                                           2018 IL App (3d) 160174

                                 Opinion filed October 26, 2018
       _____________________________________________________________________________

                                                    IN THE

                                     APPELLATE COURT OF ILLINOIS

                                               THIRD DISTRICT

                                                        2018

       THE PEOPLE OF THE STATE OF                         )     Appeal from the Circuit Court
       ILLINOIS,                                          )     of the 12th Judicial Circuit,
                                                          )     Will County, Illinois,
              Plaintiff-Appellee,                         )
                                                          )     Appeal No. 3-16-0174
              v. 	                                        )     Circuit No. 10-CF-1918

                                                          )

       EDWARD R. CETWINSKI,                               )     Honorable

                                                          )     Amy M. Bertani-Tomczak,
              Defendant-Appellant.                        )     Judge, Presiding.
       _____________________________________________________________________________

             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.




                                                        2

¶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

     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




                                                       3

       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.




                                                        4

¶ 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, 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.




                                                           5

¶ 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,


                                                         6

       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.”

¶ 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


                                                         7

                       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



               1
                Jury deliberations began on December 7.


                                                          8

¶ 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

       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


               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.
                                                            9

       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 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.


                                                         10 

¶ 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




                                                         11 

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 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



        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 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)).
                                                      12 

       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


               4
                The present version of this statute requires only that “When 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).
                                                            13 

       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.

¶ 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,


                                                          14 

       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).




                                                        15 

¶ 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.

¶ 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


                                                          16 

¶ 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


                                                         17 

                      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, 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


                                                        18 

       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


                                                        19 

       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). 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).

               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).
                                                           20 

¶ 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

       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




                                                        21 

       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


               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).
                                                            22 

       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

       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


                                                        23 

       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.




                                                         24 

¶ 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.”

¶ 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 six 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.




                                                         25 

¶ 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.”).




                                                        26 

¶ 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 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



                                                         27 

       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.




                                                        28 

