necessary for defendant to be safe in the community. As far as statutory factors
in aggravation, the State argued that defendant’s conduct caused or threatened serious harm and
that the sentence was necessary to deter others.
¶ 20 In response, defense counsel agreed this was a very serious case, but noted defendant was
remorseful for his actions and understood that he needed to change. Defense counsel pointed out
misstatements by the State, one being that defendant’s behavior of spanking was grooming
behavior and used language like “grabbing butts” because that sounded worse than slapping butts.
Defense counsel disputed that defendant had not taken responsibility or acknowledged what he did
was wrong. Counsel noted that the State referenced portions of the sex offender evaluation
regarding defendant’s lack of responsibility but argued that other portions of the evaluation
revealed that defendant was sorry for his actions. Counsel further noted that defendant took
responsibility for the actions when he spoke with Deputy Wicker. Counsel noted defendant was
scored as a low risk in most of the testing, but the evaluator placed him middle range because
defendant did not grasp the seriousness of the behavior, did not fully understand his role in the
incidents, and answered questions in a manner consistent with sexual offending myths.
¶ 21 Turning to statutory factors in mitigation, defense counsel argued that defendant’s conduct
did not cause or threaten to cause serious physical harm, although defendant recognized that his
conduct caused emotional damage and harm. Defense counsel noted that defendant had no criminal
9 history and argued that the conduct was the result of circumstances unlikely to occur again because
defendant would never be allowed to work with youth in the future, was remorseful, and was open
to treatment. Defense counsel noted the evaluator’s report recommended treatment at Big Muddy
River Correctional Center and agreed with the recommendation. Counsel asked the court to issue
the minimum sentence of eight years in prison, which would provide sufficient time for defendant
to complete the sex offender treatment programs at Big Muddy.
¶ 22 Following argument, defendant provided a statement in allocution in which he apologized
for the damage he did to L.G. and the others he hurt. He also asked for forgiveness. Defendant
stated that he was sorry for everything and wished he had never done it.
¶ 23 A victim impact statement from L.G. was read by victim advocate Candace Masterson.
The statement indicated that when L.G. first met defendant, she was suspicious of him and then
three weeks after L.G. arrived at BCHFS, she was sexually assaulted by defendant. When she
asked defendant “why her?” he stated that she “was the one who wanted it.” The statement
described L.G. being frightened and emotionally hurt. She stated she suffered panic attacks and
fits of rage when she thought about what happened. She described the incidents and places where
they occurred, noted that security cameras were in none of those places, and revealed that she only
told a different house parent after defendant and his wife left for Florida. The statement revealed
current issues with trusting people and paranoia that defendant would get out of jail and hurt her.
She expressed a desire for defendant to be permanently incarcerated so he could not hurt anyone
else.
¶ 24 In announcing its sentence, the court discussed the minimum sentence stating, “I think if
we look at the minimum, a minimum would be someone who doesn’t have a criminal history,”
which the court noted would fit defendant. The court further noted that the minimum would be
10 applicable to someone who was low risk, a victim whose age was closer to the age of majority,
noting the “gray line” between someone 13 years old and someone one month younger than 18,
and thought that was “pretty significant.” It explained that the age was a transitional time when
those juveniles were trying to figure out what it is like to become a man or woman and what boys
and girls liked about each other so “it’s a very difficult time.” The court stated that it viewed the
case as, “the closer we get to that 13, I think the more egregious the act is” and that it was in the
court’s discretion to view it that way. The court stated, “[T]he more egregious I see that because
that time frame is really critical to both boys and girls.” The court noted the victim was 14 years
and 10-11 months old at the time of the crimes, which was on the lower end of the spectrum, so it
took that fact into consideration.
¶ 25 The court also noted defendant’s supervisory role at BCHFS, stating defendant was not a
public-school official dealing with average ordinary children; instead, defendant was a parental
figure at a children’s home for at-risk kids who were already more vulnerable than most children.
The court emphasized, “[a]ll 14-year-old girls are vulnerable, but in this case, [L.G.] was extremely
vulnerable” and defendant should have been aware of that additional vulnerability. The court
considered those two factors as aggravating in addition to the statutory factors considered.
¶ 26 When turning to mitigation factors, the court briefly agreed that defendant’s conduct
neither caused nor threatened serious physical harm to another, but found there was “an incredibly
serious harm that’s at play here.” The court suggested that “in some ways these types of cases
[were] more serious than murders because she’s going to have to deal with this situation for the
rest of her life. *** You have forever seared that in her mind.” The court noted defendant had no
prior criminal history, which was “definitely a factor in mitigation.”
11 ¶ 27 The court agreed with the State’s argument that a sentence was necessary to deter others,
explaining again that defendant was entrusted to take care of the “most vulnerable” and “in some
trivial-type manner you ran around slapping little girls on the butt, finding yourself alone with little
girls.” The court doubted that being alone with the girls was “accidental” and stated that behavior
“cannot be tolerated in our society.” It noted that defense counsel predicted this would never
happen again, but the court stated, “I can only predict the future based upon what I’ve seen in the
past, and what I’m seeing in the most recent past isn’t very good on your behalf.”
¶ 28 The court acknowledged that defendant did take responsibility, but found his responsibility
limited. While defendant admitted that he should not have done what he did, the court noted that
defendant also said that L.G. “was kind of in this too.” The court stated that as a 40-year-old man,
defendant should have walked away no matter what actions, if any, she took first. The court noted
the evaluator had reservations saying defendant was low risk and the court agreed. It stated that it
should have been a time in L.G.’s life when she played with her friends, learned what it was like
to become a young woman, and “not to be molested by some deviant house parent at this place
where she goes to find help.” The court also noted defendant’s accountability as “yeah but,” rather
than taking full responsibility. In continuing to analyze defendant’s lack of responsibility, the court
stated that while defendant stood in court taking full responsibility similar statements were made
by other defendants. Thereafter, the court sentenced defendant to 11 years in prison on each count
with 3 years to life MSR.
¶ 29 On November 4, 2022, defendant sent correspondence to the trial court requesting to
withdraw his guilty plea and go to trial claiming ineffective assistance of counsel. Defendant also
sent correspondence dated November 11, 2022, requesting a reduction in his sentence. The
reduction in sentence correspondence clarified that defendant was no longer requesting to
12 withdraw his guilty plea. Both requests were filed on November 21, 2022. New counsel was
appointed to assist defendant because his previous counsel, Shinkle, no longer worked in White
County.
¶ 30 Postsentencing counsel filed an amended motion to reduce sentence. Counsel argued that
the sentence was excessive for someone with no criminal history. The amended motion further
contended that the court’s consideration of the victim’s age and defendant’s position as a house
parent was improper double enhancement.
¶ 31 A hearing on the postsentencing motion was held on June 5, 2023. Counsel formally
withdrew defendant’s motion to withdraw his guilty plea and stated it would be proceeding solely
on the amended motion to reduce sentence. Counsel’s argument mirrored the amended motion. In
response to the improper double enhancement argument, the State relied on People v. Saldivar,
113 Ill. 2d 256, 269 (1986), that stated, “Certain criminal conduct may warrant a harsher penalty
than other conduct, even though both are technically punishable under the same statute.”
According to the State, “sliding scale” determines the sentencing for a specific case under specific
circumstances. The State then summarized the factors that the court considered in determining
where defendant landed on its sliding scale, including: (1) defendant’s lack of criminal history,
(2) defendant being moderate risk of reoffending, and (3) L.G.’s age placing her at the younger
end of the spectrum. The State also argued that defendant’s position of being a house parent in
charge of a 14-year-old girl’s care was more egregious than a manager of an underage employee
at a McDonald’s. Finally, the State argued that the court’s consideration of the victim being
“extremely vulnerable” was a relevant aggravating factor.
¶ 32 The court noted that it had discretion within the 4- to 15-year sentencing range and that it
was allowed to look at the individual circumstances of each case to determine a sentence within
13 that range. The court compared its consideration of the victim’s age and the type of supervisory
position to different severities of great bodily harm taken into account in other types of cases. With
respect to defendant’s criminal history, the court explained that defendant did not get the maximum
sentence because his criminal history “was rather sparse.” Turning to defendant’s “supervisory
role,” the court noted that these were “troubled young ladies,” and agreed with the State that this
situation was different than if defendant were a supervisor at McDonald’s. The court commented
that if defendant had been an ordinary guy on the street, he probably would not have gotten the
same sentence. The court also noted that, in that situation, the sentence would not be the same
because it would not be as high as a Class 1 felony. The court stated that it looked at all of the
circumstances of the offenses in addition to the evidence, believed that 11 years in prison for each
conviction was reasonable, and denied the motion to reduce defendant’s sentence. Defendant
appeals.
¶ 33 II. ANALYSIS
¶ 34 On appeal, defendant argues that the trial court’s 22-year sentence was excessive because
it considered improper factors in aggravation, including L.G.’s age, defendant’s parental role to
L.G., L.G.’s extremely vulnerable status, and the court’s personal beliefs about sex offenders.
Defendant further argues that the court did not sufficiently consider his acceptance of
responsibility, the low to moderate risk level classifications that he would reoffend, and
defendant’s lack of criminal history. Finally, defendant argues that his sentence was excessive
where the court failed to consider defendant’s lack of criminal history, likelihood of reoffending,
and his rehabilitative potential.
¶ 35 In addition to addressing the merits of defendant’s arguments, the State argues that
defendant’s arguments were twice forfeited: once when no objection was raised at sentencing, and
14 later, when they were not included in the postsentencing motion. Defendant disputes both
forfeitures, but requests, in the event the arguments were forfeited, second-prong plain error
review. We address the procedural issues first as they shape the boundaries of our review on
appeal.
¶ 36 It is well-settled that to preserve an issue for review, trial counsel must object at the time
of the error and include the issue in a posttrial motion. People v. Thompson, 238 Ill. 2d 598, 611
(2010) (citing People v. Enoch, 122 Ill. 2d 176, 186 (1988)). Failure to properly preserve an issue
“forfeits any review of the error.” People v. Jackson, 2022 IL 127256, ¶ 15. Here, no objections
were raised during the court’s proclamation of defendant’s sentence. As such, our first
consideration is whether defense counsel’s failure to object during the pronouncement of the
sentence precludes review of any issues that were raised in the postsentencing motion.
¶ 37 Defendant argues that any objection would have “ ‘fallen on deaf ears’ ” and therefore, any
objection during the court’s explanation of defendant’s sentence would be futile and potentially
prejudice the court against the defendant. See People v. Hanson, 238 Ill. 2d 74, 118 (2010) (quoting
People v. McLaurin, 235 Ill. 2d 478, 488 (2009)). While we disagree that objections during
sentencing always result in prejudice against the defendant, we find sufficient reasoning to
overlook the lack of any objection. See People v. Saldivar, 113 Ill. 2d 256, 266 (1986). In Saldivar,
the court specifically found that the issue was not forfeited because “it was not necessary for
counsel to interrupt the judge and point out that he was considering wrong factors in aggravation”
at sentencing. Id. As such, we follow the Saldivar court’s lead and find that the errors were not
forfeited due to a failure to object during the court’s pronouncement of sentence.
¶ 38 However, many of the alleged errors raised on appeal were not included in the
postsentencing motion either. These unmentioned arguments contend that: (1) the court
15 improperly considered the victim’s “extremely vulnerable” status as a factor in aggravation; (2) the
court improperly relied on its own personal beliefs about sex offenders in rendering the sentence;
(3) the court did not sufficiently consider defendant’s acceptance of responsibility; (4) the court
did not sufficiently consider the low to moderate risk levels related to defendant’s likelihood to
reoffend; and (5) the sentence was excessive where the court failed to consider defendant’s
rehabilitative potential, lack of criminal history, and risk assessment.
¶ 39 Forfeiture may be avoided if plain error review is requested. McLaurin, 235 Ill. 2d at 495;
see also Ill. S. Ct. R. 615(a) (eff. Jan. 1, 1967). The plain-error doctrine is a narrow and limited
exception that bypasses normal forfeiture principles and allows a reviewing court to consider
unpreserved error when either (1) the evidence is close, regardless of the seriousness of the error,
or (2) regardless of the closeness of the evidence, the error is serious, affected the fairness of
defendant’s trial, and challenged the integrity of the judicial process. People v. Allen, 222 Ill. 2d
340, 351 (2006) (citing People v. Herron, 215 Ill. 2d 167, 178-79 (2005)). The burden of
persuasion lies with the defendant under both prongs of plain error (People v. Lewis, 234 Ill. 2d
32, 43 (2009)) and failure to establish plain error requires a court to honor the procedural default.
People v. Bannister, 232 Ill. 2d 52, 65 (2008).
¶ 40 Usually, the first step in the plain error analysis is to determine whether error occurred.
People v. Lovejoy, 235 Ill. 2d 97, 148 (2009). However, defendant requested only second-prong
plain error review, which typically requires structural error. People v. Jackson, 2022 IL 127256,
¶ 28. A structural error requires automatic reversal if it renders a criminal trial fundamentally
unfair or unreliable in determining guilt or innocence. Id. Second-prong plain error is a high hurdle
and “errors that are reviewable under the second prong of the plain error rule are rare.” People v.
Johnson, 2024 IL 130191, ¶ 53. However, the burden becomes insurmountable when, as here, the
16 arguments raised are based solely on consideration of improper sentencing factors. Id. ¶ 92.
(holding that consideration of improper sentencing factors may not be reviewed under second-
prong plain error). As only second-prong error was alleged, and it is inapplicable to the issues
raised here but not before the trial court, we must honor the forfeiture as to claims of error listed
above.
¶ 41 This leaves three issues for consideration on appeal: (1) whether the court improperly
considered L.G.’s age as an aggravating factor when age is inherent in the offense; (2) whether the
court improperly considered defendant’s parental role to L.G. as an aggravating factor when
defendant’s status was inherent in the offense; and (3) whether the trial court failed to provide
sufficient weight to defendant’s lack of criminal history as a factor in mitigation.
¶ 42 A. The Victim’s Age
¶ 43 Defendant was charged with criminal sexual assault, in which the State alleged the victim
was at least 13 years of age and under 18 years of age, defendant was over 17 years of age, and
defendant held a position of trust, authority, or supervision in relation to the victim. See 720 ILCS
5/11-1.20(a)(4) (West 2020). He argues that the trial court improperly considered L.G.’s age as a
factor in aggravation which was improper double enhancement.
¶ 44 “A double enhancement occurs when either (1) a single factor is used both as an element
of an offense and as a basis for imposing a harsher sentence than might otherwise have been
imposed, or (2) the same factor is used twice to elevate the severity of the offense itself.” People
v. Guevara, 216 Ill. 2d 533, 545 (2005). “Generally, a factor implicit in the offense for which the
defendant has been convicted cannot be used as an aggravating factor in sentencing for that
offense, absent a clear legislative intent to accomplish that result.” People v. Ferguson, 132 Ill. 2d
86, 97 (1989). The reasoning for the double enhancement rule is “premised on the assumption that
17 the legislature considered the factors inherent in the offense in determining the appropriate range
of penalties for that offense.” People v. Rissley, 165 Ill. 2d 364, 390 (1995). We review complaints
of double enhancement de novo. People v. Phelps, 211 Ill. 2d 1, 12 (2004).
¶ 45 The preeminent case involving age and double enhancement is People v. White, 114 Ill. 2d
61 (1986). In White, the victim’s age was a statutory aggravating factor and therefore the victim’s
age could not form the basis for an extended-term sentence. Id. at 66. While White is
distinguishable here because L.G.’s age was not used to as the basis for an extended-term sentence,
we note the courts are split as to whether age, which is an inherent factor of the crime, can ever be
considered.
¶ 46 Some courts interpret White to extinguish any reliance on age of the victim as an
aggravating factor is improper where the age of the victim is an element of the offense. See People
v. Calva, 256 Ill. App. 3d 865, 874 (1993); People v. Donald, 222 Ill. App. 3d 794, 802 (1991);
People v. Edwards, 224 Ill. App. 3d 1017, 1033 (1992). Other courts found—based on the principle
that the court can consider the nature and circumstances of the offense, including the nature and
extent of each element of the offense—that the court can consider the specific age of the victim as
a nature of the case. See People v. Spicer, 379 Ill. App. 3d 441, 468 (2007); People v. Thurmond,
317 Ill. App. 3d 1133, 1144-45 (2000); People v. Raney, 2014 IL App (4th) 130551, ¶ 37; People
v. Wyatt, 186 Ill. App. 3d 772, 780 (1989).
¶ 47 Upon review of the case law, we find the latter more persuasive. This court has also
followed the latter path in the past. See People v. Newlin, 2014 IL App (5th) 120518, ¶ 22 (“a trial
court may consider the nature and circumstances of an offense, including the nature and extent of
each element of the offense as committed by the defendant”); People v. Sutton, 2022 IL App (5th)
190160-U, ¶ 37. Further, the Illinois Supreme Court has long held that consideration of the degree
18 of harm, even where serious bodily harm is arguably implicit in the offense, is allowed. See
Saldivar, 113 Ill. 2d at 269. Saldivar also confirmed allowance to consider the seriousness, nature,
and circumstances of the offense along with the nature and extent of each element of the offense.
Id. at 268-69.
¶ 48 “The rule that a court may not consider a factor inherent in the offense is not meant to be
applied rigidly, because sound public policy dictates that a sentence be varied in accordance with
the circumstances of the offense.” People v. Cain, 221 Ill. App. 3d 574, 575 (1991). A sentencing
court may consider “whether the victim is particularly young” even if the victim’s age is an element
of the sexual assault count for which defendant was convicted. Thurmond, 317 Ill. App. 3d at 1144.
In Thurmond, the victim was a 12-year-old girl who was removed from her mother by the Illinois
Department of Children and Family Services and was living with her aunt. Id. at 1136. The aunt’s
husband was the defendant. Id. In reviewing the defendant’s claim that the trial court erred by
considering the victim’s age because it was an element of the charge, the Thurmond court noted,
“there is a difference between being under age 18 and being significantly under age 18” as well as
a difference between “being a family member and being a father.” Id. at 1144. The court provided
an example which found that “an act of sexual penetration on a 17-year-old family member is
reprehensible ***, [but] an act of sexual penetration on a 7-year-old family member is even more
reprehensible.” Id.
¶ 49 Here, and similarly to Thurmond, the trial court noted that L.G. was almost 15 and therefore
was on the lower end of the age range delineated by the statute. The court also noted the wide
discrepancy between L.G.’s age and defendant’s age of 41. We cannot find that the trial court’s
consideration of where L.G. personally landed on the statutory spectrum, or the difference between
L.G.’s age and defendant’s age, to fashion an appropriate sentence was erroneous.
19 ¶ 50 B. Defendant’s Authority Over L.G.
¶ 51 Defendant raises a similar claim of double enhancement based on the trial court’s
comments about defendant’s authority over L.G. We again note that the Illinois Supreme Court
has long held that consideration of the degree of harm, as well as the seriousness, nature, and
circumstances of the offense, including the nature and extent of each element of the offense, is
allowed. Saldivar, 113 Ill. 2d at 268-69.
¶ 52 It is undisputed that defendant’s authority over L.G. was an element of the crime for which
defendant was convicted. Here, the court commented that defendant’s authority as a house parent
over L.G. was substantially different from other relationships between juveniles and adults, even
referencing that of a teacher and a student, as well as a juvenile and supervisor relationship. We
believe the court’s statements are consideration of the circumstances of the offense. While the
evidence failed to reveal the exact reason why L.G. was placed at BCHFS, defendant’s statements
during the sex offender evaluation provide insight into L.G.’s past.
¶ 53 Defendant reported to Selock that L.G. asked defendant to make her “feel like my cousin
made me feel.” Defendant told Selock that “he did not know what her cousin did to her[,] so he let
her tell him what to do” and “she guided their sexual behaviors.” Defendant apprised Selock that
L.G. “asked” him to “touch her by rubbing her breasts and butt; to finger her vagina, for him to
masturbate in front of her, for her to play with his penis, and to rub it and put it in her mouth.”
Defendant stated that “he just went along with what she wanted.”
¶ 54 Defendant’s statements allow this court, as well as the trial court, to infer that previous
instances of sexual abuse occurred to L.G., regardless of whether that was the basis of her residence
at BCHFS. However, an inference is unnecessary because defendant specifically acknowledged
that his action created “more trauma” (emphasis added) for L.G. because he “opened an old wound
20 of hers made by her cousin.” As such, defendant as a house parent at BCHFS was aware of L.G.’s
past circumstances and, despite this knowledge, continued to sexually abuse L.G. multiple times
over a four-day period.
¶ 55 The evidence also revealed that defendant’s position at BCHFS provided him with
knowledge of where the security cameras were placed at BCHFS to avoid discovery of his acts
against L.G. Additional evidence revealed that defendant’s position at BCHFS provided him with
information as to when L.G. would leave her room, and authority to direct the behavior and actions
of other children, and to discipline children through “spanking” who failed to follow his directives.
¶ 56 We cannot find that the trial court’s statements were anything more than notations of the
evidence revealing defendant’s dominance over L.G., as well over the other children at BCHFS,
all of whom may have been more vulnerable simply by living at BCHFS. L.G.’s vulnerability,
from the past experience with her cousin, was more than sufficient to support the trial court’s
assessment. Further, vulnerability is not an element of the crime. Therefore, we cannot hold that
the trial court’s remarks about the context of defendant’s authority over L.G. were erroneous or
improper considerations of an element of the crime.
¶ 57 C. Defendant’s Lack of Criminal History
¶ 58 Finally, defendant contends the trial court erred by failing to place sufficient weight on
defendant’s lack of criminal history. A trial court’s sentencing decision will not be disturbed absent
an abuse of discretion. People v. Stacey, 193 Ill. 2d 203, 208-09 (2000). An abuse of discretion is
found where the sentencing court’s “ruling is arbitrary, fanciful, unreasonable, or where no
reasonable person would take the view adopted by the trial court.” People v. Hall, 195 Ill. 2d 1, 20
(2000).
21 ¶ 59 Here, the record is replete with the court’s acknowledgment of defendant’s lack of any
criminal history. In fact, the court went so far to say that such mitigating evidence would usually
put a defendant in the lower end of the required sentencing range. However, even if the court had
not specifically mentioned defendant’s lack of criminal history, “if mitigating evidence is
presented at the sentencing hearing, a reviewing court presumes the trial court took that evidence
into consideration” absent evidence to the contrary. People v. Etherton, 2017 IL App (5th) 140427,
¶ 29. No evidence to the contrary is presented here. A trial court must base its sentencing on the
particular circumstances of each case. People v. Harmon, 2015 IL App (1st) 122345, ¶ 123. A
court should also consider “defendant’s credibility, demeanor, general moral character, mentality,
social environment, habits, and age.” Id.
¶ 60 Defendant’s argument also ignores that the most important sentencing factor is the
seriousness of the offense and that the presence of mitigating factors does not require a minimum
sentence or preclude the court from imposing the maximum sentence. People v. Contursi, 2019 IL
App (1st) 162894, ¶ 25. The trial court twice considered defendant’s lack of criminal history as a
factor in mitigation. However, the trial court also considered defendant’s demeanor, and general
moral character. The court considered defendant’s statement of responsibility and remorse but felt
that defendant’s responsibility “only goes so far” and further referenced it as a “yeah, but.” The
court also noted that defendant admitted he performed the acts but indicated L.G. “was kind of in
this too.” A trial court is allowed to rely upon defendant’s lack of remorse at sentencing. People v.
Cross, 2021 IL App (4th) 190114, ¶ 144.
¶ 61 The court also considered defendant’s moral character and the risk of reoffending, stating,
“She’s a girl; 14 years old. I don’t care if she rips your clothes off, which she did not do. You’re a
man; 40 years old. You walk away. What part of that do you not understand?” Contrary to
22 defendant’s contentions, the trial court considered defendant’s lack of criminal history; however,
the court considered other evidence submitted at sentencing that it believed outweighed
defendant’s lack of criminal history, which was within the court’s province. See People v.
Markiewicz, 246 Ill. App. 3d 31, 55 (1993) (a court may not disregard mitigating evidence but
does determine the weight to attribute to such evidence). The weight to place on that evidence is
at the discretion of the trial court. Stacey, 193 Ill. 2d at 209. This court will not reweigh the
evidence. Id. Here, we cannot find that it was an abuse of discretion for the trial court to afford
less weight to defendant’s lack of a criminal history and give greater weight to the other evidence
presented at sentencing.
¶ 62 III. CONCLUSION
¶ 63 For the above-stated reasons, we affirm defendant’s 22-year sentence imposed by the trial
court.
¶ 64 Affirmed.