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                                Appellate Court                            Date: 2019.01.02
                                                                           14:50:28 -06'00'




                  People v. Cetwinski, 2018 IL App (3d) 160174



Appellate Court     THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption             EDWARD R. CETWINSKI, Defendant-Appellant.



District & No.      Third District
                    Docket No. 3-16-0174



Filed               October 26, 2018



Decision Under      Appeal from the Circuit Court of Will County, No. 10-CF-1918; the
Review              Hon. Amy M. Bertani-Tomczak, Judge, presiding.



Judgment            Affirmed.


Counsel on          James E. Chadd, Peter A. Carusona, and Andrew J. Boyd, of State
Appeal              Appellate Defender’s Office, of Ottawa, for appellant.

                    James W. Glasgow, State’s Attorney, of Joliet (Patrick Delfino, David
                    J. Robinson, and Nicholas A. Atwood, of State’s Attorneys Appellate
                    Prosecutor’s Office, of counsel), for the People.



Panel               PRESIDING JUSTICE CARTER delivered the judgment of the court,
                    with opinion.
                    Justice Lytton concurred in the judgment and opinion.
                    Justice Wright specially concurred, with opinion.
                                             OPINION

¶1       Defendant, Edward R. Cetwinski, appeals following his conviction for criminal sexual
     assault and aggravated criminal sexual abuse. He argues that certain comments from the
     circuit court made during jury instructions served to hasten the jury’s verdict. He also argues
     that the Illinois statutory scheme of lifetime penalties to which convicted sex offenders are
     subjected is unconstitutional as applied to him. We affirm.

¶2                                               FACTS
¶3       The State charged defendant with one count of criminal sexual assault (720 ILCS
     5/12-13(a)(4) (West 2010)) and two counts of aggravated criminal sexual abuse (id.
     § 12-16(d)).
¶4       Prior to trial, the defense arranged for defendant to be examined by a licensed clinical
     professional counselor. The resulting report listed a number of “Identified Risk Factors,” and
     many more “Factors Mitigating Risk.” The cover letter to the report also noted that the
     results of two diagnostic tests indicated defendant was a low risk to reoffend, though the
     actual test results were not included in the report. The report variously described defendant as
     dominant, narcissistic, obsessive, and immature, concluding that “[defendant’s] testing
     indicates very severe character pathology. He has deeply ingrained dysfunctional personality
     patterns.”
¶5       The report also contained a number of caveats; for example, it noted:
                  “Such a severe ‘fake good’ response set exists that test findings are of
             questionable validity as [defendant] minimized pathology and presented himself in an
             unrealistically positive manner. While this minimization is probably conscious, such
             responses may also be a direct result of [defendant’s] pathology. Test findings are
             presented to indicate how [defendant] wishes others to view him and may not be an
             accurate reflection of his true clinical picture.”
     The report also indicated that “[f]urther clinical verification is needed to assist in the
     interpretation of test findings in light of [defendant’s] unique history and present
     circumstances.” Additionally, the report noted that the nature of the testing might tend to
     deemphasize defendant’s strengths and that use of the results for purposes other than clinical
     screening could be “misleading.” The court denied the defense’s request to introduce the
     report into evidence, pointing out that the risk of recidivism would be irrelevant at trial.
¶6       On December 2, 2015, the case proceeded to a jury trial. At trial, S.G. testified that she
     was born in 1994 and was a sophomore at Lincoln-Way Central High School (Lincoln-Way
     Central) from the fall of 2009 through the spring of 2010. That school year, she participated
     on the school bowling team. Defendant was one of the team’s assistant coaches. She referred
     to him as “Coach Ed.”
¶7       S.G. testified that she and defendant initially exchanged phone numbers so that he could
     help her get her bowling ball redrilled. They began sending text messages to one another
     after Christmas in 2009, approximately midway through the bowling season. At first, their
     text messages were only about bowling and coaching. Eventually, S.G. testified, they began
     “[s]ending dirty texts to each other.” S.G. testified that the text messages eventually escalated
     into a physical relationship. She testified that she and defendant had sexual contact on two

                                                 -2-
       occasions. S.G. recalled being interviewed at the child advocacy center. She admitted that
       she told the interviewer that they had only had sexual contact once. At trial, S.G. explained:
       “I was scared and nervous and I didn’t want to talk to anybody about it and I smashed it
       together.”
¶8         S.G. testified that the first incident of sexual contact occurred when defendant gave her a
       ride home after a bowling tournament. S.G. recalled that on the way home, defendant parked
       at a bus barn in Manhattan and kissed her. S.G. testified that defendant then put his fingers
       inside her vagina. Defendant then drove her home.
¶9         The second incident of sexual contact also occurred when defendant was driving S.G.
       home. Defendant again parked by the bus barn and kissed S.G. This time, S.G. testified,
       defendant asked her to move to the backseat. S.G. did so, moving to the middle of the back
       bench of defendant’s van. She testified that defendant knelt in front of her, put his fingers in
       her vagina, then put his mouth on her vagina. Defendant indicated to S.G. that he was about
       to ejaculate, which S.G. took as the reason they did not engage in full intercourse on that
       occasion.
¶ 10       Steve Provis, the principal at Lincoln-Way Central, testified that defendant’s daughter,
       N.C., and another student approached him on September 10, 2010. Based on that
       conversation, Provis and another school official spoke to S.G., who indicated that she had
       been involved in sexual activity with defendant. Provis brought in the school resource
       officer, who in turn contacted the Manhattan Police Department.
¶ 11       Thomas Friddle testified that he was a detective with the Manhattan Police Department
       on September 10, 2010, the day he was notified of S.G.’s allegations. As part of his
       investigation, Friddle interviewed defendant, along with Officer Christopher Spencer. A
       video recording of that interview was played for the jury.
¶ 12       In the interview, defendant confirmed that he was born in 1969 and that he has been an
       assistant coach for the Lincoln-Way Central girls bowling team the previous season.
       Defendant told Friddle that in December 2009 he gave S.G. a ride home after a bowling
       tournament. Defendant initially stated that nothing unusual occurred on the ride home. He
       denied ever making a sexual advance or attempting to kiss S.G. Defendant admitted that he
       and S.G. exchanged occasional text messages but denied that they were sexual in nature.
¶ 13       Friddle informed defendant that investigators would be able to retrieve old text messages,
       even if they had been deleted. Defendant then admitted that S.G. had sent him text messages
       that had been sexually explicit. He engaged in sexual role-playing via text message with her.
       Some of the role-playing involved being in his van. Defendant continued to deny that he ever
       had physical contact with S.G. of any kind.
¶ 14       Friddle and Spencer pressed defendant to be honest with them. Defendant asked what
       would happen to him if he was. Spencer replied:
               “[M]y report and Officer [Friddle’s] report are going to reflect everything that
               happened here today, okay; and when it gets time—if it gets that far—for somebody
               to get the consequences for their actions, all that stuff is taken in to consideration. Do
               you follow me?”
       Friddle assured defendant that “[s]exting” with a minor and having physical sexual contact
       with a minor were “[b]asically the same thing.” Defendant then admitted that on the night he
       drove S.G. home, he parked the van and they began kissing. He touched her under her shirt,


                                                   -3-
       then they moved to the back of his van. Defendant told the investigators that he performed
       oral sex on S.G. but did not engage in sexual intercourse because he “prematurely finished.”
       Defendant later provided a written statement acknowledging that he had performed oral sex
       on S.G.
¶ 15       Defendant’s father, Joseph Cetwinski, testified for the defense. He testified that he and
       defendant were assistant coaches for the girls bowling team in the 2009-10 season. Joseph,
       defendant, and N.C., would always drive together to the school before bowling events, except
       for one time. Joseph recalled on that one occasion, defendant informed him that S.G. needed
       a ride. Joseph drove to the school with N.C. that day. Defendant took S.G. home after the
       meet ended. Joseph testified that nothing unusual happened that evening when defendant
       returned from taking S.G. home.
¶ 16       Michele Stultz, defendant’s girlfriend, testified that in September 2010, N.C. informed
       her that rumors regarding defendant were spreading at school. Stultz informed defendant,
       who instructed Stultz to tell N.C. to talk to the school principal. Stultz relayed the instruction
       to N.C.
¶ 17       N.C., defendant’s daughter, testified that in September 2010, her friends informed her
       that S.G. was bragging about sleeping with defendant. N.C. told Stultz because defendant
       was in Missouri at the time. On Stultz’s advice, N.C. told Provis of the rumors. N.C. also
       testified that a few days after she went to the principal, she overheard S.G. in the hallway
       saying that “she made it all up, she was just trying to be part of the popular kids who all had
       older boyfriends and did stuff with them.” On cross-examination, N.C. agreed that twice
       during the bowling season she and Joseph drove to and from school for bowling meets
       without defendant. N.C. did not contact school authorities or the police when she overheard
       S.G. state that she “made it all up.”
¶ 18       Defendant testified that S.G. sent him flirtatious or sexual related text messages and that
       he responded. Defendant admitted that on one occasion during the bowling season, S.G.
       asked him for a ride to school for the meet. Defendant picked S.G. up at her house and drove
       her to the school. After the meet, he drove her home. He never stopped at a bus barn and did
       not try to kiss S.G. They did not go into the back of his van, and he did not perform oral sex
       on her. He never did anything physically sexual with S.G.
¶ 19       At some point in 2010, defendant was in Missouri when he received a phone call from
       Stultz regarding the present allegations. Defendant told Stultz to instruct N.C. to talk to the
       school principal. When defendant returned from Missouri, he had a “brief conversation” with
       N.C. in which she told him that she had gone to the principal’s office.
¶ 20       Defendant recalled going to the Manhattan Police Department to be interviewed by
       Friddle and Spencer. Defendant testified that as he walked to the interview room, he
       overhead Friddle and Spencer engaging in “a conversation about an incident that had
       happened with somebody having a premature ejaculation during a sexual event.” Defendant
       thought that description “sounded pretty similar” to what he had heard from N.C. Regarding
       the interview, defendant explained that he admitted to doing something that he did not
       actually do. Defendant continued:
                “I’ve never been in a situation such as that before and I was very nervous. And I was
                under the assurance that if I told them details of an incident that happened I would be
                able to go home that evening and that they would work with me. So I just told them
                what I had already heard prior to coming in.”

                                                   -4-
¶ 21        On cross-examination, defendant testified that he was a high school graduate and was
       currently enrolled in college. He was 41 years old at the time of his interview at the police
       station and considered himself to be of above-average intelligence. Defendant signed his
       written statement approximately 2½ hours after arriving at the police station, though, he
       testified, it felt like much longer. There were two breaks in the interview.
¶ 22        Sheri Krohn testified in rebuttal that she was the bus driver for all of the bowling team’s
       meets and tournaments during the 2009-10 season. At one meet, she noticed S.G. wearing
       defendant’s jacket and “following him around a lot.” She told defendant to “be careful
       because [S.G.] had a crush on him.”
¶ 23        The State also recalled Friddle on rebuttal. Friddle denied having any conversation with
       defendant or Spencer regarding the investigation while the three men were together just prior
       to the interview.
¶ 24        Following closing arguments, the court tendered instructions to the jury. The court
       explained that the jury would eat lunch in the jury room and select a foreperson prior to
       commencing deliberations. After conferring with the attorneys, the court continued:
                “Okay. All right. I wanted to talk with the attorneys. I know that some of you want to
                go outside for a few minutes. So the agreement is that before you do anything you are
                going to go outside, have your cigarette, and that’s okay, because once you get in
                there you can’t leave. And once you start deliberating, you can’t leave. So that is what
                will happen. Those who want to go out and have a cigarette, go ahead. And then
                when you come back to the room, you are not allowed to leave after that. Let’s see,
                it’s ten to three now. Make sure you are back in by 3:00 ***. So make sure everybody
                is back in there at three to start your deliberations. If you are out there smoking, you
                cannot talk about the case. *** Just simply enjoy your tobacco and come back,
                okay?”
¶ 25        The jury found defendant guilty on all counts. The signed verdict forms were
       file-stamped December 7, 2015, 4:55 p.m.1
¶ 26        Defendant subsequently filed a motion for new trial. In the motion, defendant argued,
       inter alia, that “the jury failed to give proper weight and/or deference to the task of
       deliberating.” In support of this argument, defendant alleged that the jury had been released
       for deliberations at 3 p.m., “following a brief, Court-permitted smoke break,” and that
       defense counsel received a phone call from the court clerk at 4:10 p.m. notifying him that the
       jury had reached a verdict. The court denied defendant’s motion.
¶ 27        On January 26, 2016, the court sentenced defendant to a term of six years’ imprisonment
       for criminal sexual assault and four years’ probation for aggravated criminal sexual abuse.
       The court noted that defendant would also be subject to mandatory reporting as a sex
       offender upon his release.

¶ 28                                          ANALYSIS
¶ 29       On appeal, defendant argues that the circuit court’s comments regarding the jurors’
       ability to leave the room while deliberating served to hasten the jury’s verdict, thus denying
       defendant a fair trial. He also argues that the statutory scheme of lifetime penalties for a

          1
           Jury deliberations began on December 7.

                                                     -5-
       convicted sex offender in Illinois is unconstitutional as applied to him.

¶ 30                                       I. Jury Deliberations
¶ 31       Defendant first contends that the circuit court’s repeated admonitions that the jury would
       not be able to leave the jury room once it began deliberating served to hasten the verdict.
       Defendant urges that this conclusion is bolstered by the relatively brief period in which the
       jury actually deliberated.2
¶ 32       It is improper for the circuit court to deliver any message or instruction to the jury that
       might have the effect of hastening the verdict. People v. Golub, 333 Ill. 554, 561 (1929).
       “The test is whether, under the circumstances, the language used by the court actually
       coerced or interfered with the deliberations of jurors to the prejudice of a defendant.” People
       v. Foster, 394 Ill. App. 3d 163, 166-67 (2009).
¶ 33       Initially, defendant concedes that he failed to properly preserve this issue for appeal.
       However, he invites this court to relax the forfeiture rules under the Sprinkle doctrine. In
       Sprinkle, our supreme court held that forfeiture rules may be relaxed as to issues of the
       circuit court’s conduct, where a contemporaneous objection would be unavailing or even
       harmful to a defendant’s case. People v. Sprinkle, 27 Ill. 2d 398, 400-01 (1963). The supreme
       court has since explained that “Sprinkle was primarily concerned with the risk of alienating
       the jury by appearing disrespectful of the court’s authority.” People v. McLaurin, 235 Ill. 2d
       478, 487 (2009). The Sprinkle doctrine has also been applied in select contexts where, even
       in the absence of a jury, an objection would likely “ ‘have fallen on deaf ears.’ ” Id. at 488
       (quoting People v. Davis, 378 Ill. App. 3d 1, 10 (2007)).
¶ 34       The logic underlying Sprinkle must be weighed against the strong policy in favor of
       preserving errors for review. The McLaurin court emphasized this point, noting that
       “[f]ailure to raise claims of error before the trial court denies the court the opportunity to
       correct the error immediately and grant a new trial if one is warranted, wasting time and
       judicial resources.” Id. Based on this policy, the McLaurin court recognized that the
       relaxation of forfeiture had rarely been invoked in noncapital cases, and that such relaxation
       is appropriate “only under extraordinary circumstances.” Id.
¶ 35       We decline to apply the Sprinkle doctrine in the present case. Had defense counsel felt
       that the court’s comments were in error, he could easily have requested a brief sidebar once
       those comments had concluded. This would have provided the court an opportunity to
       reconsider its remarks and, if the court found it necessary, issue additional instructions
       emphasizing that the jurors should be under no rush. It is difficult to envision how pursuing
       this course of action would have undermined defense counsel’s credibility in the eyes of the
       jury, and defendant has provided no explanation for why such an objection would have fallen
       on deaf ears. See id. Not only did counsel’s failure to object deprive the court of an
       opportunity to potentially issue corrective instructions, his failure to raise the issue in the
       motion for new trial deprived the court of an opportunity to grant a new trial. While that

           2
             Defendant asserts that the jury deliberated for 1 hour and 10 minutes before reaching a verdict. The
       only source for this calculation is defense counsel’s own assertion found in the motion for new trial.
       The file-stamped jury forms indicate that deliberations took, at the very most, 1 hour and 55 minutes. In
       any event, the jury’s deliberations may safely be characterized as relatively brief, and the outcome of
       this appeal does not turn on the precise number of minutes elapsed.

                                                       -6-
       motion did reference the jury’s short deliberation period, it did not claim any error based on
       the circuit court’s remarks, as defendant argues on appeal.
¶ 36       Because we decline to relax forfeiture principles in this case, we review defendant’s
       claim for plain error. The first step in any plain error analysis is to determine whether any
       error was committed. People v. Piatkowski, 225 Ill. 2d 551, 565 (2007). We acknowledge
       that the parties dispute whether this court should apply a de novo or an abuse of discretion
       standard of review. We need not settle that dispute because, under either standard, it is clear
       that the circuit court committed no error in its comments.
¶ 37       Defendant insists that the court’s comments implied that the members of the jury would
       be forced to remain in the jury room, without exception, until they reached a verdict. In
       essence, the defendant argues, the jury would be trapped in the room. This interpretation is
       simply not tenable when taking the court’s remarks in context. We find it is unlikely that any
       juror would take those comments to mean that they would be confined in the jury room
       against their will.
¶ 38       An examination of the court’s full remarks makes clear that the court was specifically
       addressing any jurors that wished to have a cigarette before deliberations began, as it
       referenced smoking or tobacco four times within those brief remarks. The court was merely
       informing the jurors that they would be afforded no smoking breaks after deliberations had
       begun. Defendant insists that the court “did not restrict its direction to the smokers.” Yet the
       court clearly prefaced its smoking-related instructions by stating “I know that some of you
       want to go outside for a few minutes.” Short of physically separating the smokers from the
       nonsmokers, it is unclear what steps defendant would have had the court take to address the
       smokers.
¶ 39       Indeed, the court’s innocuous smoking restriction in the present case is a far cry from the
       example of the egregious treatment of a jury in the late seventeenth century, a formative
       period in the common law with respect to jury control. In the famous trial of William Penn
       and William Mead, the court repeatedly refused to accept a verdict with which it did not
       agree. The court instructed the jury:
               “Gentlemen, you shall not be dismissed till we have a verdict that the court will
               accept; and you shall be locked up, without meat, drink, fire, and tobacco; you shall
               not think thus to abuse the court; we will have a verdict, by the help of God, or you
               shall starve for it.” Trial of Penn and Mead (1670) 6 How. 951, 963.
       The jurors in that case were only able to escape their detention after requesting the Court of
       Common Pleas to issue a writ of habeas corpus. Bushell’s Case (1729) 84 Eng. Rep. 1123; 6
       How. 999 (Common Pleas) (a seminal case discussing the role of jurors and establishing the
       principle of jury nullification).3 While the Penn court’s actions were objectionable even in

           3
            As a matter of historical background, some of the jurors in Penn and Mead’s case, after having
       won their discharge from custody via habeas corpus, attempted to sue the judge (the Recorder of
       London) and other officials responsible for their incarceration for false imprisonment. Each time, their
       attempts were rejected by the English courts. Hamond Against Howell (1796) 86 Eng. Rep. 816; 1 Mod.
       184 (Common Pleas); Bushell’s Case (1796) 86 Eng. Rep. 777; 1 Mod. 119 (King’s Bench); Hamond
       Against Howell (1793) 86 Eng. Rep. 1035; 2 Mod. 218 (Common Pleas 1678). This line of cases
       provided an early statement of the now well-settled tenet of judicial immunity that states, generally, a
       private action may not be commenced against a judge “for what they should do in execution of their

                                                      -7-
       1670, an echo of the trial judge’s sentiments could still be found in Illinois law in the
       nineteenth century. An 1845 law required that an officer be sworn to attend to the jury and
       “keep them together without meat or drink, water excepted, unless by leave of the court, until
       they shall have agreed upon their verdict.” Ill. Rev. Stat. 1845, ch. 30, § 189;4 see also East
       St. Louis Connecting Ry. Co. v. Eggmann, 71 Ill. App. 32, 35 (1897) (“If the court had kept
       the jury out until it convened the next morning, ‘without meat or drink, fire or light,’ as in
       William Penn’s case, what good would it have done?”). Against this historical backdrop, it is
       difficult to discern how the jury’s limitation to but a single smoking break in the present case
       could have been of any legal import.
¶ 40       In responding to the State’s assertion that the court was merely addressing the smokers,
       defendant briefly contends: “[t]hat instruction would have put a great deal of pressure on the
       jurors who were addicted to nicotine to quickly arrive at a verdict.” This lone sentence,
       unsupported by case law or facts of records, is the extent of defendant’s argument on that
       particular point. Notably, the supreme court of Ohio has rejected that very argument, writing:
               “[The defendant’s] claim that this juror suffered from nicotine withdrawal is totally
               speculative. The simple request, ‘can we smoke?’ does not indicate any type of
               emergency. There is no support in the record for [the defendant’s] claim that the juror
               who wished to smoke was under any additional stress occasioned by ‘mentally
               wanting, and physically needing to smoke tobacco.’ ” State v. Elmore, 111 Ohio St.
               3d 515, 2006-Ohio-6207, 857 N.E.2d 547, ¶ 94.
       Defendant’s argument here is similarly speculative.
¶ 41       Because we find no error, there can be no plain error. However, we write further to point
       out that even if the circuit court’s comments could be construed as error, defendant has failed
       to demonstrate second-prong plain error. In People v. Thompson, 238 Ill. 2d 598, 614 (2010),
       our supreme court found that the circuit court’s failure to properly admonish a jury of the
       Zehr principles (People v. Zehr, 103 Ill. 2d 472 (1984)) would amount to a second-prong or
       structural error only where that failure resulted in a biased jury. Noting that the defendant had
       the burden of persuasion in plain error analysis, the court rejected the defendant’s plain error
       argument on the grounds that he had “not presented any evidence that the jury was biased in
       this case.” Thompson, 238 Ill. 2d at 614.

       office” even if in error. Hamond Against Howell (1796) 86 Eng. Rep. 816, 817; 1 Mod. 184, 185; see
       also Hamond Against Howell (1793) 86 Eng. Rep. 1035, 1036-37; 2 Mod. 218, 220-21 (“But the whole
       Court were of opinion, that the bringing of [the juror’s] action was a greater offence than the fining of
       [the juror], *** and that it was a bold attempt both against the Government and justice in general.”); see
       also, e.g., Floyd and Barker, (1572) 77 Eng. Rep. 1305 (Star Chamber) (holding that a judge could not
       be prosecuted in another court for an alleged criminal conspiracy in his handling of a murder trial);
       Case of the Marshalsea, (1572) 77 Eng. Rep. 1027, 1028 (King’s Bench) (no immunity when the court
       was without jurisdiction); Pulliam v. Allen, 466 U.S. 522, 549 (1984) (“It has long been recognized at
       common law that judicial immunity protects only those acts committed within the proper scope of a
       judge’s jurisdiction, but provides no protection for acts committed in excess of jurisdiction.”). The
       holding in Pulliam was abrogated in part by the Federal Courts Improvement Act of 1996, Pub. L. No.
       104-317, § 309(c), 110 Stat. 3847, 3853 (codified at 42 U.S.C. § 1983 (2000)).
           4
             The present version of this statute requires only that “[w]hen the jury retires to consider its verdict
       an officer of the court shall be appointed to keep them together and to prevent conversation between the
       jurors and others.” 725 ILCS 5/115-4(l) (West 2016).

                                                        -8-
¶ 42       While the error contemplated in Thompson is surely different from that in question here,
       we find the case to be analogous. A finding that the verdict in defendant’s case was produced
       by a jury that believed it was strictly confined to a room until such time as it delivered a
       verdict would undoubtedly constitute second-prong plain error, as it would undermine
       defendant’s right to a fair trial and challenge the integrity of the judicial process. But even if
       the circuit court’s comments could be construed as giving that impression, defendant has
       presented no evidence that the verdict was actually hastened.
¶ 43       Initially, the demonstration of such an effect is an especially high hurdle in cases
       concerning a court’s initial, predeliberation instructions to a jury. Reflecting this point,
       reversible error for hastening the verdict has been exclusively found in the case of comments
       made in the middle of a jury’s deliberations. For example, in People v. Friedman, 144 Ill.
       App. 3d 895, 903-04 (1986), the jurors deliberated for four hours before the circuit court
       informed them that overnight accommodations for sequestration would soon be made. The
       jury returned a verdict five minutes later, and the reviewing court found that the verdict had
       been improperly hastened. Similarly, in People v. Branch, 123 Ill. App. 3d 245, 250 (1984),
       the jury deliberated for 4½ hours before informing the court that it was deadlocked. The
       court addressed the jury, referencing the possibility of sequestration, and a verdict was
       delivered 10 minutes later. Again, the reviewing court found reversible error. Even in the
       foundational cases for this particular point of law—Farnham v. Farnham, 73 Ill. 497, 502
       (1874), and Golub, 333 Ill. at 561—at issue were comments made in the middle of
       deliberations; even then, both courts found no reversible error. Defendant has failed to cite a
       single case—and this court is unaware of any—in which hastening the verdict was found to
       be a reversible error based upon the circuit court’s initial instructions to the jury.
¶ 44       In cases concerning intradeliberational instructions, the effect on the jury may be easily
       measured by comparing the time spent deliberating before the instruction to the time spent
       deliberating after, as did the courts in Friedman and Branch. In this case, defendant only
       cites to the relatively short period in which the jury deliberated as evidence of a hastened
       verdict. However, as the Ramos court pointed out, claiming the deliberation period as
       probative evidence of haste is problematic:
                    “Defendant points to the duration of the deliberations to support a hastening
               influence by the trial judge. Yet, one could just as reasonably conclude that the
               verdict was hastened by the significant and compelling evidence of defendant’s guilt.
               We do not perceive it is our place to determine what is the proper duration of time for
               deliberations. Moreover, defendant’s argument presents a logical fallacy of the
               post hoc ergo propter hoc variety we are not prepared to credit. In effect, defendant
               contends, because the deliberations were—in his view—short or hasty, they were
               hastened by the remarks of the trial judge. We disagree with the premise and the
               conclusion.” People v. Ramos, 396 Ill. App. 3d 869, 881 (2009).
¶ 45       We would reach the same conclusion here. Given the significant and compelling
       evidence against defendant—including a video recording of his own confession—it is
       perfectly plausible, if not expected, that the jury could reach a prompt verdict. The circuit
       court’s remarks that the jury would not be afforded multiple smoking breaks were not
       improper, and the understandably prompt verdict is not evidence that the jury reached its
       verdict under any form of duress.


                                                   -9-
¶ 46                     II. Constitutionality of Sex Offender Statutory Scheme
¶ 47       Defendant next argues that the statutory scheme of lifetime penalties to which he is
       subject as a convicted sex offender and sexual predator is unconstitutional as applied to him
       on the grounds that it violates the United States Constitution’s prohibition of cruel and
       unusual punishment (U.S. Const., amend. VIII) and the Illinois Constitution’s proportionate
       penalties clause (Ill. Const. 1970, art. I, § 11).
¶ 48       Importantly, defendant challenges the constitutionality of several statutes pertaining to
       convicted sex offenders, rather than a single statute. The primary piece of that statutory
       scheme is the Sex Offender Registration Act (SORA) (730 ILCS 150/1 et seq. (West 2016)),
       which, inter alia, acts to classify defendant as a sexual predator and imposes a lifelong duty
       to register. The statutory scheme also includes the Sex Offender Community Notification
       Law (Notification Law) (730 ILCS 152/101 et seq. (West 2016)), as well as dispersed
       statutory sections prohibiting sex offenders’ presence in or around schools and parks (720
       ILCS 5/11-9.3 (West 2016)), prohibiting sex offenders’ petition for a name change (735
       ILCS 5/21-101(b) (West 2016)), and requiring sex offenders to renew their driver’s license
       annually (730 ILCS 5/5-5-3(o) (West 2016)).

¶ 49                                           A. Punishment
¶ 50       The eighth amendment to the United States Constitution prohibits the imposition of
       “cruel and unusual punishments.” U.S. Const., amend. VIII. “The concept of proportionality
       is central to the Eighth Amendment.” Graham v. Florida, 560 U.S. 48, 59 (2010). The
       proportionate penalties clause of the Illinois Constitution dictates 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. Both constitutional
       provisions explicitly reference punishment or penalties. Thus, the first step in a constitutional
       challenge under these provisions is to determine whether the statute—or, in this case,
       statutes—actually impose a punishment or penalty that would be subject to constitutional
       restrictions.
¶ 51       In 2000, our supreme court concluded that neither SORA nor the Notification Law
       constituted punishment such that they implicated the eighth amendment or the proportionate
       penalties clause. People v. Malchow, 193 Ill. 2d 413, 421, 424 (2000). However, the statutory
       scheme has been amended numerous times since Malchow, with additional requirements and
       restrictions placed upon sex offenders. Defendant contends that the exponential growth of the
       statutory scheme renders the Malchow decision stale and argues that this court should
       conduct a new inquiry into whether that statutory scheme is now punitive in nature.
¶ 52       Recently, this court in People v. Tetter, 2018 IL App (3d) 150243, ¶ 45, described the
       post-Malchow evolution of SORA:
                “[The legislature has] imposed specific restrictions on where sex offenders may be
                present or live. See 720 ILCS 5/11-9.3, 11-9.4-1 (West 2012). Sex offenders cannot
                have jobs where they work, at any time for any reason, within 500 feet of a school or
                public park or within 100 feet of a school bus stop. Id. SORA also effectively bars
                offenders from working any job requiring extensive travel; sex offenders must notify,
                in person, both Illinois law enforcement and the destination’s law enforcement when
                they are away from home for three or more days. 730 ILCS 150/3(a) (West 2012).
                The amendments since Malchow ‘directly restrict where [a sex offender] can live,

                                                   - 10 -
                work, and even move about his community.’ People v. Avila-Briones, 2015 IL App
                (1st) 132221, ¶ 51. Thus, we are faced with very different and more restrictive
                statutes than those addressed in Malchow ***.”
       More recently, in People v. Kochevar, 2018 IL App (3d) 140660, ¶ 56, a different panel of
       our court concluded that the court’s duty to reevaluate challenged legislation “is triggered in
       a situation such as this in which a claim has been raised that statutes deemed civil and
       regulatory appear to have evolved and become penal.”
¶ 53        In turn, both the Tetter and Kochevar courts embarked on sweeping analyses of whether
       the statutory scheme, as presently constituted, qualifies as punishment triggering eighth
       amendment and proportionate penalty clause restrictions. Tetter, 2018 IL App (3d) 150243,
       ¶¶ 47-69; Kochevar, 2018 IL App (3d) 140660, ¶¶ 56-63. As part of that analysis, the Tetter
       court pointed out that several other states have recently found that sex offender registration
       statutes do constitute punishment. Tetter, 2018 IL App (3d) 150243, ¶ 69 (citing Doe v.
       Department of Public Safety & Correctional Services, 62 A.3d 123 (Md. 2013), Gonzalez v.
       State, 980 N.E.2d 312, 321 (Ind. 2013), Starkey v. Oklahoma Department of Corrections,
       2013 OK 43, 305 P.3d 1004, State v. Letalien, 2009 ME 130, 985 A.2d 4, State v. Williams,
       129 Ohio St. 3d 344, 2011-Ohio-3374, 952 N.E.2d 1108, and Commonwealth v. Baker, 295
       S.W.3d 437 (Ky. 2009)). Ultimately, the Tetter court concluded: “Although the sex offender
       statutes’ restrictions may present fair and just punishment in many or most cases, they
       nonetheless constitute punishment. Most notably, sex offender statutes punish sex offenders
       by restricting their liberty to live where they wish and move about the community.” Id.
       Applying the same analysis, the Kochevar court reached the same conclusion, finding that
       “the sex offender statutory scheme has morphed from civil regulation into something that is
       indeed punitive.” Kochevar, 2018 IL App (3d) 140660, ¶ 63.
¶ 54        The analyses in Tetter and Kochevar were exhaustive, and they obviate the need for a
       third panel of this court to submit its own unique opinion on the matter. We wholly adhere to
       the logic and conclusions set forth in Tetter and Kochevar and find that statutory scheme of
       lifetime penalties to which sex offenders are subjected constitutes punishment under the
       eighth amendment and proportionate penalties clause. We now address whether this
       defendant’s punishment is unconstitutionally disproportionate as applied to him.

¶ 55                                         B. Proportionality
¶ 56       The eighth amendment prohibition on cruel and unusual punishment “ ‘forbids only
       extreme sentences that are grossly disproportionate to the crime.’ ” (Internal quotation marks
       omitted.) Graham, 560 U.S. at 60 (quoting Harmelin v. Michigan, 501 U.S. 957, 997,
       1000-01 (1991) (Kennedy, J., concurring in part and concurring in the judgment, joined by
       O’Connor and Souter, JJ.)). Similarly, a challenge brought under the proportionate penalties
       clause “contends that the penalty in question was not determined according to the seriousness
       of the offense.” People v. Sharpe, 216 Ill. 2d 481, 487 (2005). At least in this regard, the
       proportionate penalties clause is synonymous with the eighth amendment’s cruel and unusual
       punishment clause. Id. at 517.
¶ 57       In Tetter, this court found, as a matter of first impression, that a proportionality challenge
       to the statutory scheme applicable to sex offenders is best addressed under the three-factor
       inquiry set forth in Solem v. Helm, 463 U.S. 277, 290-92 (1983). Tetter, 2018 IL App (3d)
       150243, ¶ 73; see also Kochevar, 2018 IL App (3d) 140660, ¶ 64 (applying the same test).

                                                   - 11 -
       We adhere to that conclusion and adopt the same approach here. We begin by considering the
       gravity of the offense in conjunction with the harshness of the penalty. Solem, 463 U.S. at
       290-91. We then consider whether “more serious crimes are subject to the same penalty or to
       less serious penalties” as an indication that the punishment is excessive. Id. at 291. As the
       third factor, the Solem Court found that “courts may find it useful to compare the sentences
       imposed for commission of the same crime in other jurisdictions.” Id. at 291-92. In Tetter,
       however, this court reasoned that the third Solem factor is of little value in the present context
       because “sex offender statutes’ restrictions and offenders’ prison sentences vary, sometimes
       dramatically, by state.” Tetter, 2018 IL App (3d) 150243, ¶ 73.
¶ 58       Defendant was convicted of criminal sexual assault, a Class 1 felony. 720 ILCS
       5/12-13(a)(4), (b)(1) (West 2010).5 Only aggravated criminal sexual assault (720 ILCS
       5/11-1.30 (West 2016)) and predatory criminal sexual assault of a child (id. § 11-1.40), both
       Class X felonies, are per se categorized as greater offenses in Illinois.6 In contrast, many
       more felony offenses categorized as a lesser degree are subject to SORA requirements. E.g.,
       id. § 10-5.1(g)(1) (Class 4 luring of a minor); id. § 11-25(b) (Class 4 grooming); id.
       § 11-18.1(c) (Class 2 or 3 patronizing a minor engaged in prostitution). The commission of
       certain misdemeanor offenses may also subject an offender to SORA requirements. E.g., id.
       § 11-9.1(a), (c)(1) (Class A sexual exploitation of a child); id. § 10-5.1(b), (g)(2) (Class B
       luring of a minor).
¶ 59       Under SORA, convictions for certain enumerated offenses trigger the “sexual predator”
       designation, through which offenders are made subject to the SORA requirements for life.
       730 ILCS 150/2(E)(7) (West 2016). Even within this select group of offenses, criminal
       sexual assault is still not the least serious offense, as the list includes misdemeanor offenses
       (720 ILCS 5/10-5.1(b), (g)(2) (West 2016)) and lesser felonies (id. § 11-1.60(a), (g)). In
       short, numerous lesser offenses are subject to SORA, and even some lesser offenses are
       subject to SORA’s sexual predator designation. It is simply indisputable that defendant has
       been convicted of one of Illinois’s most serious sex offenses.
¶ 60       A qualitative look at defendant’s offense is of no help to defendant’s argument.
       Defendant was 40 years old when he performed oral sex on a sophomore girl at Lincoln-Way
       Central. Moreover, it was only because defendant was an assistant coach on S.G.’s bowling
       team that defendant was in a position to commit that offense. This exploitation of a “position
       of trust, authority, or supervision in relation to the victim” is considered particularly
       egregious by the law. Id. § 11-1.20(a)(4). Indeed, it was this factor that rendered defendant’s
       actions a Class 1 felony. Id. § 11-1.20(b)(1).
¶ 61       To put defendant’s conduct in context, it is helpful to consider the two recent cases in
       which this court found the statutory scheme in question to be unconstitutional as applied. In

           5
             The criminal sexual assault statute has since been renumbered. See 720 ILCS 5/11-1.20(a)(4)
       (West 2016). The offense is now, as it was in 2010, a Class 1 felony. Id. § 11-1.20(b)(1). For
       comparison purposes, we will cite the most recent edition of the Criminal Code of 2012, as it would be
       most reflective of “our community’s evolving standard of decency.” People v. Miller, 202 Ill. 2d 328,
       340 (2002).
           6
             Certain convictions for child pornography or promoting juvenile prostitution may rise to the level
       of a Class X felony, depending on the factual circumstances underlying the conviction. 720 ILCS
       5/11-20.1(c), (c-5) (West 2016); id. § 11-14.4(a)(3), (d).

                                                     - 12 -
       Tetter, the defendant was 21 years old when he met the victim, with whom he was close in
       age, on a social networking website. Tetter, 2018 IL App (3d) 150243, ¶¶ 1, 5. The two
       eventually entered into a consensual sexual relationship. Id. ¶ 8. That relationship continued
       after the defendant learned that the victim was actually 16 years old. Id. ¶ 9. The victim’s
       mother alerted authorities after she learned that the victim had become pregnant. Id. ¶ 13.
       The defendant was convicted of aggravated criminal sexual abuse, a Class 2 felony. Id. ¶ 5.
       The circuit court sentenced him to 180 days in the county jail. Id. ¶ 21.
¶ 62        In Kochevar, the defendant was 16 years old when he entered into a relationship with the
       14-year-old victim. Kochevar, 2018 IL App (3d) 140660, ¶ 4. The defendant and the victim
       attended high school together. Id. Sometime after the defendant turned 18 years old, the
       relationship became sexual in nature. Id. Upon learning of the relationship, the victim’s
       parents alerted authorities. Id. The defendant was charged with and convicted of
       misdemeanor criminal sexual abuse. Id. ¶ 1. The court sentenced defendant to 90 days in jail
       (with all but 10 days suspended) and 24 months’ probation. Id.
¶ 63        While the defendants in Tetter and Kochevar were young men engaged in criminal sexual
       relationships with girls slightly younger than themselves, defendant here was 25 years the
       victim’s senior.7 Further, defendant took advantage of his position of trust and authority over
       S.G., a fact not present in Tetter or Kochevar. On a fundamental level, defendant’s conduct in
       the present case is more offensive to “our community’s evolving standard of decency.”
       People v. Miller, 202 Ill. 2d 328, 340 (2002). This conclusion is reflected in the sentencing
       ranges in each case; while the sentences in both Tetter and Kochevar were measured in days
       in the county jail, defendant was sentenced to six years’ imprisonment, two years above the
       minimum for a Class 1 felony. See 730 ILCS 5/5-4.5-30(a) (West 2014).
¶ 64        In attempting to minimize the gravity of his offense on appeal, defense emphasizes that
       “there was no force used in the alleged incidents[ ] and there was only one victim.” Initially,
       we note that criminal sexual assault is a Class 1 felony whether it is the result of the use of
       force or the result of an older person taking advantage of their position of trust or authority
       over a minor (see 720 ILCS 5/11-1.20 (West 2014)), belying defendant’s implication that his
       offense is inherently less serious in nature than forcible assault. Further, the fact that there
       was only one victim does nothing to diminish the seriousness of the offense, it merely means
       that defendant only committed one offense, rather than two or three.
¶ 65        While defendant’s offense was serious, we must also be careful not to downplay the
       severity of the punishment defendant faces. As a sexual predator, defendant is subject to a
       lifetime of SORA and the Notification Law requirements, among other restrictions. As the
       Kochevar court described, defendant “faces a lifetime of employment rejection, public
       disdain, impairment of his enjoyment of parental involvement and his discharge of parental
       responsibilities, curtailment of his liberty to live where he chooses and to move freely about
       his community, suspicion, and permanent stigma.” Kochevar, 2018 IL App (3d) 140660,
       ¶ 49.
¶ 66        Nevertheless, we cannot conclude that the punishment is grossly disproportionate to the
       offense in this case. Defendant’s offense was among the most serious sex offenses that can be

           7
            The notion that the offender’s age and the difference in ages, rather than just the victim’s age,
       bears on the seriousness of an offense is reflected in certain criminal sex crime statutes. See, e.g., 720
       ILCS 5/11-1.50(b), (c) (West 2016); id. § 11-1.60(d); id. § 11-6.6(b).

                                                      - 13 -
       committed in the State of Illinois. While some greater offenses are subject to the same
       statutory scheme pertaining to sex offenders, many lesser offenses are subject to that same
       scheme. As applied to defendant, the statutory scheme including SORA and the Notification
       Law comports with the eighth amendment to the United States Constitution, as well as the
       Illinois Constitution’s mandate that all penalties be determined according to the seriousness
       of the offense.
¶ 67        In reaching this conclusion, we are mindful of defendant’s assertion that his classification
       as a sexual predator, and the resultant disabilities and restraints, involved “no consideration
       of rehabilitative potential or restoration to useful citizenship.” To that point, defendant
       repeatedly stresses that the instant case was his first criminal conviction of any kind and that
       he had previously lived a law-abiding life. He also urges that “the positive aspects of the sex
       offender report[ ] strongly suggest that the offenses Defendant was convicted of here are
       unlikely to recur.”
¶ 68        Those facts—namely, defendant’s lack of criminal history and his claimed low risk of
       recidivism—do not bear on the seriousness of the instant offense, but on defendant’s
       rehabilitative potential. The sexual assault of a minor is not somehow a less egregious
       offense if it is simply the first time that particular offender has sexually assaulted a minor.
       For that reason, we construe defendant’s argument based on those facts as a separate
       challenge to the second portion of the proportionate penalties clause. Of course, in addition to
       requiring penalties to be determined according to the seriousness of the offense, the
       proportionate penalties clause mandates that penalties also be issued “with the objective of
       restoring the offender to useful citizenship.” Ill. Const. 1970, art. I, § 11; see also Sharpe,
       216 Ill. 2d at 524-25 (dividing proportionate penalties challenge into distinct sections
       corresponding with the proportionate penalties clause). Our supreme court has consistently
       considered the two proportionate penalties clause requirements separately. E.g., People v.
       Coleman, 166 Ill. 2d 247, 261 (1995).
¶ 69        To be sure, defendant’s history and character are primary considerations when evaluating
       a defendant’s rehabilitative potential. E.g., People v. Flores, 404 Ill. App. 3d 155, 159
       (2010). Further, it stands to reason that a defendant’s relative risk of recidivism is also a
       proper consideration, as one less likely to reoffend must have a greater chance of restoration
       to useful citizenship. However, the nature and circumstances of the offense are themselves
       factors to be considered in the determination of rehabilitative potential. Id.
¶ 70        While defendant certainly had an unblemished record prior to committing the present
       offense, his risk of recidivism is far less clear. Defendant posits that “the positive aspects of
       the sex offender report[ ] strongly suggest that the offenses Defendant was convicted of here
       are unlikely to recur.” The “negative aspects” of that report, such as the conclusions that
       defendant suffered from a “very severe character pathology” and had “deeply ingrained
       dysfunctional personality patterns” suggest a different story. Most importantly though, the
       sex offender report is equivocal. The report itself cautions that the test findings were of
       “questionable validity” on the grounds that defendant provided such an extreme set of “fake
       good” answers so as to present himself in an unrealistically positive manner. The report
       concludes that the use of the results for purposes other than clinical screening could be
       “misleading.” Indeed, even defendant on appeal concedes that “the sex offender evaluation
       may not be entirely valid.”


                                                  - 14 -
¶ 71       The very serious nature of the offense, defendant’s history and character, and the sex
       offender report provide varying accounts of defendant’s rehabilitative potential. It should
       also be noted that even when one is mandatorily subjected to the sex offender statutory
       scheme, the circuit court may still tailor its actual sentence to the defendant’s rehabilitative
       potential. Here, presumably based upon the objective of restoring defendant to useful
       citizenship, the circuit court sentenced him to 6 years’ imprisonment when he was eligible
       for up to 15 years. We conclude that the record fails to demonstrate that defendant is of such
       great rehabilitative potential that his classification as a sexual predator, with the ensuing
       requirements and disabilities under SORA and the remainder of the statutory scheme,
       rendered the circuit court unable to fashion a sentence that properly contemplated the
       objective of restoring defendant to useful citizenship.
¶ 72       In summary, the statutory scheme applicable to sex offenders, including defendant’s
       classification as a sexual predator, is not unconstitutional as applied to defendant under the
       eighth amendment to the United States Constitution. Nor is that statutory scheme
       unconstitutional as applied to defendant under the Illinois Constitution’s requirement that
       penalties be determined according to the seriousness of the offense. Finally, the statutory
       scheme is not unconstitutional as applied to defendant under the Illinois Constitution’s
       requirement that penalties be determined with the objective of restoring the offender to useful
       citizenship.
¶ 73       The judgment of the circuit court of Will County is affirmed.

¶ 74      Affirmed.

¶ 75        JUSTICE WRIGHT, specially concurring:
¶ 76        I agree that the circuit court’s comments prior to jury deliberations did not serve in any
       way to hasten the verdict. I also agree that defendant’s subjugation to the statutory scheme of
       lifetime consequences, as a convicted sex offender, is not unconstitutional. For that reason, I
       concur in the judgment of my respected colleagues.
¶ 77        I write specially, however, because I would follow the holding in Malchow, where our
       supreme court held that the statutory scheme at issue in this appeal is not punitive. This
       decision has never been overruled. Respectfully, in spite of this court’s decision in Tetter, I
       submit our court does not have the discretion to diverge from the holdings of our supreme
       court. Rosewood Care Center, Inc. v. Caterpillar, Inc., 366 Ill. App. 3d 730, 734 (2006) (“It
       is well settled that when our supreme court has declared law on any point, only it can modify
       or overrule its previous decisions, and all lower courts are bound to follow supreme court
       precedent until such precedent is changed by the supreme court.”).
¶ 78        I also write separately because I strongly disagree that the analysis in Tetter, on which
       this court now relies, is exhaustive. In my dissent in Tetter, I characterized the outcome in
       Tetter as a “hazy holding.” People v. Tetter, 2018 IL App (3d) 150243, ¶ 90. My position has
       not changed. I conclude that the majority in Tetter abandoned the controlling precedent
       established by Malchow in an unsupported, conclusory fashion. In Tetter, the majority
       summarily declared that the increasing statutory restrictions imposed on convicted sex
       offenders enacted after Malchow created a license to ignore that longstanding precedent. Yet,
       the majority in Tetter failed to identify any specific legislative changes, enacted after


                                                  - 15 -
       Malchow, that converted the statutory provisions designed to protect the public into unfairly
       burdensome consequences that punitively restrict the lifestyles of convicted sex offenders.
¶ 79       I presume the legislative changes vaguely referenced by the majority in Tetter became
       effective after our supreme court’s 2013 decision in Cardona. In Cardona, the court restated,
       explicitly, that sex offender registration “is a regulatory scheme designed to foster public
       safety.” People v. Cardona, 2013 IL 114076, ¶ 24; see also People v. Pepitone, 2018 IL
       122034.
¶ 80       In spite of my own research efforts, I have yet to discover these legislative provisions,
       effective after the March 21, 2013, holding in Cardona, that justify the holding in Tetter. In
       Tetter, I disagreed with the majority’s rush to become the first reviewing court in Illinois to
       find the registration requirements and other statutory restrictions for convicted sex offenders
       have become punitive. After Tetter, our court has praised the rationale of Tetter in Kochevar
       and now in this decision. Respectfully, I do not share these views of the holding in Tetter.
¶ 81       For purposes of this appeal, I fully adhere to the position set forth in my dissent in Tetter.
       I maintain that the legislative provisions vaguely referenced in Tetter are regulatory measures
       designed for public safety. These regulations create informational tools and protective safe
       zones that allow parents, neighbors, and other members of the public to minimize the risk of
       becoming the next unsuspecting target of a recidivist sex offender.
¶ 82       In conclusion, I agree with the result in this appeal on all issues. However, I conclude
       defendant’s subjugation to the statutory scheme of lifetime consequences as a convicted sex
       offender is not unconstitutional because those consequences are regulatory, protective, and
       nonpunitive.




                                                   - 16 -
