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                               Appellate Court                           Date: 2019.02.05
                                                                         14:22:57 -06'00'



                  People v. Rhoades, 2018 IL App (4th) 160457



Appellate Court    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption            TRAVIS D. RHOADES, Defendant-Appellant.



District & No.     Fourth District
                   Docket No. 4-16-0457



Filed              November 27, 2018



Decision Under     Appeal from the Circuit Court of Piatt County, No. 14-CF-2; the Hon.
Review             Roger B. Webber, Judge, presiding.



Judgment           Affirmed.


Counsel on         James E. Chadd, Patricia Mysza, and Rebecca I. Levy, of State
Appeal             Appellate Defender’s Office, of Chicago, for appellant.

                   Dana Rhoades, State’s Attorney, of Monticello (Patrick Delfino,
                   David J. Robinson, and Luke McNeill, of State’s Attorneys Appellate
                   Prosecutor’s Office, of counsel), for the People.



Panel              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 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.


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¶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
       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 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

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       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 the 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
       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 the 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 the 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.
¶ 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

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       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.
                   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 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

                                                     -5-
       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 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:
                “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


                                                    -6-
               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 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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