                                                                             FILED

                                  2018 IL App (4th) 160457                November 27, 2018

                                                                              Carla Bender

                                        NO. 4-16-0457                     4th District Appellate

                                                                                Court, IL

                               IN THE APPELLATE COURT

                                        OF ILLINOIS

                                    FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,                      )     Appeal from the

           Plaintiff-Appellee,                            )     Circuit Court of

           v.                                             )     Piatt County

TRAVIS D. RHOADES,                                        )     No. 14CF2

           Defendant-Appellant.	                          )
                                                          )     Honorable

                                                          )     Roger B. Webber,

                                                          )     Judge Presiding.



              JUSTICE TURNER delivered the judgment of the court, with opinion. 

              Justices Knecht and Cavanagh concurred in the judgment and opinion.


                                          OPINION

¶1            In March 2016, the trial court convicted defendant, Travis D. Rhoades, of

predatory criminal sexual assault (720 ILCS 5/11-1.40(a)(1) (West 2014) (formerly 720 ILCS

5/12-14.1(a)(1) (West 2010))) and aggravated criminal sexual abuse (720 ILCS 5/11-1.60(d)

(West 2014) (formerly 720 ILCS 5/12-16(d) (West 2010))) after a bench trial. The court

sentenced defendant to a mandatory term of natural life in prison for predatory criminal sexual

assault pursuant to section 11-1.40(b)(2) of the Criminal Code of 2012 (Criminal Code) (720

ILCS 5/11-1.40(b)(2) (West 2016) (formerly 720 ILCS 5/12-14.1(b)(2) (West 2010))) and a

consecutive term of 12 years in prison for aggravated criminal sexual abuse. Defendant appeals,

arguing section 11-1.40(b)(2) of the Criminal Code is facially unconstitutional because it

mandates a life sentence—the harshest sentence allowed under Illinois law. Defendant argues

this violates “the principle of proportionality and the Eighth Amendment’s ban on cruel and
unusual punishment.” We affirm.

¶2                                     I. BACKGROUND

¶3              As defendant is only challenging the constitutionality of section 11-1.40(b)(2) of

the Criminal Code (720 ILCS 5/11-1.40(b)(2) (West 2016)) on its face, we need not extensively

discuss the facts in this case.

¶4              In January 2014, the State charged defendant, who was 39 years old at the time of

his trial in March 2016 and well over 17 years old at the time of the charged offenses, with one

count of predatory criminal sexual assault (720 ILCS 5/11-1.40(a)(1) (West 2014)) for placing

his finger in the vagina of a girl who was under 13 years of age at the time of the offense. The

charge noted defendant had a prior predatory criminal sexual assault conviction, which made him

eligible for a mandatory natural life sentence. The State also charged defendant with one count of

aggravated criminal sexual abuse (720 ILCS 5/11-1.60(d) (West 2014)) for knowingly rubbing

the vagina of another teenage girl. The alleged acts in both counts of the information occurred

between October 2010 and June 2011.

¶5              Defendant’s prior conviction for predatory criminal sexual assault (720 ILCS

5/12-14.1(a)(1), (b)(1) (West 1998)) was in 1998 for an assault on a 12-year-old girl. People v.

Rhoades, No. 4-98-0752 (2000) (unpublished order under Illinois Supreme Court Rule 23). In

that case, defendant admitted penetrating the vagina of the 12-year-old victim with his finger.

Defendant was 19 years old at the time of the prior offense. In the same case, defendant was also

convicted of two counts of criminal sexual assault (720 ILCS 5/12-13(a)(1), (b)(1) (West 1998))

for having intercourse with two other teenage girls (one girl was 13 years old and the other was

14 years old). Defendant was in prison until May 2005, first at Shawnee Correctional Center and

then at Big Muddy River Correctional Center, where he received in-house sexual offender



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treatment. The charged offenses in this case occurred after he had received sexual offender

treatment while in prison.

¶6             In March 2016, the trial court found defendant guilty of both predatory criminal

sexual assault and aggravated criminal sexual abuse. In June 2016, the court imposed the

statutorily mandated life sentence for predatory criminal sexual assault pursuant to section 11­

1.40(b)(2) of the Criminal Code (720 ILCS 5/11-1.40(b)(2) (West 2016)). The court sentenced

defendant to a 12-year consecutive sentence for aggravated criminal sexual abuse.

¶7             This appeal followed.

¶8                                         II. ANALYSIS

¶9             Because Illinois has abolished the death penalty, defendant argues section 11­

1.40(b)(2) of the Criminal Code (720 ILCS 5/11-1.40(b)(2) (West 2016)) is facially

unconstitutional, violating the eighth amendment (U.S. Const., amend. VIII) by mandating the

harshest sentence allowed under Illinois law, a natural life sentence, for a non-homicide offense,

i.e. predatory criminal sexual assault. Section 11-1.40 states in relevant part:

                       “(b) Sentence.

                                                ***

                               (2) A person who has attained the age of 18 years at the time of the

               commission of the offense and who is convicted of a second or subsequent

               offense of predatory criminal sexual assault of a child *** shall be sentenced to a

               term of natural life imprisonment. The commission of the second or subsequent

               offense is required to have been after the initial conviction for this paragraph

               (2) to apply.” 720 ILCS 5/11-1.40(b)(2) (West 2016).

Defendant argues the mandatory life sentence violates the principle of proportionality and the



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eighth amendment’s ban on cruel and unusual punishment.

¶ 10           Defendant cites Graham v. Florida, 560 U.S. 48, 59 (2010), for the proposition

“[t]he concept of proportionality is central to the Eighth Amendment.” Further, defendant notes

the protections provided by the eighth amendment are viewed less through a historical

perspective than according to the evolving standards of what a maturing society deems decent.

Graham, 560 U.S. at 58. According to defendant, “the calculus involved in sentencing decisions

made when the death penalty was still on the books needs to be recalibrated in order to ensure

proportionality.” Defendant goes on to argue that “[t]o ensure proportionality in sentencing now

that Illinois has abolished the death penalty, a mandatory natural life sentence for predatory

criminal sexual assault should be prohibited.”

¶ 11           It appears defendant would concede his mandatory life sentence in this case

would not violate the eighth amendment if Illinois still had the death penalty. However, because

Illinois abolished the death penalty, defendant contends the same sentence for the same offense

now violates the eighth amendment.

¶ 12           As defendant is challenging the facial validity of the statute under which the trial

court sentenced him and not the court’s discretion in imposing the sentence, defendant’s appeal

presents an issue of law, which we review de novo. People v. Miller, 202 Ill. 2d 328, 335, 781

N.E.2d 300, 305 (2002). Statutes carry the presumption of constitutionality. People v. Lake, 2015

IL App (4th) 130072, ¶ 48, 28 N.E.3d 1036. A party challenging the constitutionality of a statute

bears the heavy burden of successfully rebutting this strong presumption. Lake, 2015 IL App

(4th) 130072, ¶ 48. Further, “[c]ourts have a duty to uphold the constitutionality of a statute

whenever reasonably possible, resolving any doubts in favor of its validity.” (Internal quotation

marks omitted.) Lake, 2015 IL App (4th) 130072, ¶ 48. A statute is unconstitutional on its face



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only if no circumstances exist where the statute could be validly applied. People v. Davis, 2014

IL 115595, ¶ 25, 6 N.E.3d 709.

¶ 13           The eighth amendment states: “Excessive bail shall not be required, nor excessive

fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const., amend. VIII.

Defendant argues his sentence is constitutionally disproportionate under the federal constitution

now that Illinois has abolished the death penalty. Conversely, the State argues the federal

constitution contains no proportionality protection citing the following language from the United

States Supreme Court, “the Eighth Amendment contains no proportionality guarantee”

(Harmelin v. Michigan, 501 U.S. 957, 965 (1991) (opinion of Scalia, J., joined by Rehnquist,

C.J.)). However, the State ignores the fact only Justice Scalia and Chief Justice Rehnquist agreed

with this statement. Justice Kennedy found the eighth amendment does include at least some

proportionality protections and the amendment’s proportionality principle applies to noncapital

sentences. Harmelin, 501 U.S. at 997 (Kennedy, J., concurring in part and concurring in

judgment, joined by O’Connor and Souter, JJ.). Justice Kennedy’s concurring opinion in

Harmelin concerning the eighth amendment’s proportionality protections has been recognized as

controlling (Graham, 560 U.S. at 59-60).

¶ 14           According to Justice Kennedy’s opinion, prior decisions of the Supreme Court

yielded some “common principles that give content to the uses and limits of proportionality

review,” including the following: (1) “the fixing of prison terms for specific crimes involves a

substantive penological judgment that, as a general matter, is properly within the province of

legislatures, not courts”; (2) “the Eighth Amendment does not mandate adoption of any one

penological theory”; (3) “marked divergences both in underlying theories of sentencing and in

the length of prescribed prison terms are the inevitable, often beneficial, result of the federal



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structure”; and (4) “proportionality review by federal courts should be informed by objective

factors to the maximum possible extent.” (Internal quotation marks omitted.) Harmelin, 501 U.S.

at 998-1000 (Kennedy, J., concurring in part and concurring in judgment, joined by O’Connor

and Souter, JJ.). Justice Kennedy noted the principles listed above inform the final principal:

“The Eighth Amendment does not require strict proportionality between crime and sentence.

Rather, it forbids only extreme sentences that are grossly disproportionate to the crime.” (Internal

quotation marks omitted.) Harmelin, 501 U.S. at 1001.

¶ 15           In Harmelin, the petitioner was sentenced to a mandatory life sentence without

the possibility of parole for possessing more than 650 grams of cocaine. Harmelin, 501 U.S. at

961 (opinion of Scalia, J.). Justice Kennedy found “[t]he severity of petitioner’s crime brings his

sentence within the constitutional boundaries established by our prior decisions.” Harmelin, 501

U.S. at 1004 (Kennedy, J., concurring in part and concurring in judgment, joined by O’Connor

and Souter, JJ.).

¶ 16           The same is true in the case before this court. As in Harmelin, the severity of

defendant’s crime in this case brings the mandatory life sentence he received within established

constitutional boundaries. The sentence he received was not grossly disproportionate to the crime

he committed. As compared to possessing a large quantity of drugs like the petitioner in

Harmelin, defendant in this case was convicted of predatory criminal sexual assault committed

on a minor who was under 13 years of age at the time of the offense. In addition, defendant had a

prior conviction for predatory criminal sexual assault on a different 12-year-old girl. After his

first conviction, defendant was in prison at Big Muddy River Correctional Center for “in-house

sex offender treatment” until May 2005. His treatment did not dissuade him from committing the

same crime after his release when he had access to another young girl.



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¶ 17           Defendant’s argument the abolishment of the death penalty in Illinois means a

mandatory life sentence for a non-homicide offense in Illinois now violates the eighth

amendment lacks merit based on Justice Kennedy’s controlling opinion in Harmelin. In

addressing the petitioner’s argument in Harmelin that the Supreme Court’s prior decisions

required “a comparative analysis between petitioner’s sentence and sentences imposed for other

crimes in Michigan [(where the petitioner was charged)] and sentences imposed for the same

crime in other jurisdictions,” Justice Kennedy stated:

               “Although Solem [v. Helm, 463 U.S. 277 (1983),] considered these comparative

               factors after analyzing ‘the gravity of the offense and the harshness of the

               penalty,’ [citation], it did not announce a rigid three-part test. In fact, Solem stated

               that in determining unconstitutional disproportionality, ‘no one factor will be

               dispositive in a given case.’ [Citations.]

                       On the other hand, one factor may be sufficient to determine the

               constitutionality of a particular sentence. Consistent with its admonition that ‘a

               reviewing court rarely will be required to engage in extended analysis to

               determine that a sentence is not constitutionally disproportionate,’ [citation],

               Solem is best understood as holding that comparative analysis within and between

               jurisdictions is not always relevant to proportionality review. The Court stated

               that ‘it may be helpful to compare sentences imposed on other criminals in the

               same jurisdiction,’ and that ‘courts may find it useful to compare the sentences

               imposed for commission of the same crime in other jurisdictions.’ [Citation.] It

               did not mandate such inquiries.




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                       A better reading of our cases leads to the conclusion that

               intrajurisdictional and interjurisdictional analyses are appropriate only in the

               rare case in which a threshold comparison of the crime committed and the

               sentence imposed leads to an inference of gross disproportionality. ***

                       The proper role for comparative analysis of sentences, then, is to validate

               an initial judgment that a sentence is grossly disproportionate to a crime. *** In

               light of the gravity of petitioner’s offense, a comparison of his crime with his

               sentence does not give rise to an inference of gross disproportionality, and

               comparative analysis of his sentence with others in Michigan and across the

               Nation need not be performed.” (Emphasis added and in original.) Harmelin, 501

               U.S. at 1004-05.

¶ 18           Accordingly, based on Justice Kennedy’s reasoning, our examination of the

eighth amendment’s proportionality protections begins with looking at whether the crime

committed and the sentence imposed leads to an inference of gross disproportionality regardless

of the sentences given for other crimes in Illinois or in other jurisdictions. As a result, the fact

Illinois no longer imposes the death penalty, making a natural life sentence without the

possibility of parole the most severe sentence allowed in Illinois for the most severe and

outrageous crime imaginable, does not mean a mandatory life sentence for a less egregious

offense than murder should automatically be deemed constitutionally disproportionate. As we

stated earlier, defendant’s sentence in this case does not lead to an inference of gross

disproportionality based on the crime for which he was convicted. As a result, we need not

compare the sentence defendant received with the sentence a murderer might receive.

¶ 19           Defendant next asserts his federal proportionality arguments are supported by the



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Illinois Supreme Court’s decision in People v. Huddleston, 212 Ill. 2d 107, 816 N.E.2d 322

(2004). We disagree. In Huddleston, the court held a mandatory life sentence for a defendant

convicted of predatory criminal sexual assault against two or more children did not violate the

proportionate penalties clause of our state constitution, which states “[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). The court noted our state

constitution does not require rehabilitative potential to be given greater weight than the

seriousness of the offense in determining a proper sentence. Huddleston, 212 Ill. 2d at 129.

According to the court’s opinion:

                      “Concern for the welfare and safety of children is reflected in various

              criminal statutes and procedural enactments based upon the victim’s age or youth.

              Our legislature has created offenses on that basis, elevated or differentiated the

              classification of existing offenses, allowed for sentence enhancement, and relaxed

              evidentiary rules. *** The sentencing provision at issue in the instant case was

              obviously intended to protect this vulnerable segment of our society from sexual

              predation by deterring would-be offenders and ensuring that those who commit

              sexual acts with multiple victims will not have the opportunity to reoffend.

                      ***

                      Commentators have recognized that, aside from any physical injury a

              child may suffer in a sexual assault, children who are sexually assaulted are

              subject to chronic psychological problems that may be even more pernicious.

              Sexual assault (rape) has been described as, ‘[s]hort of homicide, *** the

              “ultimate violation of self.” ’ [Citation.] *** Because of their emotional



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               immaturity, children are exceptionally vulnerable to the effects of sexual assault.

               [Citation.] Long-term follow-up studies with child sexual abuse victims indicate

               that sexual abuse is ‘ “grossly intrusive in the lives of children and is harmful to

               their normal psychological, emotional and sexual development in ways which no

               just or humane society can tolerate.” ’ [Citation.] The child’s life may be forever

               altered by residual problems associated with the event.” (Emphases in original.)

               Huddleston, 212 Ill. 2d at 133-35.

¶ 20           Our supreme court has stated the legislature could clearly respond to the

reasonable perception sex offenders have a substantial risk to commit additional sex offenses

after being released from prison (Huddleston, 212 Ill. 2d at 138), which is exactly what happened

in the case before us now. Statutes that provide for enhanced classification of sex offenses and/or

sentences for those offenses are a common method of protecting children. The chance an

offender will commit a sex crime against a child while incarcerated is zero because the offender

will have no access to potential victims. Further, the court noted the imposition of lengthy prison

sentences on individuals convicted of sex crimes against juveniles might deter other individuals

from committing similar acts. Huddleston, 212 Ill. 2d at 140.

¶ 21           The supreme court found it could not say the defendant’s mandatory natural life

sentence in Huddleston was “cruel, degrading, or so wholly disproportionate to the offense

committed as to shock the moral sense of the community” based on the facts in that case.

Huddleston, 212 Ill. 2d at 141.

¶ 22           We also note our supreme court does not apply a cross-comparison analysis to

determine whether a sentence violates the proportionate penalties clause found in our state

constitution. According to the court:



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               “After much reflection, we have concluded that cross-comparison analysis has

               proved to be nothing but problematic and unworkable, and that it needs to be

               abandoned. Those cases that used such an analysis to invalidate a penalty are

               overruled, and this court will no longer use the proportionate penalties clause to

               judge a penalty in relation to the penalty for an offense with different elements.”

               People v. Sharpe, 216 Ill. 2d 481, 519, 839 N.E.2d 492, 515-16 (2005).

¶ 23           We further note the mandatory natural life sentence defendant, who was an adult,

received does not constitute “unusual” punishment under the eighth amendment. According to

the Supreme Court in Harmelin:

               “Severe, mandatory penalties may be cruel, but they are not unusual in the

               constitutional sense, having been employed in various forms throughout our

               Nation’s history. *** There can be no serious contention, then, that a sentence

               which is not otherwise cruel and unusual becomes so simply because it is

               ‘mandatory.’ ” Harmelin, 501 U.S. at 994-95.

¶ 24           The Supreme Court noted it had held “a capital sentence is cruel and unusual

under the Eighth Amendment if it is imposed without an individualized determination that that

punishment is ‘appropriate’—whether or not the sentence is ‘grossly disproportionate.’ ”

Harmelin, 501 U.S. at 995. However, the Court declined to extend this individualized

determination requirement to mandatory life sentences for adults. Harmelin, 501 U.S. at 995. As

a result, the defendant’s mandatory life sentence in Harmelin did not constitute a cruel and

unusual punishment under the eighth amendment and neither does the mandatory nature of

defendant’s life sentence in this case.

¶ 25           In closing, we recognize the United States Supreme Court has stated the concept



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of proportionality central to the eighth amendment is viewed less through a historical perspective

but instead according to “the evolving standards of decency that mark the progress of a maturing

society.” (Internal quotation marks omitted.) Graham, 560 U.S. at 58. Further, we acknowledge

it may be argued the legislature’s decision to abolish the death penalty in even the most heinous

murder cases reflects the evolving standards of decency that mark the progress of our maturing

society. However, we are not persuaded it logically follows the legislature’s decision to leave in

place a mandatory life sentence for a sexual predator fails to reflect or in some way offends those

same societal standards. Section 11-1.40(b)(2) of the Criminal Code (720 ILCS 5/11-1.40(b)(2)

(West 2016)) is not unconstitutional on its face.

¶ 26                                   III. CONCLUSION

¶ 27           For the reasons stated, we affirm defendant’s conviction and sentence in this case.

As part of our judgment, we award the State its $50 statutory assessment against defendant as

costs of this appeal. 55 ILCS 5/4-2002(a) (West 2016).

¶ 28           Affirmed.




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