2021 IL App (1st) 172478-U
FIRST DIVISION July 26, 2021
No. 1-17-2478
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County ) v. ) No. 13 CR 6768 ) ) JAMES ROMAINE, ) Honorable ) Frank Zelezinski, Defendant-Appellant. ) Judge Presiding. ______________________________________________________________________________
JUSTICE PIERCE delivered the judgment of the court. Justice Coghlan concurred in the judgment. Justice Hyman specially concurred.
ORDER
¶1 Held: Defendant was proven guilty beyond a reasonable doubt. The offenses did not occur as part of a single course of conduct, so his consecutive sentences are proper. His sentence is not excessive and does not violate the eighth amendment or the proportionate penalties clause.
¶2 Defendant, James Romaine, was convicted of nine counts of aggravated criminal sexual
assault, one count of armed robbery, and two counts of aggravated kidnapping following a bench
trial. On appeal, he argues: (1) the State failed to prove him guilty beyond a reasonable doubt;
(2) the offenses he was convicted of occurred as part of a single course of conduct with no 1-17-2478
substantial change in the criminal objective and, therefore, the consecutive sentencing statute’s
limitation on aggregate terms applies; (3) his sentence violates the eighth amendment and the
proportionate penalties clause; (4) his sentence is excessive; and (5) his convictions for
aggravated kidnapping violate the one act, one crime rule. For the following reasons, we affirm
the judgment of the trial court.
¶3 BACKGROUND
¶4 On March 28, 2013, defendant and co-defendant Cedric Chambers 1, were charged with
aggravated criminal sexual assault, home invasion, armed robbery and aggravated kidnapping.
The State went to trial on nine counts of aggravated criminal sexual assault, one count of armed
robbery, and two counts of aggravated kidnapping. Following a bench trial, the court found the
defendant guilty on all counts. Judge Zelezinski sentenced defendant to consecutive 12-year
terms on each aggravated criminal sexual assault count, a concurrent 12-year term for armed
robbery, a concurrent 12-year term on one of the aggravated kidnapping counts, and 18 years on
the other aggravated kidnapping count, consecutive to the aggravated criminal sexual assault
counts, for a total of 126 years’ imprisonment. On August 2, 2017, the Honorable Carl Boyd
presided over a hearing on defendant’s motion to reconsider his sentence. Judge Boyd
resentenced defendant to consecutive 7-year terms on each aggravated criminal sexual assault
count, which totaled 70 years. Defendant appealed.
¶5 The evidence at trial established that on February 28, 2013, at approximately 9:00 p.m.,
F.J. returned to her home in Park Forest, Illinois, after work. She parked her car in her car port
next to her home and walked to the side door of her house. She immediately noticed that her
1 Cedric Chambers is not a party to this appeal. Prior to defendant’s trial, Chambers pled guilty to aggravated criminal sexual assault in exchange for an 18-year sentence. He testified at defendant’s trial.
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back-porch door was open and left her keys in the side door to investigate. As she walked
towards the open door, she noticed that her cabinets and drawers in the adjacent kitchen were
open.
¶6 F.J. walked into the kitchen and could see two silhouettes in the dark living room. She
noticed that part of her front door was open, but the storm door was closed. F.J. thought if she
yelled loudly, she would scare the people out the front door of her house. But instead of running
away, the two figures rushed towards her. F.J. testified that she thought the taller individual was
holding the gun and he raised it and pointed it at her with his finger on the trigger as he quickly
rushed towards her. Within seconds she was forced face down on her kitchen floor.
¶7 F.J. testified that the men were very careful not to let her see their faces. She could only
establish that these two individuals were black males, that one was taller, and one was shorter,
and that based on their physique, they were not over the age of thirty. They repeatedly told her
that if she looked at their faces, they would harm her or kill her. Throughout the entire time she
was with the offenders, she was forcibly held down, with her head below her waist. As such, F.J.
was only ever able to see the offenders’ bodies.
¶8 As she lay face down on her kitchen floor, the two men went through her purse and bags
looking for money. They threatened her. F.J. testified that the taller of the two men was mostly
the one who talked and told her that “this is going to get worse for you we know you have the
money.” As she lay on the kitchen floor, one of the offenders hit F.J. on the right side of her face
with his hand but believed there was something in his hand when he hit her. She believed it was
the taller offender who hit her. She was hit a couple of times, but lost count of how many times.
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F .J. testified that the taller offender was clearly in charge as he made all of the decisions, all of
the plans and did all of the talking.
¶9 The men demanded her money and F.J. them that she did not have any cash on her. She
offered to give them her wallet. They told F.J. things were going to get worse for her. They
told her to take her pants off and F.J. did what the offenders demanded. The offenders held F.J.
on the floor as she was lying on her stomach. They stood behind and over her and repeatedly
assaulted her by forcing their fingers inside of her vagina. F.J. believed that the men traded
places while assaulting her with their fingers but could not see because her face was held to the
floor. They continually demanded money and accused her of “holding out on them.” After
approximately ten minutes, F.J. was forced, by her hair, down the hallway and into her bedroom.
¶ 10 Once in her bedroom, the men bent her over her bed with her feet remaining on the
ground and her face in the mattress. She was naked from the waist down. The shorter man
positioned himself in front of her with his knees on the bed and his penis in F.J.’s face and forced
F.J. to give him oral sex. As she was giving oral sex, the taller man was behind F.J. attempting to
vaginally rape her with his penis. F.J. testified that this “went on over and over with the guy in
front forcing his penis in [her] mouth and the guy in back ramming [me] from behind.”
Eventually, the two men switched places. F.J. testified that as she was being “tortured,” she was
trying to pull herself away and was pretending to be somewhere else.
¶ 11 When they were finished, the men took her back into the kitchen and continued to ask
about money. F.J. told the men to take anything they wanted. The men wanted her to go in a
car and she asked them if she could put her pants back on because it was cold outside, which
they allowed. The men got F.J.’s keys from the side door where she had left them after first
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entering. The offenders also gathered F.J.’s laptop with a memory stick, cell phone, I-Pad, I-Pod,
wallet and purse.
¶ 12 F.J. was forced to leave her house through the front door. Although she did not see the
gun, she felt something hard at her back. One of the offenders was always holding onto F.J. or
pushing her down to prevent her from standing up straight. They “shoved” F.J. in the back
passenger door of her car. The shorter offender got in the back seat with F.J. and the taller
offender got into the driver’s seat. Her head was held down and her face was on the car seat.
One of the men continued to tell her that things were going to get worse for her and that they
knew she had money.
¶ 13 The men drove F.J. around, stopping multiple times, for approximately thirty or forty
minutes. When they stopped the first time, they demanded the PIN to her credit cards. F.J.
testified that she may have given them cards that did not work, or the wrong PIN to an expired
card, and this made them angry. F.J. testified that she was not trying to trick them, but she was
stressed. She thought if she cooperated and gave them money, they would stop hurting her. They
went through bank ATMs, a convenience store, a gas station and a liquor store. The taller
offender made F.J. think that she was not being cooperative by telling her it was only going to
get worse if she did not cooperate. They also made her think they were not getting any money;
however, she learned later that they did get money from her account. Throughout the time in the
car, the taller man encouraged the shorter offender to periodically force F.J. to perform oral sex
on him in the back seat. This occurred more than three times, to the point she could not breath
and she felt like she was suffocating.
¶ 14 The second to last time the car stopped F.J. thought they were back in Park Forest
because the house’s roof tops looked familiar. She was held down, as the taller offender got out
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of the front, opened the passenger door, and pushed F.J. over. The taller man was on F.J.’s right
side and the shorter man was on her left. F.J. was forced to perform oral sex on the shorter
offender and the taller man pulled F.J.’s pants down and made contact with his penis to F.J.’s
vagina. The men then forced F.J. to turn around so that she was then forced to have the taller
offender’s penis in her mouth while the shorter offender vaginally raped her with his penis. F.J.
testified that that this “was the roughest, longest duration of the sexual assault, and it was both of
them.”
¶ 15 The taller offender got back in the driver’s seat and drove the car a few blocks, before
stopping again. The men made F.J. crouch down on the floor of the backseat, with her knees on
the floor. The shorter offender then got out of the car while the taller offender stayed in the front
seat, “fussing” with the steering wheel and the dashboard. He eventually got out of the car. F.J.
heard them talking on the sidewalk before she heard a car door slam and drive away.
¶ 16 F.J. testified that she stayed in the car for a while, but eventually became brave enough to
look out of the window. She recognized that she was a few blocks away from her house. The
keys to her car were gone, so she got out of the car and started running towards her house. As she
was running, she saw a police car with its lights on, and as she approached her house, she saw
police officers and her neighbor outside.
¶ 17 F.J. was taken by ambulance to St. James Hospital where a sexual assault kit was
completed, and her clothing was collected. F.J. suffered a black eye, red marks to the right side
of her face and her face was swollen as a result of being beaten. In addition to the injuries to her
face, she also had severe back pain from being forced to the ground in the kitchen and from
being bent over and held down.
¶ 18 Co-defendant Cedric Chambers testified defendant picked Chambers up in defendant’s
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car on the day of the offense. As Chambers approached the car, defendant told Chambers to go
back inside and get a “hoody,” which he did. They drove to defendant’s house and defendant
went inside and came back with a BB gun. They drove a few blocks before defendant told
Chambers to “follow him” because they were going to “go on a stain.” Chambers understood that
to mean they were going to rob someone. Defendant had the BB gun with him. They jumped
over some fences and defendant stopped at a house with a sunroom. Chambers did not know
who lived at the house. Defendant opened the door by breaking the glass and reaching in and
unlocking the lock. Chambers followed him inside. Defendant took a butcher knife from inside
the house and gave it to Chambers. Chambers testified that he put the knife down on the kitchen
counter before he went into the living room. He identified a photograph of the knife he had been
holding on the floor by the front door but testified that he did not remember how it ended up in
the living room.
¶ 19 Chambers testified that defendant went into one of the bedrooms while Chambers stayed
in the living room by the front door. Chambers heard a noise in the bedroom and, when he went
to check, he saw defendant inside the bedroom, which was in disarray with the mattress slid
partly off the bed and the drawers and a closet open. Defendant told Chambers that there was
nothing in the bedroom.
¶ 20 Chambers then went to the living room and saw a car in the driveway. He tried to get out
the front door, but as he started to turn the lock, a woman, F.J., walked through the kitchen with
two of her dogs. Chambers testified that defendant, who was standing with him in the living
room, raised and pointed the gun at F.J. and said, “don’t move.” Defendant went into the kitchen,
dumped F.J.’s purse out, and told Chambers to come into the kitchen. Defendant had F.J.’s
laptop, and he gave Chambers F.J.’s tablet and iPhone from F.J.’s purse. Defendant also took
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F.J.’s credit cards. He ordered F.J. to the ground and asked her for the PINs to her credit cards.
F.J. responded that “it was chipped.” Defendant then struck F.J. with his hands, punching her in
the face, while demanding her PIN’s.
¶ 21 Chambers testified that defendant told F.J. to pull her pants down as she lay on the
kitchen floor and when she did defendant put his fingers inside F.J.’s vagina. Defendant then told
Chambers to turn around, which he did. Chambers did not see what defendant did next to F.J.,
but he thinks defendant put his penis in her mouth. Chambers testified that he did not touch F.J.
while they were in the kitchen. When defendant finished, he told F.J. to get up and he led her to
her bedroom in a headlock with the gun to her head. Chambers followed them with F.J.’s laptop,
iPad and iPhone.
¶ 22 Chambers testified that defendant then took F.J. inside the bedroom and closed the door
halfway. Chambers could see defendant and F.J. inside of the room through the partly open
door. Defendant had F.J. bent over the end or side of the bed, with her feet on the floor. He saw
defendant take his penis out and put it inside F.J.’s vagina. Chambers testified that he was
looking around while he was in the hallway because he was “disgusted” by what he saw. About
two minutes later, defendant told Chambers to come inside. Defendant was still behind F.J. with
his penis in her vagina, “having sex” with her. Chambers testified that he did not want to go into
the bedroom, but defendant had a gun.
¶ 23 Chambers entered the bedroom and defendant commanded him “to get some head from
her,” so he inserted his penis into her mouth, as defendant was “having sex” with her from
behind. Defendant stopped and told F.J. to turn around. He again asked her for her PIN’s, and
she continued to reply that it was “chipped.” Defendant hit her in the face, arm and back.
Defendant told F.J. to give them both oral sex, but she only did it to defendant. Chambers stated
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that he and defendant did not switch places while they were in the bedroom.
¶ 24 Chambers then went to find the keys. When he returned to the living room, defendant
was holding F.J. in a headlock, bent over, with the gun pointed at her head. They left the house
and went to F.J.’s car. Chambers had F.J.’s iPad, cell phone and laptop. Defendant had all of her
credit cards. Defendant got in the front and Chambers got in the back with F.J. Chambers put the
gun in the back window.
¶ 25 Defendant first drove to a bank in Park Forest, and then to an ATM in Matteson.
Chambers did not remember if defendant withdrew any money on the first or the second stop. At
the third stop, defendant withdrew somewhere between $200 and $400 dollars using F.J.’s card.
Defendant gave some of that money to Chambers. They then went to a Shell gas station and a
liquor store where defendant went inside and came out with a fifth of Hennessey, which they
started to drink. Defendant told Chambers to “get some more head,” so he took his penis out and
put it into F.J.’s mouth as defendant drove F.J.’s car.
¶ 26 About a block later, defendant got in the backseat and inserted his penis into F.J.’s
vagina. Chambers stated that he put his penis in F.J.’s mouth, but he did not have an erection.
Defendant then told F.J. to turn around and Chambers touched his penis to her vagina, but he still
did not have an erection. F.J. was performing oral sex on defendant. After about two minutes,
defendant told Chambers to wait while he got the car. Defendant took the navigation system
from the car and four or five of F.J.’s credit cards and went to his car. Chambers collected the
gun, iPad, laptop and cell phone. Defendant told F.J. to lie down. Chambers testified that neither
he nor defendant wore a condom that night.
¶ 27 They stayed at Chambers’ house that night. They went to defendant’s house so he could
change his clothes. They stopped at a few locations, including two gas stations where defendant
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took out additional money. Defendant split the money with Chambers. They then went to
Walmart where they attempted to buy some televisions with F.J.’s credit cards, but they were
unsuccessful. While they were on their way to another store they were pulled over and arrested.
¶ 28 Chambers testified that he was sixteen years old and six feet tall at the time of the
offense. He was taller than defendant. Chambers viewed video footage from two banks and a
Shell gas station and testified that these were locations they went to while defendant was driving
F.J.’s car and while he was in the backseat with F.J., and he identified defendant outside of the
car in two of the videos. He also identified video surveillance from a Speedway gas station and
Walmart as the locations he and defendant went to prior to being arrested. He identified
defendant’s car in the Speedway video, and he identified himself and defendant entering and
exiting the Walmart.
¶ 29 Park Forest Department Deputy Chief Paul Finley testified that in February 2013, he was
Commander of the Investigation Unit and was one of the officers who arrested defendant.
Commander Finley stated that a custodial searched of defendant yielded a large amount of
United States Currency as well as a red iPod, which displayed F.J.’s first name when
Commander Finley powered it on at the police station. Commander Finley testified that
defendant was five feet, eleven inches when he was arrested.
¶ 30 Detective Kristopher Vallow testified that Chambers’ height was 5’10” when he was
arrested. Detective Vallow testified a search of Chambers’ house on March 2, 2013, yielded a
BB gun under a mattress in Chambers’ bedroom. Chambers identified this BB gun as the one
defendant used the night F.J. was assaulted.
¶ 31 The parties stipulated to the testimony of Registered Nurse Danyelle Hubbard’s
testimony. Hubbard testified that on March 1, 2013, she examined F.J. at St. James Hospital.
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Hubbard observed a one-half centimeter skin tear on F.J.’s vagina as well as bruising and
swelling around F.J.’s right eye and cheek.
¶ 32 Forensic scientist Jamie Jett was qualified as an expert in the field of microscopy and
testified that he received a black knit hat and black hooded sweatshirt, recovered from
defendant’s house, and that he collected hairs using a process called taping. Jett determined that
five hairs collected were Caucasian head hairs but was unable to determine further details from
the hairs. Mr. Jett prepared four hairs for further DNA testing.
¶ 33 Forensic biologist Katherine Sullivan was qualified as an expert in forensic biology and
DNA analysis. Sullivan testified that she received F.J.’s criminal sexual assault kit which
contained vaginal, anal and oral swabs, as well as paper and cloth items from the crime scene.
Sullivan did not identify any semen in those swabs or the items from the crime scene. She further
testified that she was not able to generate a DNA profile from the oral and vaginal swabs because
there was not enough male DNA. Sullivan was also unable to generate a DNA profile from F.J.’s
fingernail scrapings.
¶ 34 Sullivan also received four different hair portions that had been prepared for DNA
analysis by Jett. Sullivan generated DNA profiles from these items and determined that female
DNA from F.J. was a match to the DNA profile from these items.
¶ 35 At the conclusion of this evidence and after closing arguments, Judge Zelezinski found
defendant guilty of all counts, noting that F.J.’s testimony was “a story out of a horror novel.”
Judge Zelezinski sentenced defendant to an aggregate sentence of 126-years in prison.
¶ 36 On August 2, 2017, Judge Carl Boyd heard defendant’s motion to reconsider his
sentence. Judge Boyd read Judge Zelezinski’s sentencing transcript and found that the 126-year
sentence “is essentially the death penalty,” and he resentenced defendant as follows: 7 years on
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each count, with all counts of the aggravated criminal sexual assault charges and one count of
aggravated kidnapping running consecutive, and the remaining counts of aggravated kidnapping
and armed robbery running concurrently, for a total of 70 years. Defendant appealed.
¶ 37 ANALYSIS
¶ 38 Defendant argues that the State failed to prove beyond a reasonable doubt that F.J.
suffered bodily harm contemporaneous to the sexual assault as required by the aggravated
criminal sexual assault statute. As such, defendant urges, his five aggravated criminal sexual
assault convictions should be reduced to criminal sexual assault.
¶ 39 When reviewing the sufficiency of the evidence in a criminal case, we must determine
whether, after viewing the evidence in the light most favorable to the State, any rational trier of
fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 319 (1979); People v. Smith, 185 Ill. 2d 532, 541 (1999). We will not
reverse a criminal conviction unless the evidence is so unreasonable, improbable or unsatisfactory
as to create a reasonable doubt of the defendant’s guilt. People v. Rowell, 229 Ill. 2d 82, 98 (2008).
A reviewing court does not retry the defendant or substitute its judgment for that of the trier of fact
with regards to the credibility of witnesses or the weight to be given to each witness’ testimony.
People v. Jackson, 232 Ill. 2d 246, 281 (2009). Rather, we “carefully examine the evidence while
bearing in mind that the trier of fact is in the best position to judge the credibility of witnesses, and
due consideration must be given to the fact that the fact finder saw and heard the witnesses.”
People v. Herman, 407 Ill. App. 3d 688, 704 (2011).
¶ 40 To sustain a conviction for aggravated criminal sexual assault, the State was required to
prove defendant committed an act of sexual penetration through force or threat of force and during
the commission of the offense defendant caused bodily harm to the victim. 720 ILCS 5/11-1.30
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(a)(2) (West 2018). The term “bodily harm,” although difficult to precisely define, requires
physical pain or damage to the body, i.e., lacerations, bruises or abrasions, whether temporary or
permanent. People v. Mays, 91 Ill. 2d 251, 256 (1982). In determining whether a defendant's
actions caused bodily harm, the trier of fact may consider direct evidence of an injury and may
equally infer an injury based upon circumstantial evidence in light of common experience. People
v. Bishop, 218 Ill.2d 232, 250 (2006). The aggravated criminal sexual assault counts in this case
that were based on the alleged bodily harm of “str[iking] F.J. about the face.” Defendant argues
that the bodily harm suffered by F.J. was not committed during the offense. We disagree.
¶ 41 The evidence in this case clearly established that defendant caused F.J. bodily harm
during the commission of the sexual assault. F.J. testified at trial that defendant and Chambers
rushed at her in the kitchen and forced her to the floor. As she lay there, one of the two men
struck her in the face. She was hit several times. Defendant and Chambers demanded money
and then instructed her to take off her pants. They then held her down and repeatedly sexually
assaulted her with their fingers, while demanding money. After about ten minutes, defendant
and Chambers stood F.J. up, but kept her bent over, grabbed her by her hair and forced her down
the hallway to her bedroom. Chambers substantially corroborated F.J.’s testimony regarding
what occurred in the kitchen. He denied touching F.J. at that time. Chambers did testify that
once they were in F.J.’s bedroom, that defendant struck F.J. in her face, arm and back after
vaginally raping her but before he forced her to perform oral sex. The bodily harm suffered by
F.J. clearly occurred just prior to and during the sexual assault and was sufficiently close in time
to be considered during the course of the sexual assault.
¶ 42 Defendant next contends that the offenses he was convicted of occurred as part of a
single course of conduct with no substantial change in the criminal objective and, therefore, the
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consecutive sentencing statute’s limitation on aggregate terms applies. The State responds that as
an initial matter, defendant has forfeited any challenge that his sentence violated the sentencing
statute's aggregate maximum term and has not shown that this claim warrants plain error review.
We agree with the State.
¶ 43 “A defendant's challenge to the correctness of a sentence or to any aspect of the
sentencing hearing shall be made by a written motion filed with the circuit court clerk within 30
days following the imposition of sentence.” 730 ILCS 5/5-4.5-50(d) (West 2016). It is well
settled that to "to preserve a claim of sentencing error, both a contemporaneous objection and a
written postsentencing motion raising the issue are required." People v. Hillier, 237 Ill. 2d 539,
544 (2010). We therefore find defendant forfeited these issues.
¶ 44 Nonetheless, the defendant urges us to review the issue under the plain error doctrine.
The plain error doctrine allows this court to bypass normal forfeiture principles and consider an
unpreserved error when either (1) the evidence is close, regardless of the seriousness of the error,
or (2) the error is serious, regardless of the closeness of the evidence. People v. Magallanes, 409
Ill. App. 3d 720, 727-28 (2011). The first step under either prong of the plain error doctrine is to
determine whether a clear or obvious error occurred at trial. People v. Anaya, 2017 IL App (1st)
150074, ¶ 58. We will accordingly determine if the consecutive sentence statue applies to the
defendant.
¶ 45 When multiple offenses are committed in a single course of conduct during which there
was no substantial change in the nature of the criminal objective, the sentence shall not exceed
the sum of the maximum terms for the two most serious felonies involved. 730 ILCS 5/5-8-
4(f)(2) (West 2016). In determining whether multiple offenses were committed as part of a
single course of conduct, we must assess whether the defendant's acts were independently
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motivated. People v. Wilder, 325 Ill. App. 3d 987, 1001 (2001). The determination of whether a
defendant's actions constituted a single course of conduct is a question of fact for the trial court
to determine. People v. Edwards, 259 Ill. App. 3d 151, 156 (1994). Therefore, we defer to the
trial court's conclusion unless that conclusion is against the manifest weight of the evidence.
People v. Daniel, 311 Ill. App. 3d at 287.
¶ 46 Defendant argues that the offenses in this case were part of a single course of conduct.
The State responds that the offenses were not committed as part of a single course of conduct.
The trial court did not make an express finding in this case as to whether the offenses committed
on March 28, 2013, of which defendant was convicted, arose out of a single course of conduct.
However, there is a presumption that a trial court knows the law and applies it. People v.
Gaultney, 174 Ill. 2d 410, 420 (1996); People v. Robinson, 2015 IL App (1st) 130837, ¶ 103.
Thus, we must presume that the trial court reasoned that there was a substantial change in
defendant's criminal objective and that the consecutive sentences imposed were authorized by
statute. Cf. People v. Sergeant, 326 Ill. App. 3d 974 (2001).
¶ 47 The record supports this presumption. Chambers established that defendant’s original
criminal intent at the beginning of the night was to rob someone. That criminal objective was
fulfilled after defendant and Chambers entered F.J.’s home and robbed her of her credit cards,
phone, iPad, and laptop. Defendant’s criminal objective then changed from robbing F.J. to
sexually assaulting her in her home. The objective then changed to kidnapping F.J. Defendant
and Chambers again forcefully raped F.J. as she was held against her will in the back seat of the
car. This was a completely separate sexual assault, different in time and location than the first
two sexual assaults and was not part of the same course of criminal conduct that occurred in her
home. See People v. Perruquet, 118 Ill. App. 3d 293, 296-97 (1983) (finding that the defendant
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formed separate criminal objectives where “the defendant committed two acts of rape against the
victim that were separate in time and location” even though they occurred during the same day).
We therefore reject the defendant's argument that his offenses were committed as part of a single
course of conduct. Consequently, the trial court did not err by failing to sentence the defendant in
accordance with the consecutive sentencing statute. Since there was no error, there can be no
plain error.
¶ 48 Defendant next argues that, because he was an "emerging adult who committed a non-
homicide offense," his seventy-year sentence is a de facto life sentence which violates the Eighth
Amendment and Illinois' Proportionate Penalties Clause as applied to him.
¶ 49 The eighth amendment's prohibition of “cruel and unusual punishment[ ]” applies to the
states through the fourteenth amendment. U.S. Const., amends. VIII, XIV; People v. Davis, 2014
IL 115595, ¶ 18. In Miller v. Alabama, 567 U.S. 460, 471-80 (2012), the United States Supreme
Court held that mandatory life sentences imposed on juvenile offenders, those under the age of
18 at the time of the offense, violate the eighth amendment because this prevents the sentencing
court from considering the mitigating aspects of youth, i.e., their immaturity, impulsivity, and
increased vulnerability to negative influences. Our supreme court has since determined that
Miller applies to mandatory, discretionary, natural, or de facto life sentences imposed on
juveniles. People v. Holman, 2017 IL 120655, ¶¶ 40, 46; People v. Reyes, 2016 IL 119271, ¶ 9.
It also drew the line for a de facto life sentence at 40 years. People v. Buffer, 2019 IL 122327, ¶¶
40-41. Accordingly, “to prevail on a claim based on Miller and its progeny, a defendant
sentenced for an offense committed while a juvenile must show that (1) the defendant was
subject to a life sentence, mandatory or discretionary, natural or de facto, and (2) the sentencing
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court failed to consider youth and its attendant characteristics in imposing the sentence.” Id. ¶ 27
(citing Holman, 2017 IL 120655, ¶ 40).
¶ 50 In this case it is undisputed that defendant was 22 years old at the time he committed the
aggravated criminal sexual assaults at issue. “By now, it is clear that the categorical findings
made by Miller and its progeny under the federal eighth amendment apply only to juveniles.”
People v. Harris, 2018 IL 121932, ¶¶ 49-61 (collecting cases and stating that the 19-year-old
defendant “cannot avail himself of the eighth amendment” under Miller). “[C]laims for
extending Miller to offenders 18 years of age or older have been repeatedly rejected.” Id. ¶ 61.
“It is well established that offenders who are 18 years and older cannot raise a facial challenge to
their sentences under the eighth amendment and the Miller line of cases.” People v. Franklin,
2020 IL App (1st) 171628, ¶ 49. Therefore, defendant’s eighth amendment challenge fails.
¶ 51 Forfeiture aside, defendant also makes an as applied challenge to his sentence under the
proportionate penalties clause. The proportionate penalties clause provides that “[a]ll penalties
shall be determined both according to the seriousness of the offense and with the objective of
restoring the offender to useful citizenship.” Ill. Const. 1970, art. I, § 11. Our courts have
construed the clause to extend greater protections against excessive punishment than the eighth
amendment. People v. Fernandez, 2014 IL App (1st) 120508. A defendant's sentence violates
the proportionate penalties clause where “the punishment for the offense is cruel, degrading, or
so wholly disproportionate to the offense as to shock the moral sense of the community.” People
v. Miller, 202 Ill. 2d 328, 338 (2002). To comply with the proportionate penalties clause, the
court must balance the goals of retribution and rehabilitation, carefully considering all factors in
aggravation and mitigation. People v. Quintana, 332 Ill. App. 3d 96, 109 (2002). “To determine
whether a penalty shocks the moral sense of the community, we must consider objective
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evidence as well as the community's changing standard of moral decency.” People v. Hernandez,
382 Ill. App. 3d 726, 727 (2008).
¶ 52 Miller has recently been expanded to apply to those over 18. Our supreme court has
acknowledged that young adults, at least those who were 20 years of age or younger at the time
of their crimes, may still rely on the evolving neuroscience and societal standards underlying the
rule in Miller to support as-applied challenges to life sentences brought pursuant to the Illinois
proportionate penalties clause (Ill. Const. 1970, art. I, § 11). People v. Thompson, 2015 IL
118151, ¶ 44 (19-year-old defendant was “not necessarily foreclosed” from raising claim in
postconviction proceedings that sentence was unconstitutional as applied to him), and People v.
Harris, 2018 IL 121932, ¶ 48 (as-applied, youth-based sentencing claim of 18-year-old
defendant was “more appropriately raised” in postconviction proceedings where a factual record
could be developed)). See also People v. Evans, 2021 IL App (1st) 172809, ¶ 16 (our supreme
court has “opened the door for young adult offenders to demonstrate that their own specific
characteristics at the time of their offense were so like those of a juvenile that the imposition of a
life sentence, absent the safeguards established in Miller, violates the proportionate penalties
clause”); People v. Franklin, 2020 IL App (1st) 171628, ¶ 51 (“Illinois courts typically consider
the sentencing claims of young adults under the proportionate penalties clause rather than the
eighth amendment”).
¶ 53 Nevertheless, in this case, defendant was 22 years old at the time he committed the
offenses, which is well past the 18-to-21-year-old group of defendants who have successfully
asserted as-applied Miller-based claims under the proportionate penalties clause. See People v.
Rivera, 2020 IL App (1st) 171430, ¶ 27 (observing that the Miller-based protections “were
applied to under-18-year-olds and which have been arguably extended in some cases and statutes
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to under-21-year-olds”). Defendant fails to provide any authority where a 22-year-old offender
received the special considerations set forth in Miller. “[Defendant] can point to no case in which
an Illinois court has recognized that a life sentence imposed on a young adult—21 or older as
[defendant] was—is unconstitutional as applied to that offender under the proportionate penalties
clause or the eighth amendment.” People v. Humphrey, 2020 IL App (1st) 172837, ¶ 33. “The
evolving science on brain development may support such claims at some time in the future, but
for now individuals who are 21 years or older when they commit an offense are adults for
purposes of a Miller claim.” Id. “While 21 is undoubtedly somewhat arbitrary, drawing a line
there is in keeping with other aspects of criminal law and society's current general recognition
that 21 is considered the beginning of adulthood.” Id. ¶ 34.
¶ 54 Even so, defendant had a Miller compliant sentencing hearing. At the sentencing hearing
before Judge Zelezinski, for this 22-year-old adult, defendant had the opportunity present any
and all evidence he believed mitigated his offense. Defense counsel zealously represented
defendant in this respect. As demonstrated by the record, Judge Zelezinski properly considered
all mitigation where he explicitly considered defendant's social history, education, criminal
history, family life and potential for rehabilitation but still sentenced defendant to 126 years in
prison. Judge Boyd then presided over defendant's re-sentencing hearing and significantly
reduced the defendant's sentence by 56 years to an aggregate term of 70 years, noting that he
read Judge Zelezinski's sentencing transcript. While Judge Boyd agreed with many of the
aggravating factors Judge Zelezinski relied on, he also found that the 126-year sentence to be
“essentially the death penalty," and he resentenced defendant to just ten years over the minimum.
As in People v. Croft, 2018 IL App (1st) 150043, appeal denied, 98 N.E. 2d 28 (2018), cert
denied 139 S. Ct. 291 (2018), the trial court in this case had before it the trial testimony, the
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evidence, defendant’s presentence investigation, and the sentencing arguments of the parties
before it sentenced defendant. Further, defendant's age was the driving force behind Judge
Boyd's substantial reduction in defendant's sentence. As a result, the trial court considered the
same factors the Holman court found to be constitutionally consistent with Miller.
¶ 55 In short, defendant was afforded the opportunity to develop a factual record in an effort to
show that his specific characteristics were so like those of a juvenile that the sentence imposed
violated the proportionate penalties clause, absent the safeguards set forth in Miller. Given this
extensive factual record and our analysis set forth above, defendant's sentence does not shock the
moral sense of the community in violation of the proportionate penalties clause.
¶ 56 We also reject defendant’s argument that his 70-year sentence is excessive. The trial
court must consider both the seriousness of the offense and the defendant's rehabilitative
potential at sentencing. Ill. Const. 1970, art. I, § 11. A trial court’s sentencing decision is granted
considerable deference and we will only disturb that sentence if we find the trial court has abused
its discretion. People v. Alexander, 239 Ill. 2d 205, 212-13 (2010). This is because the
sentencing court is better situated to consider the “defendant's credibility, demeanor, moral
character, mentality, environment, habits, and age.” People v. Snyder, 2011 IL 111382, ¶ 36.
¶ 57 The seriousness of a defendant's crime is the most important consideration at sentencing.
People v. Cruz, 2019 IL App (1st) 170886, ¶ 51. The sentencing court will be presumed to have
considered all relevant factors in mitigation, “absent some indication to the contrary other than
the sentence itself.” People v. Thompson, 222 Ill. 2d 1, 45 (2006). Mitigating factors such as
rehabilitative potential are not entitled to greater weight than aggravating factors. Alexander, 239
Ill. 2d at 214 (citing People v. Coleman, 166 Ill. 2d 247, 261 (1995)). The reviewing court should
not substitute its judgment for that of the sentencing court when weighing factors in mitigation
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and aggravation. People v. Jones-Beard, 2019 IL App (1st) 162005, ¶ 21.
¶ 58 As discussed, the record in this case clearly demonstrates that the trial court did not abuse
its discretion in crafting defendant’s 70-year sentence. Defendant was initially sentenced to an
aggregate term of 126 years in prison. In calculating that sentence, Judge Zelezinski stated that
he had reviewed the pre-sentence investigation report which detailed defendant’s social life,
education, criminal background,amongst many other things. In mitigation, the court considered
defendant’s supportive family life and noted that nothing extremely aggravating came from
defendant’seducational, family or financial background. The court also considered the lack of
defendant’s adult and juvenile background and noted that defendant received boot camp for his
prior felony conviction, which had the goal of giving offenders without extensive backgrounds,
or youthful offenders, a “chance to go along life without committing further crimes.” The court
specifically considered defendant’s rehabilitative potential finding such potential was “nil.” Then,
at defendant’s resentencing hearing, Judge Boyd significantly reduced the defendant’s sentence by
56 years to an aggregate term of 70 years, to be served at 85%. Judge Boyd specifically noted that
he read Judge Zelezinski’s sentencing transcript but did not want defendant to spend the rest of
his life in jail. The court carefully considered all of the necessary factors in arriving at a 70-
year sentence.
¶ 59 Defendant lastly argues that his conviction for armed robbery must merge into his
conviction for aggravated kidnapping since it is a predicate felony; his aggravated kidnapping
convictions must merge into each other where they are based on the same act; and the one
remaining aggravated kidnapping conviction must merge into one of the aggravated criminal
sexual assault convictions based on kidnapping where it is a predicate, aggravating felony,
thereby reducing his sentence to an aggregate term of 63 years.
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¶ 60 Defendant has acknowledged that he forfeited his one-act, one-crime argument by failing
to raise it before the trial court, but he seeks review under the plain error doctrine. The plain error
doctrine allows a reviewing court to consider an unpreserved error “(1) when ‘a clear or obvious
error occurred and the evidence is so closely balanced that the error alone threatened to tip the
scales of justice against the defendant, regardless of the seriousness of the error,’ or (2) when ‘a
clear or obvious error occurred and that error is so serious that it affected the fairness of the
defendant's trial and challenged the integrity of the judicial process, regardless of the closeness
of the evidence.’ ” People v. Sebby, 2017 IL 119445, ¶ 48. Our supreme court has previously
explained that one-act, one-crime violations fall within the second prong of the plain error
doctrine as an obvious error so serious that it challenges the integrity of the judicial process.
People v. Nunez, 236 Ill. 2d 488, 493 (2010); see also People v. Artis, 232 Ill. 2d 156, 168
(2009). Despite the forfeiture, we will address defendant's argument under the second prong of
the plain error doctrine. However, we must first consider whether a one-act, one-crime error
occurred.
¶ 61 In People v. King, 66 Ill. 2d 551, 566 (1977), our supreme court held that a criminal
defendant may not be convicted of multiple offenses when those offenses are all based on
precisely the same physical act. In making that determination, this court has long followed a two-
step analysis. People v. Rodriguez, 169 Ill. 2d 183, 186 (1996). First, the court ascertains whether
the defendant's conduct consisted of a single physical act or separate acts. Id. If it is determined
that the defendant committed multiple acts, the court then moves to the second step and
determines whether any of the offenses are lesser-included offenses. Id. To determine whether
one offense is a lesser included offense of another, we apply the “ ‘abstract elements’ ” approach.
People v. Reveles-Cordova, 2020 IL 124797, ¶ 13. “This approach requires the court to examine
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the statutory elements of the two offenses.” Id. “ ‘If all of the elements of one offense are
included within a second offense and the first offense contains no element not included in the
second offense, the first offense is deemed a lesser-included offense of the second.’ ” Id.
(quoting People v. Miller, 238 Ill. 2d 161, 166 (2010)). “In other words, it must be impossible to
commit the greater offense without necessarily committing the lesser offense.” Id. If none of the
offenses are lesser-included offenses, then multiple convictions are proper. Id. Whether a
violation of the rule has occurred is a question of law, which we review de novo. People v.
Robinson, 232 Ill. 2d 98, 105 (2008).
¶ 62 The State concedes, and we agree, that defendant's conviction for aggravated kidnapping
in count 113 should merge into his aggravated kidnapping conviction in count 118 where they
are based on the same act of transporting F.J. from her house and secretly confining her in her
car. However, the State argues that defendant's remaining conviction for aggravated kidnapping
in count 118 does not violate the one act, one crime doctrine and is proper.
¶ 63 Defendant argues that he may not be convicted of both armed robbery and aggravated
kidnapping and the aggravated sexual assaults predicated on those crimes. In his motion to cite
additional authority, defendant argues that People v. Reveles-Cordova, 2020 IL 124797, supports
his position. In Reveles-Cordova, our supreme court was charged with determining how the
abstract elements test applied to the offense of home invasion when the defendant was charged
with criminal sexual assault and home invasion predicated upon criminal sexual assault. The
court held:
“Proof of criminal sexual assault is a necessary element of proof of home invasion
predicated on criminal sexual assault. All the elements of criminal sexual assault are
included in the offense of home invasion predicated on criminal sexual assault, and
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criminal sexual assault contains no element not included in home invasion. It is
impossible to commit home invasion predicated upon criminal sexual assault without
committing criminal sexual assault. As such, criminal sexual assault is a lesser-included
offense of home invasion.” 2020 IL 124797, ¶ 21.
¶ 64 We find that Reveles-Cordova does not support defendant’s assertion that his aggravated
kidnapping and armed robbery convictions should be vacated as lesser included offenses of the
aggravated criminal sexual assault convictions. Reveles-Cordova is inapplicable to defendant’s
armed robbery conviction as none of the aggravated criminal sexual assault counts of which he
was convicted are premised upon robbery or armed robbery. In addition, in this case, defendant
was charged with two counts of aggravated criminal sexual assault predicated on kidnapping, but
he was not convicted of the offense of kidnapping. Rather, he was convicted of the separate
offense of aggravated kidnapping. As such, unlike Reveles-Cordova, defendant’s aggravated
kidnapping conviction contains an element not included in the aggravated criminal sexual
assault, the use of a “dangerous weapon other than a firearm to wit: a bludgeon.” Accordingly,
defendant’s conviction for aggravated kidnapping remains unchanged.
¶ 65 CONCLUSION
¶ 66 Based on the foregoing, the judgment of the circuit court is affirmed.
¶ 67 Affirmed.
¶ 68 JUSTICE HYMAN, specially concurring:
¶ 69 I join the majority’s judgment and its reasoning save for paragraphs 53-55.
¶ 70 I remain of the view that retrospectively analyzing a young adult’s sentencing hearing for
compliance with Miller v. Alabama, 567 U.S. 460 (2012) neither makes sense nor is required under
People v. Holman, 2017 IL 120655, ¶ 47 (“For juvenile defendants ***any inquiry into the Miller
factors is backwards-looking”) (emphasis added). As this court has elsewhere explained, we 24 1-17-2478
cannot determine whether a sentencing hearing complies with Miller unless we can be sure the
trial court was thinking of the young adult in front of them as a juvenile for constitutional purposes.
See e.g., People v. Ruiz, 2020 IL App (1st) 163145, ¶ 52; cf. also People v. Thompson, 2021 IL
App (1st) 180297-U, ¶ 49 (Hyman, J. dissenting) (“I fail to see how a trial court could possible
have viewed the relevant sentencing facts in their proper constitutional scope when the law
applying Miller principles to young adults through the proportionate penalties clause was and still
is not settled.”).
¶ 71 Accepting the majority’s premise, however, I am still not at all convinced that Romaine’s
sentencing proceedings were compliant with Miller under Holman. At Romaine’s sentencing
hearing, his counsel did not mention his age, let alone argue that the constitutional protections
afforded to juveniles under Miller should apply to him under the proportionate penalties clause.
The trial court similarly made no mention of Romaine’s age in explaining the factors that mitigated
his sentence. Romaine’s boilerplate motion to reconsider his sentence made no mention of his age,
Miller, or the proportionate penalties clause. At the hearing on the motion to reconsider sentence,
Romaine’s counsel similarly made no argument about extending Miller protections to him as a
young adult. Finally, after granting Romaine’s motion to reconsider and recrafting his sentence,
the trial court again did not account for Romaine’s age or view his rehabilitative potential through
any constitutional lens.
¶ 72 Of course, the trial court need not recite “magic words” reflecting its understanding of
Romaine’s youth. See People v. Lusby, 2021 IL 124046, ¶ 33. Nonetheless, to be Miller-compliant,
it was obligated “to consider the defendant’s youth and its attendant circumstances in mitigation.”
Here, nothing in the record suggests that the trial court, aside from its awareness of Romaine’s
chronological age, considered his youth as mitigating.
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¶ 73 Of course, this analysis assumes Miller applies to Romaine. And here is where my
company rejoins the majority. The majority correctly finds that Romaine had the opportunity to
argue that Miller should apply to him as a young adult. At the time of Romaine’s sentencing
hearing, the theory of invoking the proportionate penalties clause to protect young adults under
Miller was nascent, to be sure, but those arguments had already percolated to our supreme court
the year before in a different procedural context. See People v. Thompson, 2015 IL 118151. So the
majority correctly finds Romaine’s claim fails for lack of factual development; in other words, the
same reason that the majority should refrain from finding his sentencing was Miller compliant.
¶ 74 I join the majority’s judgment with two additional understandings. First, nothing in this
order precludes Romaine from developing a proportionate penalties clause argument against his
sentence in postconviction proceedings either with new evidence or through a claim of ineffective
assistance of counsel. See People v. Harris, 2018 IL 121932, ¶ 48. Second, should Romaine pursue
this relief, the court considering his claims should not feel bound by the majority’s dicta musing
that Miller’s cutoff under the proportionate penalties clause is 21 years old. No decision from our
supreme court sets a cutoff, and the relevant social science presented in other cases suggests
juvenile brain development may continue until age 25. See People v. House, 2019 IL App (1st)
110580-B, ¶¶ 55-56, appeal allowed, No. 125124 (Ill. Jan. 29, 2020).
¶ 75 Because Romaine has not factually developed his claim that Miller should apply to him as
a young adult, I join the majority’s judgment. Because after acknowledging the lack of factual
development, the majority speculates about how the law applicable to juveniles would apply to
Romaine’s current sentencing proceedings, I do not join its reasoning.