People v. Torbeck

2022 IL App (4th) 210668-U

• Court: Appellate Court of Illinois
• Decided: January 4, 2023
• Docket: 4-21-0668
• Status: Unpublished

Opinion

NOTICE 2023 IL App (4th) 210668-U This Order was filed under FILED Supreme Court Rule 23 and is NO. 4-21-0668 January 4, 2023 not precedent except in the Carla Bender limited circumstances allowed IN THE APPELLATE COURT th 4 District Appellate under Rule 23(e)(1). Court, IL OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Coles County CHRISTOPHER TORBECK, ) No. 19CF300 Defendant-Appellant. ) ) Honorable ) James R. Glenn, ) Judge Presiding.

JUSTICE HARRIS delivered the judgment of the court. Justices Turner and Zenoff concurred in the judgment.

ORDER ¶1 Held: (1) Defendant was not prejudiced by the trial court’s failure to strictly comply with Illinois Supreme Court Rule 402(b) (eff. July 1, 2012).

(2) The trial court did not abuse its discretion in denying defendant’s motion to withdraw guilty plea.

(3) The trial court did not impose an excessive sentence.

¶2 Defendant, Christopher Torbeck, pleaded guilty to one count of predatory

criminal sexual assault of a child (720 ILCS 5/11-1.40(a)(1) (West 2018)) and was convicted of a

second count of the same offense following a bench trial. The trial court subsequently sentenced

defendant to consecutive terms of 26 years’ imprisonment. Defendant appeals directly from the

convictions and sentence, arguing (1) the trial court failed to properly admonish him pursuant to

Illinois Supreme Court Rule 402(b) (eff. July 1, 2012), (2) the trial court erred in denying his motion to withdraw guilty plea, and (3) the trial court imposed an excessive sentence. We

affirm.

¶3 I. BACKGROUND

¶4 In July 2019, the State charged defendant with two counts of predatory criminal

sexual assault of a child (id.). In count I, the State alleged that defendant “placed his penis in the

anus of [T].B.” In count II, the State alleged defendant “placed his finger in the anus of [T].B.”

According to the charging documents, T.B. was 7 years old at the time of the alleged offenses;

defendant was 30 years old.

¶5 In August 2019, privately retained defense counsel, Scott Ealy, filed a motion

requesting the trial court appoint a clinical psychologist to conduct a fitness examination of

defendant. Defense counsel attached an affidavit to the motion in which he stated, “[d]efendant

may be unable to communicate with accuracy under certain circumstances and to make decisions

in his own best interests.” The court granted the motion and appointed Dr. Jerry L. Boyd to

examine defendant and submit a written report of his findings to the court. After conducting the

examination, Dr. Boyd concluded defendant met minimum standards for fitness to stand trial

despite the “presence of mild intellectual disability in a person whose mental age is estimated to

be around 10-12 years of age.” Dr. Boyd noted that defendant’s “baseline fitness can be

enhanced by the use of basic language in explanations, repeating important concepts, breaking

down complicated decisions into smaller manageable parts, and by offering simple choices with

clear, brief explanations of consequences.”

¶6 On October 16, 2020, defense counsel filed a motion to withdraw as counsel on

the basis that “[t]he relationship of the parties [was] no longer governed by a contractual

agreement between the parties for future services.” At the hearing on his motion to withdraw,

-2- counsel stated he was “past the point, unfortunately, of being compensated in this matter.” The

trial court denied the motion. On October 26, 2020, the day before the trial was scheduled to

begin, defense counsel informed the court that defendant wished to waive his right to a jury trial.

The court admonished defendant, accepted his waiver, and continued the proceedings.

¶7 Defendant’s bench trial was conducted on February 25, 2021. The State

introduced into evidence two video-recorded interviews conducted with T.B. and a video-

recorded interview of defendant. In defendant’s interview, he confessed to penetrating T.B.’s

anus with his penis and finger. T.B. corroborated both penetrations in his recorded interviews.

T.B. also testified in camera. T.B. testified defendant did not put his finger into T.B.’s “back

private,” and he did not recall telling the investigators otherwise. At the close of the State’s

case-in-chief, defense counsel requested an opportunity to speak with defendant. Following a

12-minute recess, counsel moved for a directed verdict as to both counts. The trial court denied

the motion. Defense counsel then informed the court that defendant wished to plead guilty to

count I and “argument with regard to Count 2.” The trial court asked the State if it objected, and

the State responded, “I’m sorry, but, Your Honor, it’s just something I haven’t encountered

before, given that you have all of the evidence. If he is pleading guilty to Count 1, it is certainly

not a negotiated plea and I’m not sure what else—I’m not sure what else to say on that.” The trial

court ultimately accepted defendant’s guilty plea as to count I and found him guilty of count II

beyond a reasonable doubt.

¶8 Defense counsel filed a motion for new trial in which he argued, in relevant part,

“With regard to both Counts I and II, the Court erred when it failed to grant the Defendant’s

Motion for Directed Verdict at the close of the Plaintiff’s presentation of its case.” The trial court

denied the motion.

-3- ¶9 On July 14, 2021, the trial court sentenced defendant to consecutive terms of 26

years’ imprisonment. The trial court found in mitigation defendant had no prior criminal history

and “was a person with an intellectual disability.” The court also noted it had considered the

evidence presented by defendant, which generally demonstrated that, for “[m]ost of his life, he

was a very good citizen, but on one night, one unfortunate night, this good citizen was a

monster.” T.B.’s parents provided victim impact statements for the court’s consideration. The

parents explained that T.B. no longer trusts men, has had to attend counseling sessions, and

suffers from “night terrors still every night” as a result of the assault. The court found in

aggravation defendant’s conduct caused or threatened serious harm, the sentence was necessary

to deter others, and defendant held a position of trust with the minor. The court noted it took T.B.

20 minutes to speak for the first time in the video-recorded interview and he was shaking in fear

during his trial testimony.

¶ 10 On July 28, 2021, defendant pro se filed a motion to withdraw guilty plea and

reconsider sentence, stating, “I was told by my lawyer that [I] couldn’t afford a jury trial and

[I’m] not educated to know what is going on.” The trial court appointed the public defender to

represent defendant. Appointed counsel amended the motion to withdraw guilty plea to include

claims that the trial court improperly admonished defendant in violation of Illinois Supreme

Court Rule 402(b) (eff. July 1, 2012) and that defense counsel misadvised defendant about the

consequences of pleading guilty to count I.

¶ 11 On October 29, 2021, the trial court conducted a hearing on defendant’s motions

to withdraw guilty plea and reconsider the sentence. Defendant called his former counsel, Scott

Ealy. Ealy testified the State initially offered to recommend consecutive sentences of 25 and 20

years’ imprisonment in exchange for defendant’s agreement to plead guilty to both counts. The

-4- State subsequently offered to dismiss count II if defendant entered an open plea of guilty to count

I. Defendant rejected these offers. Ealy testified that on the day of the bench trial, defendant

informed him that he wished to accept the State’s second offer, but “the State indicated at that

time that they were no longer willing to consider that offer.” Ealy also testified as follows with

respect to the discussion he had with defendant about pleading guilty to count I:

“Q. So part of your advice when you’re speaking to [defendant] about

pleading guilty to Count 1 is that perhaps even if he’s convicted of the second

count, the sentences wouldn’t run consecutive?

A. We can always hope for a change in the law. Also, there would be the

question of the appellate folks, appellate defense, scrutinizing the admonishments,

which I think were a little bit inconsistent. But we knew that what the statute said,

and I did review that with [defendant] with regard to consecutive sentences.

Q. But you left some hope with [defendant] that perhaps these sentences

wouldn’t be consecutive?

A. Yeah. Yeah. That’s not the state of the current law as I explained, but

you never know what might happen in the future as far as developments in the

law, and you never know what might happen on appeal.”

¶ 12 Defendant also testified at the hearing. He was unable to recall the reasoning

behind the decision to plead guilty to count I. Defendant testified he did not know the meaning of

the words, “waive,” “consecutive,” or “mandatory.” Following presentation of the evidence and

arguments, the trial court denied the motions to withdraw guilty plea and reconsider sentence.

¶ 13 This appeal followed.

¶ 14 II. ANALYSIS

-5- ¶ 15 On appeal, defendant argues (1) the trial court failed to properly admonish him

pursuant to Illinois Supreme Court Rule 402(b) (eff. July 1, 2012), (2) the trial court erred in

denying his motion to withdraw guilty plea, and (3) the trial court imposed an excessive

sentence.

¶ 16 A. Defendant Was Not Prejudiced by the Trial Court’s Failure to Strictly Comply With Rule 402(b)

¶ 17 Defendant first argues the trial court violated Rule 402(b) by failing to question

him to confirm his guilty plea was not entered pursuant to an agreement with the State.

Defendant asserts the court’s Rule 402 violation prejudiced him by preventing him from entering

a knowing and voluntary plea. In support of this assertion, defendant highlights Dr. Boyd’s

findings that he has a “mild intellectual disability” and the mental age of a 10- to 12-year-old

child. The State does not challenge defendant’s assertion that the trial court violated Rule 402(b)

by failing to explicitly confirm there was no plea agreement with the State. Instead, the State

contends defendant forfeited his argument by failing to object to the court’s inadequate

admonishments or, alternatively, defendant’s argument fails because he cannot show he suffered

prejudice.

¶ 18 Initially, we find defendant has not forfeited his Rule 402 claim. In People v.

Whitfield, 217 Ill. 2d 177, 179 (2005), the defendant pleaded guilty to first degree murder and

armed robbery and was sentenced to a term of imprisonment that included three years of

mandatory supervised release (MSR). The trial court neglected to admonish the defendant of the

MSR term before accepting his plea, in violation of Rule 402. Id. at 180. The defendant in

Whitfield did not object to the court’s improper admonishment or raise the issue in a motion to

withdraw his guilty plea. Id. Nonetheless, the supreme court rejected the State’s argument that

the defendant had forfeited the Rule 402 claim. Id. at 188. It reasoned that “it would be

-6- incongruous” to hold the defendant had forfeited the right to bring the claim “because he did not

object to the circuit court’s failure to admonish him. To so hold would place the onus on

defendant to ensure his own admonishment in accord with due process.” Id.

¶ 19 Here, it is undisputed that, like the defendant in Whitfield, defendant did not

object to the trial court’s admonishments. However, like in Whitfield, defendant did not have an

obligation to object to the imperfect admonishments in order to be able to challenge them on

direct appeal or in a postconviction petition. Thus, we will address the merits of defendant’s Rule

402 claim.

¶ 20 Rule 402 provides the following in relevant part:

“The court shall not accept a plea of guilty without first determining that

the plea is voluntary. If the tendered plea is the result of a plea agreement,

the agreement shall be stated in open court. The court, by questioning the

defendant personally in open court, shall confirm the terms of the plea

agreement, or that there is no agreement, and shall determine whether any

force or threats or any promises, apart from a plea agreement, were used to

obtain the plea.” Ill. S. Ct. R. 402(b) (eff. July 1, 2012).

“Our supreme court has consistently held that Rule 402 requires only substantial, not literal,

compliance with its provisions ***.” People v. Baker, 133 Ill. App. 3d 620, 622 (1985). “[T]he

failure to properly admonish a defendant, standing alone, does not automatically establish

grounds for reversing the judgment or vacating the plea. [Citation.] Rather, a reviewing court

focuses on whether the guilty plea was affirmatively shown to have been made voluntarily and

intelligently.” People v. Delvillar, 235 Ill. 2d 507, 520 (2009). “[A]n imperfect admonishment is

not reversible error unless real justice has been denied or the defendant has been prejudiced by

-7- the inadequate admonishment.” Whitfield, 217 Ill. 2d at 195. This court reviews de novo whether

the trial court complied with Rule 402. See, e.g., People v. Chavez, 2013 IL App (4th)

120259, ¶ 14.

¶ 21 Here, while we agree with the parties that the trial court failed to strictly comply

with Rule 402(b) by failing to specifically ask defendant whether his guilty plea was entered

pursuant to an agreement with the State, we find reversal is not warranted under the

circumstances, as the trial court substantially complied in its admonishments and defendant has

failed to demonstrate the court’s failure to provide verbatim admonishments prejudiced him.

¶ 22 First, it appears the trial court substantially complied with Rule 402 when it

admonished defendant prior to accepting his guilty plea. Although the court did not “confirm ***

that there [was] no [plea] agreement” as set forth in Rule 402 by making such specific inquiry, it

did question defendant whether there were any promises made to get him to plead guilty to count

I. Ill. S. Ct. R. 402(b) (eff. July 1, 2012). Defendant confirmed there were no such promises

made. We find it difficult to imagine how a plea agreement could exist in the absence of any

promises. The language of Rule 402 itself presupposes plea agreements will consist of promises.

See Ill. S. Ct. R. 402(b) (eff. July 1, 2012) (“The court *** shall determine whether *** any

promises, apart from a plea agreement, were used to obtain the plea.”). Thus, the court’s

ascertainment that no promises were made to induce defendant’s guilty plea essentially

confirmed there was no plea agreement.

¶ 23 Second, our review of the record leads us to believe defendant entered his plea

knowingly and voluntarily. According to defense counsel’s testimony at the hearing on the

motion to withdraw guilty plea, defendant rejected the State’s initial plea offer of consecutive

sentences of 25 and 20 years’ imprisonment on counts I and II, respectively. Defendant also

-8- rejected a second offer to enter an open plea of guilty on count I in exchange for the dismissal of

count II. On the day of trial, defendant indicated he wished to accept the State’s second offer, but

the State responded it was “no longer willing to consider that offer.” The State proceeded to

present its case-in-chief, which included defendant’s video-recorded confession to both counts.

After the State rested, defendant met with trial counsel during a short recess. Defendant then

informed the court he intended to plead guilty to count I. The trial court asked the State if it

objected, and the prosecutor responded, “I’m sorry, but, Your Honor, it’s just something I

haven’t encountered before, given that you have all of the evidence. If he is pleading guilty to

Count I, it is certainly not a negotiated plea and I’m not sure *** what else to say on that.”

¶ 24 Based on the above, we find defendant is unable to demonstrate his plea was not

entered knowingly and voluntarily. The State clearly indicated prior to trial that it was “no longer

willing to consider [the second plea] offer.” Then, when defendant indicated he wished to plead

guilty to count I after the State had presented its case-in-chief, the State responded, “If he is

pleading guilty to Count I, it is certainly not a negotiated plea.” Defendant, in arguing that his

plea was not knowing and voluntary, does not point to anything in the record that suggests he

actually believed he was pleading guilty pursuant to an agreement with the State. Instead, he

merely highlights Dr. Boyd’s findings and his own testimony at the hearing on the motion to

withdraw guilty plea that he did not understand the meaning of the word “negotiated.” This is not

enough to make us doubt that defendant’s guilty plea was knowing or voluntary. Accordingly,

we conclude defendant has failed to demonstrate he was prejudiced by the trial court’s failure to

give verbatim Rule 402 admonishments.

¶ 25 B. The Trial Court Did Not Err in Denying Defendant’s Motion to Withdraw Guilty Plea

-9- ¶ 26 Next, defendant argues the trial court erred in denying his motion to withdraw

guilty plea because the plea was “tainted by ineffective assistance of counsel.” Specifically,

defendant contends counsel was deficient in erroneously advising him (1) he could challenge the

conviction on count I despite pleading guilty to that count and (2) there was “ ‘hope’ ” the

“mandatory consecutive sentences would eventually run concurrently.” He asserts he was

prejudiced by counsel’s deficient performance because, absent counsel’s erroneous advice, he

would not have pleaded guilty given he had a plausible defense to count I—namely, the

predatory criminal sexual assault of a child statute is unconstitutional as applied to him because

he has “the mental development of a 10[-] to 12-year-old child.” “The decision to grant or deny a

motion to withdraw a guilty plea rests in the sound discretion of the circuit court and, as such, is

reviewed for abuse of discretion.” People v. Baez, 241 Ill. 2d 44, 109-10 (2011).

¶ 27 A defendant does not have an absolute right to withdraw a guilty plea. See, e.g.,

People v. Jamison, 197 Ill. 2d 135, 163 (2001). Instead, he “must show a manifest injustice under

the facts involved.” Delvillar, 235 Ill. 2d at 520. “The decision of the trial court will not be

disturbed unless the plea was entered through a misapprehension of the facts or of the law ***.”

Id. “Where the defendant has claimed a misapprehension of the facts or of the law, the

misapprehension must be shown by the defendant.” Id. “Where the plea of guilty was entered

*** in consequence of misrepresentations by counsel[,] *** the court should permit the

withdrawal of the plea of guilty and allow the accused to plead not guilty.” (Emphasis omitted

and internal quotation marks omitted.) People v. Manning, 227 Ill. 2d 403, 412 (2008). “Whether

[the] defendant’s plea was knowingly and voluntarily made depends on whether the defendant

had effective assistance of counsel.” (Internal quotation marks omitted.) Id.

- 10 - ¶ 28 Our supreme court has adopted the two-part test articulated in Strickland v.

Washington, 466 U.S. 668 (1984), to determine whether a defendant was denied the effective

assistance of counsel in entering a guilty plea. See, e.g., Manning, 227 Ill. 2d at 412. To succeed

on an ineffective-assistance claim, “a defendant must show (1) counsel’s representation fell

below an objective standard of reasonableness (deficiency prong) and (2) there is a reasonable

probability that, but for counsel’s error, the result of the proceedings would have been different

(prejudice prong).” People v. Boyd, 2018 IL App (5th) 140556, ¶ 16. “An attorney’s conduct is

deficient if the attorney failed to ensure that the defendant’s guilty plea was entered voluntarily

and intelligently.” People v. Hall, 217 Ill. 2d 324, 335 (2005). For purposes of the prejudice

prong, “a guilty-plea defendant ‘must show that there is a reasonable probability that, but for

counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.’ ”

People v. Brown, 2017 IL 121681, ¶ 26 (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)). “A

conclusory allegation that a defendant would not have pleaded guilty and would have demanded

a trial is insufficient to establish prejudice.” People v. Valdez, 2016 IL 119860, ¶ 29. “Rather, the

defendant’s claim must be accompanied by either a claim of innocence or the articulation of a

plausible defense that could have been raised at trial.” Hall, 217 Ill. 2d at 335-36.

¶ 29 Here, defendant is unable to demonstrate ineffective assistance of counsel because

he has failed to satisfy the deficiency prong of the Strickland test. As state above, defendant

contends counsel was deficient in erroneously advising him (1) he could challenge the conviction

on count I despite pleading guilty to that count and (2) there was “ ‘hope’ ” the “mandatory

consecutive sentences would eventually run concurrently.” However, both of these contentions

are refuted by the record. In arguing counsel misadvised him regarding his ability to later

challenge the conviction on count I, defendant cites his motion for new trial, in which defense

- 11 - counsel states, “With regard to both Counts I and II, the Court erred when it failed to grant the

Defendant’s Motion for Directed Verdict at the close of the Plaintiff’s presentation of its case.”

This one sentence, contained in a motion filed after defendant had entered his guilty plea, hardly

amounts to an affirmative showing that counsel erroneously advised him, prior to pleading

guilty, that he would be able to challenge his conviction on appeal.

¶ 30 As for the contention counsel advised him there was “ ‘hope’ ” the mandatory

consecutive sentences would eventually run concurrently, defendant cites to a portion of

counsel’s testimony at the hearing on the motion to withdraw guilty plea. In relevant part, when

asked if he “left some hope with [defendant] that perhaps these sentences wouldn’t be

consecutive[,]” counsel answered, “Yeah. Yeah. That’s not the state of the current law as I

explained, but you never know what might happen in the future as far as developments in the

law.” Thus, contrary to defendant’s assertion that counsel advised him his consecutive sentences

may “eventually run concurrently,” the record shows counsel advised him, correctly, that his

sentences were required to run consecutively by law, and the only hope in them being served

concurrently at some point was through a change in the law. Thus, because defendant is unable

to demonstrate counsel affirmatively misadvised him, he cannot show counsel performed

deficiently and his ineffective assistance claim necessarily fails. See, e.g., Boyd, 2018 IL App

(5th) 140556, ¶ 19 (“Both prongs under Strickland must be satisfied in order to succeed on a

claim of ineffective assistance, and the failure to satisfy either prong will be fatal to the claim.

[Citation.] Therefore, a court need not address both components of the inquiry if the defendant

makes an insufficient showing on one.”). Accordingly, we find the trial court did not abuse its

discretion in denying defendant’s motion to withdraw guilty plea.

¶ 31 C. The Trial Court Did Not Impose an Excessive Sentence

- 12 - ¶ 32 Finally, defendant argues the trial court imposed an excessive sentence.

Defendant contends the trial court improperly relied on two factors in aggravation: (1) the need

for deterrence and (2) defendant’s conduct caused or threatened serious physical injury.

Defendant further contends the court did not give sufficient weight to several mitigating factors,

such as his lack of a criminal history, his intellectual disability, and the fact he pleaded guilty to

one of the charges.

¶ 33 “The Illinois Constitution provides penalties are to be determined both according

to the seriousness of the offense and with the objective of restoring the offender to useful

citizenship.” People v. Daly, 2014 IL App (4th) 140624, ¶ 26 (citing Ill. Const. 1970, art. I,

§ 11). “This constitutional mandate calls for balancing the retributive and rehabilitative purposes

of punishment, and the process requires careful consideration of all factors in aggravation and

mitigation.” Id. The factors to consider include, “inter alia, the defendant’s age, demeanor,

habits, mentality, credibility, criminal history, general moral character, social environment, and

education, as well as the nature and circumstances of the crime and of defendant’s conduct in the

commission of it.” People v. Quintana, 332 Ill. App. 3d 96, 109 (2002). “The seriousness of the

crime is the most important factor in determining an appropriate sentence, not the presence of

mitigating factors such as the lack of a prior record, and the statute does not mandate that the

absence of aggravating factors requires the minimum sentence be imposed.” Id.

¶ 34 Reviewing courts must give “great deference to the trial court’s judgment

regarding sentencing because the trial judge, having observed the defendant and the proceedings,

has a far better opportunity to consider these factors than the reviewing court, which must rely on

the ‘cold’ record.” People v. Fern, 189 Ill. 2d 48, 53 (1999). “The trial judge has the opportunity

to weigh such factors as the defendant’s credibility, demeanor, general moral character,

- 13 - mentality, social environment, habits, and age. [Citations.] Consequently, the reviewing court

must not substitute its judgment for that of the trial court merely because it would have weighed

these factors differently.” People v. Stacey, 193 Ill. 2d 203, 209 (2000). “A reviewing court may

not alter a defendant’s sentence absent an abuse of discretion ***.” People v. Alexander, 239 Ill.

2d 205, 212 (2010). An abuse of discretion occurs when the sentence is “greatly at variance with

the spirit and purpose of the law, or manifestly disproportionate to the nature of the offense.”

Stacey, 193 Ill. 2d at 210.

¶ 35 Here, defendant was convicted of two counts of predatory criminal sexual assault

of a child. This offense is a Class X felony punishable by a sentence of between 6 and 60 years’

imprisonment. 720 ILCS 5/11-1.40(a)(1), (b)(1) (West 2018). The trial court must impose

consecutive sentences when a defendant is convicted of multiple counts of predatory criminal

sexual assault of a child. 730 ILCS 5/5-8-4(d)(2) (West 2018). Thus, defendant faced a

sentencing range of 12 to 120 years’ imprisonment. Defendant’s aggregate sentence of 52 years’

imprisonment was 40 years above the minimum and 68 years below the maximum.

¶ 36 The record shows the trial court carefully considered the applicable mitigating

and aggravating factors in imposing its sentence. Specifically, the court found in mitigation that

defendant had no prior criminal history and he “was a person with an intellectual disability.” In

aggravation, the court found defendant’s conduct caused or threatened serious harm, the sentence

was necessary to deter others from committing the same offense, and defendant held a position

of trust with the victim. The court also noted it had considered the evidence defendant presented

at the sentencing hearing, which demonstrated that “[m]ost of his life, he was a very good

citizen, but on one night, one unfortunate night, this good citizen was a monster.” The court

explicitly stated it had considered defendant’s lack of criminal history and his intellectual

- 14 - disability. That the court took these factors into consideration may be inferred from the fact it

imposed a sentence 68 years below the maximum. However, the court was also required to

consider the seriousness of the offense and the harm it caused to the minor victim. Based on the

court’s careful consideration of the applicable factors and evidence presented, we cannot say it

abused its discretion in sentencing defendant.

¶ 37 In arguing to the contrary, defendant asserts it was improper for the court to

consider in aggravation the need for deterrence and that his conduct caused or threatened serious

physical harm. Defendant cites People v. McKinley, 2020 IL App (1st) 191907, in support of the

former assertion. In McKinley, the First District found the trial court had abused its discretion in

sentencing the 16-year-old defendant to 39 years’ imprisonment for first degree murder. Id. ¶ 91.

It reasoned, in part, the trial court had placed improper weight on the need for deterrence

because, as the Supreme Court found in Montgomery v. Louisiana, 577 U.S. 190, 207 (2016),

“deterrence is diminished in juvenile sentencing because juveniles’ recklessness, immaturity, and

impetuosity make them less likely to consider possible punishment.” (Internal quotation marks

omitted.) McKinley, 2020 IL App (1st) 191907, ¶ 89. McKinley is readily distinguishable in that

the defendant in that case was a juvenile, whereas here, defendant was 30 years old when he

committed the instant offenses. Although defendant argues the rationale in McKinley should

apply to his case with equal force considering his intellectual disability, he fails to cite any

authority in support of this assertion, and we reject his argument.

¶ 38 Defendant also argues it was improper for the trial court to consider in

aggravation that his conduct caused or threatened serious “physical” harm because “T.B. was

examined at the hospital the day after the offenses and the results of the penile and rectal

examinations indicated absolutely no physical abrasions or injuries to T.B. as a result of the

- 15 - instant offenses.” Initially, we note the court did not find defendant’s conduct caused or

threatened serious “physical” harm. Instead, the court found his conduct caused or threatened

serious harm: “With regard to factors in aggravation, I agree with the State that *** [d]efendant’s

conduct caused or threatened serious harm—that’s Factor Number 1—and the evidence has

shown that today.” See 730 ILCS 5/5-5-3.2(a)(1) (West 2018) (A sentencing court may consider

in aggravation that “the defendant’s conduct caused or threatened serious harm.”).

¶ 39 Moreover, the record supports the trial court’s reliance on this factor in

aggravation. When determining whether the defendant’s conduct caused or threatened serious

harm, the sentencing court is permitted to consider both physical and psychological harm. See,

e.g., People v. Calva, 256 Ill. App. 3d 865, 875 (1993); People v. Burton, 102 Ill. App. 3d 148,

154 (1981). Here, the evidence presented at the sentencing hearing shows T.B. suffered serious

psychological harm as a result of the assault. He no longer trusts men and can only have female

teachers. T.B. also had to begin counseling and suffers from “night terrors *** every night.” The

court further described how terrified the minor was during his video-recorded interview and his

testimony at trial. Therefore, the trial court did not err in finding defendant’s conduct caused

serious harm to T.B. beyond that which is inherent in the offense.

¶ 40 Finally, defendant argues the trial court did not properly consider in mitigation

that he had no prior criminal history, had an intellectual disability, had been a “very good

citizen,” and pleaded guilty to count I. As discussed above, the trial court explicitly stated it had

considered the first three factors listed by defendant. With respect to the fact defendant pleaded

guilty to one of the counts, we note, “[t]he trial judge is not required to detail precisely for the

record the exact process by which she determined the penalty nor is she required to articulate her

consideration of mitigating factors.” Quintana, 332 Ill. App. 3d at 109. Moreover, defendant

- 16 - only pleaded guilty after T.B. was forced to testify and recount the crime defendant committed

against him. Thus, defendant has failed to show the trial court erred in balancing the applicable

mitigating and aggravating factors. We find the trial court did not abuse its discretion in

sentencing defendant to 52 years’ imprisonment.

¶ 41 III. CONCLUSION

¶ 42 For the reasons stated, we affirm the trial court’s judgment.

¶ 43 Affirmed.

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