People v. Rademacher

2016 IL App (3d) 130881

Opinion filed April 4, 2016
Modified upon denial of rehearing August 1, 2016
___________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

2016

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 21st Judicial Circuit,
) Iroquois County, Illinois,
Plaintiff-Appellee, )
) Appeal No. 3-13-0881
v. ) Circuit No. 05-CF-87
)
TIMOTHY J. RADEMACHER, )
) Honorable Gordon L. Lustfeldt,
Defendant-Appellant. ) Judge, Presiding.
_____________________________________________________________________________

JUSTICE SCHMIDT delivered the judgment of the court, with opinion.
Justice Holdridge concurred in the judgment and opinion.
Justice Wright specially concurred, with opinion.

OPINION

¶1 Defendant, Timothy J. Rademacher, appeals the first-stage dismissal of his pro se

postconviction petition. On appeal, defendant argues that his petition stated the gist of a

constitutional claim. We affirm.

¶2 FACTS

¶3 Defendant pled guilty to predatory criminal sexual assault of a child (720 ILCS 5/12-

14.1(a)(1) (West 2004)) and criminal sexual assault (720 ILCS 5/12-13(a)(4) (West 2004)). In

exchange for defendant’s plea, the State agreed to an aggregate sentencing range of 12 to 35
 years’ imprisonment on the mandatorily consecutive sentences. As the factual basis for the plea,

the parties agreed that if the case proceeded to trial, B.B. would testify that he had sexual

intercourse with defendant at the church’s parsonage in September 2002, when B.B. was 13

years old. Further, the parties agreed that C.L. would testify that he had sexual intercourse with

defendant in the parsonage between January 2003 and June 2005, when he was under 13 years

old. The court accepted defendant’s guilty plea.

¶4 The Iroquois County probation department submitted a presentence investigation report

(PSI), which the trial court considered at defendant’s sentencing. In a statement included in the

PSI, defendant admitted to sexual activity with B.B. and C.L. while each was spending the night

at the parsonage where defendant lived. The incidents occurred while defendant was employed

as a youth minister at Ashkum United Methodist Church. Reports in the PSI indicated that the

church was located at 208 North Third Street, in Ashkum, while the church parsonage was

located at 303 East Washington Street. Statements from the victims also indicated that all

incidents in question took place at the parsonage.

¶5 The PSI also included a reference to a child pornography case pending in another

jurisdiction. This included a number of photographs from that case, which had allegedly been

downloaded onto a church computer. The court overruled defense counsel’s objection to the

photographs, noting that defendant had admitted to downloading the photographs onto the

computer.

¶6 The PSI included a victim impact statement from C.L. In the statement, C.L. described

the stress that the offense had caused him, including flashbacks and nightmares. B.B.’s mother

also wrote a victim impact statement. In the statement, she wrote: “You stole our son from us.

You stole his innocence, his faith, his trust, his will to live.” She also wrote: “When [B.B.] met

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 you and we found out you were a minister we thought you were going to be good for him,

teaching him about God’s love. Instead you took it all away from him.” The court also

considered the fact that one of the victims had brought a lawsuit against the church. With the

consent of the parties, the court also considered a number of letters sent to the court by the

public.

¶7 At sentencing, the State read C.L.’s victim impact statement while B.B.’s mother read her

own. C.L.’s parents wrote statements after the filing of the PSI, and the State read those

statements to the court. Aside from the PSI and the victim impact statements, the State did not

present any formal evidence in aggravation.

¶8 Defendant called Charles Shelquist as his first witness in mitigation. Shelquist testified

that he was a member of the United Methodist Church clergy, and had served in Onarga, Illinois,

from 1997 to 2004. He became acquainted with defendant when defendant was appointed to the

church in Ashkum. Though Shelquist described his relationship with defendant as one of

colleagues, he testified that the relationship changed after defendant’s arrest: “Upon hearing of

his arrest I felt he would probably be feeling isolation and possible disconnect from God so I

tried to go see him to see what spiritual care he was receiving because I believe that everybody

deserves to have spiritual care.” Shelquist explained that he met with defendant once or twice a

month, taking communion, talking about scripture, and praying. Shelquist believed that

defendant was sincerely remorseful for committing the offenses in question.

¶9 Tammy Biltgen testified that she was the director of youth ministry and Christian

education at Trinity United Methodist Church in Wilmette. She testified that she was friends

with defendant while the two attended classes together at Garrett-Evangelical Theological

Seminary. She stayed in contact with defendant following his arrest. Biltgen testified that

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 defendant confided in her and another friend that he was a homosexual. Biltgen knew that

defendant had pled guilty, but that did not affect her feelings of friendship for him. The parties

then stipulated that two further witnesses—both current pastors who attended seminary school

with defendant—would give similar testimony to that of Biltgen if called.

¶ 10 Laura Crites testified that she formerly worked as a Methodist pastor at two churches in

Iroquois County. She knew defendant both from seminary school and from his time as a pastor

in Ashkum. She, too, had remained in contact with defendant after his arrest. Crites opined that

defendant lacked the maturity to be the sole pastor at a small-town church. She testified that “if

[defendant] did not have the kinds of issues and problems that he ha[d], he would be a gifted

pastor the likes of which I have never seen.”

¶ 11 Steven Lobacz testified that he was both a United Methodist minister, as well as a board

certified psychiatrist. Defendant had revealed to Lobacz during a therapy session that he was

attracted to a boy at his church. Lobacz diagnosed defendant with depression and generalized

anxiety disorder. He opined that defendant would benefit from further therapy in the future.

Lobacz believed that defendant was sincere in his remorse.

¶ 12 The parties stipulated that defendant’s parents would testify that defendant had never

been a source of problems for them and that defendant would be a good candidate for

rehabilitation.

¶ 13 In allocution, defendant admitted that he had sexual intercourse with B.B. Though he

admitted to having inappropriate sexual contact with C.L., defendant denied engaging in oral or

anal intercourse with him. Defendant recalled that he would pick C.L. up on Sunday mornings,

then take him home later in the afternoon following church. Occasionally, C.L. would come to

defendant’s house on Saturday and stay overnight. B.B., too, would sleep over on weekends.

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 Defendant admitted that “[i]n both cases I destroyed their trust and friendship and broke the

promises that I made to them, their families, the church, the community and to my friends and

family.” Defendant apologized profusely throughout his allocution to the victims, their families,

his former congregation, members of the community, and his own family. The themes of prayer,

forgiveness, and God’s love were recurrent throughout the allocution.

¶ 14 Following arguments, the trial court delivered its remarks, beginning with its

consideration of the statutory factors in aggravation and mitigation. The only mitigating factor

found by the court was defendant’s lack of a criminal history. In aggravation, the court noted

that defendant’s position of trust was an element of the offense with regard to predatory criminal

sexual assault of a child, but not criminal sexual assault. Accordingly, the court considered that

aggravating factor only with respect to the second count. The court also found that defendant’s

conduct threatened serious harm and that a sentence was necessary to deter others from

committing the same offense. Moreover, the court found “that the offense did take place in a

house of worship or on the grounds of the same.” The court noted that this finding could be

considered an aggravating factor, stating that “[it] is not a factor in either one of the charges[,] so

it can be considered separately.” The court continued: “I think it’s aggravating that these

offenses were committed in a church and that you used religion to ensnare your victims.”

¶ 15 After its brief consideration of the statutory factors, the court began an explanation of

how it reached a sentence. In total, the trial court’s remarks span 13 uninterrupted pages of the

report of proceedings. Because of the importance of the court’s full remarks to our analysis, we

quote those remarks at length:

“These are crimes *** of outrage and I think you can imagine the

sentence that might be imposed on you if they left you tied to a

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 post uptown and put above it some of the pictures I saw, some of

the despicable filth that you left on the Manteno Methodist Church

computer. I don’t think it would take too long for the good citizens

of this area to deal a punishment on you much more severe than

my own. And I have struggled mightily to keep my own emotions

as a man, as a church goer, as a father in check and I believe that I

have done so, but you need to understand that society’s worst

opprobrium is reserved for people who commit crimes like this.

***

These victims, these boys all came to you through church.

The offenses were committed on church property. It happened

more than once. They occurred while you were a minister. *** It

is clear that you used the cloak of religion to gain access to your

victims and to gain the trust of them and their parents.”

¶ 16 After stating that it had considered the letters received, including some from ministers,

the court explained the role religion played in the case:

“Ordinarily we don’t have religion in court, that’s not a rule that I

have made, but it’s the law. It does, however, seem impossible to

avoid it in this case. And I have always thought it ironic that the

Bible, which is really a book of laws, is the only law book I know

of that’s not allowed in court. I have considered these letters ***

but I keep coming back to what you did.

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 You defied 2 churches, 2 houses of the Lord with your

depravity and you cast a pall on churchmen everywhere. You have

subjected now the Methodist Church and these churches to a

lawsuit from one of the most outstanding plaintiff’s tort lawyers in

Illinois. They want over a million dollars and you brought that on

your church that you profess to love. How many children now will

be kept out of church and out of youth group because their parents

are afraid they are going to be molested? How much harder is it

going to be for ministers to gain the trust of parishioners and

children? And you have apparently driven at least one of these

boys out of the church and away from God, that’s according to the

victim statement, and that’s your fault.”

¶ 17 On the topic of forgiveness, the court explained that “an essential part of the church [is]

the forgiveness of sin and the reconciliation of the sinner with God.” However, the court

continued, “there is a difference between the forgiveness of God and the mercy of man.” The

court declared that defendant had betrayed the church, as well as his family, his friends, the

victims, and the victims’ families. The court also excoriated defendant for continuing to deny

the charges related to C.L.

¶ 18 The court continued: “You might have started out in the Methodist Church *** but I

think perversion is your true religion and you are its high priest and there’s been enough sacrifice

of young men on the alter [sic] of depravity by you.” The court sentenced defendant to terms of

20 and 10 years’ imprisonment on counts I and II, respectively, to run consecutively. The court

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 concluded: “There is nobody worse than a desecrater and a betrayer, especially a minister who

does it, who in his actions drives people from God and that’s what you did.”

¶ 19 Defendant filed a motion to reconsider sentence, which the trial court denied. On direct

appeal, we remanded the matter for the filing of a Rule 604(d) certificate (Ill. S. Ct. R. 604(d)

(eff. July 1, 2006)) and a de novo hearing on defendant’s postplea motion. People v.

Rademacher, No. 3-07-0064 (2007) (unpublished order under Supreme Court Rule 23).

¶ 20 On remand, defendant, again, moved for reconsideration of his sentence. The trial court,

again, denied the motion, holding that defendant had to first move to withdraw his guilty plea

under People v. Linder, 186 Ill. 2d 67 (1999), and Illinois Supreme Court Rule 604(d) (eff. July

1, 2006). Following the denial, defendant filed a pro se motion to amend his motion for

reconsideration. Newly appointed defense counsel then filed a supplemental motion for

reconsideration. The trial court denied the motion, holding that defendant was not legally

entitled to challenge his sentence without moving to withdraw his guilty plea. Defendant

appealed.

¶ 21 On appeal, the Office of the State Appellate Defender, citing Linder, moved to dismiss

the appeal because defendant did not file a motion to withdraw his guilty plea. This court

allowed the motion. People v. Rademacher, No. 3-11-0325 (Oct. 4, 2011) (dispositional order).

¶ 22 Defendant subsequently filed a pro se postconviction petition. In his petition, defendant

argued, inter alia, that the trial court deprived him of his constitutional right to a fair sentencing

hearing when it considered in aggravation evidence unsupported by the record. Specifically,

defendant contended that the crimes were committed in the parsonage, which does not constitute

a “place of worship” under the aggravating factors statute. 730 ILCS 5/5-5-3.2(a)(11) (West

2004). Defendant also alleged that the court violated his constitutional rights by exhibiting a

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 personal and religious bias against him. Defendant further claimed that appellate counsel was

ineffective in that counsel’s motion to dismiss the appeal deprived defendant of the opportunity

to make the above arguments on direct appeal. The trial court dismissed the petition at the first

stage of review.

¶ 23 ANALYSIS

¶ 24 On appeal, defendant renews the aforementioned arguments from his pro se

postconviction petition (improper aggravating factor and bias). Upon review, we find that

neither of defendant’s arguments set forth the gist of a constitutional claim.

¶ 25 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2012))

establishes a three-stage process by which a criminal defendant may challenge his convictions or

sentence for violations of state or federal constitutional rights. People v. Jones, 211 Ill. 2d 140,

143-44 (2004). At the first stage, a trial court shall summarily dismiss a petition for relief if “the

court determines the petition is frivolous or is patently without merit.” 725 ILCS 5/122-2.1(a)(2)

(West 2012). We review a trial court’s first-stage dismissal of a postconviction petition de novo.

People v. Edwards, 197 Ill. 2d 239, 247 (2001).

¶ 26 A petition is frivolous or patently without merit if it lacks an arguable basis in law or fact.

People v. Alcozer, 241 Ill. 2d 248 (2011). A petition lacks an arguable basis in law or fact if it

“is one which is based on an indisputably meritless legal theory or a fanciful factual allegation.”

People v. Hodges, 234 Ill. 2d 1, 16 (2009). At the first stage, a petition is liberally construed and

all well-pled facts are taken as true unless affirmatively rebutted by the trial record. People v.

Coleman, 183 Ill. 2d 366, 381 (1998). “Because most petitions are drafted at this stage by

defendants with little legal knowledge or training, this court views the threshold for survival as

low.” Hodges, 234 Ill. 2d at 9. Accordingly, it is required only that a pro se defendant allege

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 enough facts to make out a claim that is arguably constitutional, or state the “gist” of a

constitutional claim. People v. Allen, 2015 IL 113135, ¶ 24.

¶ 27 I. Improper Sentencing Factor

¶ 28 Defendant first argues that the trial court erroneously found a statutory aggravating factor

applicable at sentencing. Specifically, defendant points out that his offenses took place in the

parsonage, rather than the church itself. Accordingly, defendant argues that the court erred in

finding in aggravation that the offense occurred “in a house of worship or on the grounds of the

same.” This reliance upon an improper factor, defendant contends, rendered his sentencing

noncompliant with the basic requirements of due process.

¶ 29 A. Error

¶ 30 Section 5-5-3.2 of the Unified Code of Corrections sets forth a number of factors that

“may be considered by the court as reasons to impose a more severe sentence.” 730 ILCS 5/5-5-

3.2(a) (West 2004). One of those factors allows the court to consider in aggravation the fact that

“the offense took place in a place of worship or on the grounds of a place of worship,

immediately prior to, during or immediately following worship services.” 730 ILCS 5/5-5-

3.2(a)(11) (West 2004). A “place of worship” is defined as “any church, synagogue or other

building, structure or place used primarily for religious worship.” Id.

¶ 31 “Parsonage” is defined as “the residence of a member of the clergy as provided by the

parish or church.” Random House Dictionary of the English Language 1413 (2d ed. 1987). In

the present case, the record establishes that the church parsonage has a separate address from the

church itself. Positing that religious worship is surely not the primary use of the parsonage,

defendant argues that the trial court erred in finding that this factor in aggravation was applicable

to his case. Implicit in defendant’s argument is the assumption that the parsonage should not be

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 considered “on the grounds” of the church. Though the State does not argue otherwise, we are

compelled to address the issue.

¶ 32 The aggravating factors statute defines “place of worship”; however, it does not define

“grounds.” 730 ILCS 5/5-5-3.2(a)(11) (West 2004). It is not apparent on the face of the statute

whether “grounds” should be strictly interpreted to mean the curtilage of the church, or more

broadly interpreted to mean the whole of the church property—a definition that might include the

parsonage. Moreover, it is unclear from the record whether the church property at 208 North

Third Street abuts with the parsonage property located at 303 East Washington Street. We raise

these questions merely to illustrate that it is far from certain that any error was committed by the

trial court in the present case. We need not presently engage in a full statutory analysis,

however, because defendant’s claim fails on multiple other grounds.

¶ 33 B. Constitutional Dimension

¶ 34 Even assuming, for the sake of argument, that the trial court erred in finding subsection

(a)(11) of the aggravating factors statute applicable to defendant’s case, defendant’s

postconviction claim nevertheless fails because it is not of sufficient constitutional dimension.

¶ 35 The Act provides an opportunity for a defendant to assert that “there was a substantial

denial of his or her rights under the Constitution of the United States or of the State of Illinois or

both.” 725 ILCS 5/122-1(a)(1) (West 2012). Accordingly, postconviction relief will be denied

where defendant’s claims are based upon statutory rights or present an otherwise insufficient

constitutional dimension. See People v. Greer, 212 Ill. 2d 192, 203-04 (2004).

¶ 36 In the present case, the aggravating factor applied by the trial court is, of course, a

creature of statute. See 730 ILCS 5/5-5-3.2(a) (West 2004). Defendant maintains, however, that

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 sentencing based upon an improper factor undermined his fundamental right to liberty, and that

his claim is “of course of constitutional dimension.”

¶ 37 The alleged excessiveness of a sentence that is within statutory limits does not create a

constitutional issue that may serve as the basis for postconviction relief. People v. Boyd, 347 Ill.

App. 3d 321, 331 (2004). Our supreme court has suggested that whether a sentence conforms to

statute is key in determining whether a constitutional question has been raised. People v. Sluder,

40 Ill. 2d 559, 561 (1968) (“[T]he sentence imposed is within the statutory limits prescribed for

the offense to which the defendant had pleaded guilty, and this issue does not involve a

constitutional question.”). In People v. Del Vecchio, 129 Ill. 2d 265, 293 (1989), the supreme

court, on appeal from the dismissal of a postconviction petition, refused to reach the issue of

whether a juvenile offense could be used in aggravation because, inter alia, “it involves a

question of statutory construction and not a constitutional matter.” See also People v. Kessinger,

133 Ill. App. 3d 831, 832, 834 (1985) (refusing to consider erroneous imposition of extended-

term sentence on grounds that it did not rise to the level of a constitutional deprivation). Even

the complete lack of a hearing on factors in aggravation and mitigation does not rise to the level

of a constitutional deprivation because, as our supreme court has often stated, “ ‘the statute

providing for a hearing in aggravation and mitigation *** does not confer any constitutional

rights.’ ” People v. Scott, 49 Ill. 2d 231, 234 (1971) (quoting People v. Wilbourn, 48 Ill. 2d 187,

190 (1971)).

¶ 38 The error alleged here by defendant would not rise to the level of a constitutional

deprivation because any such error is one created solely by statute. Defendant here allowed his

victims to spend the night at his house, which was property owned by the church. He proceeded

to perform sexual acts on the victims in that house before taking them to church the next

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 morning. In the trial court’s words, defendant “used religion to ensnare [his] victims.” That the

trial court reasonably cited this pattern of behavior in aggravation does not offend either the

federal or state constitution. Any purported error was only committed insofar as the facts of

defendant’s case do not line up with the language and definitions set forth in subsection (a)(11)

of the aggravating factors statute. 730 ILCS 5/5-5-3.2(a)(11) (West 2004). In other words, but

for the existence of that statute, there could be no claim of error. 1 Accordingly, the issue raised

by defendant is one of statutory construction, and is not an issue of constitutional deprivation.

¶ 39 In coming to this conclusion, we reject defendant’s reliance upon People v. Martin, 119

Ill. 2d 453 (1988), and People v. Reed, 376 Ill. App. 3d 121 (2007). Each of those cases was

decided on direct appeal, and thus did not involve postconviction proceedings under the Act.

Defendant’s cited authority does nothing to refute our supreme court’s well-settled position that

matters of statutory interpretation are not of sufficient constitutional dimension as required by

the Act. See Kessinger, 133 Ill. App. 3d at 834.

¶ 40 C. Prejudice

¶ 41 Though our finding that defendant’s improper aggravating factor argument did not raise a

constitutional issue is dispositive, we must note that his argument would fail on another ground

as well. That is, even assuming—again, arguendo—that the issue was of sufficient

constitutional dimension, defendant’s contention that he was arguably prejudiced by the

allegedly erroneous finding is affirmatively rebutted by the record.

1
A trial court is free to consider factors in aggravation that are not specifically listed in a

statute. E.g., People v. Allen, 119 Ill. App. 3d 845, 846 (1983). Thus, even if the parsonage in

the present case did not satisfy the aggravating factors statute, the court was free to consider

defendant’s behavior as a nonstatutory aggravating factor.

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¶ 42 A sentencing court’s consideration of an improper factor in aggravation warrants relief

only when a defendant can demonstrate that he or she was prejudiced by the court’s

consideration of that factor. Reed, 376 Ill. App. 3d at 128. To obtain remand for resentencing, a

defendant “must show more than the mere mentioning of an improper fact.” Id. “An isolated

remark made in passing, even though improper, does not necessarily require that defendant be

resentenced. [Citation.] Rather, defendant must show that the trial court relied on the improper

fact when imposing sentence.” (Internal quotation marks omitted.) Id.

¶ 43 Of course, the pleading standards at the first stage of proceedings under the Act are low.

Hodges, 234 Ill. 2d at 9. Accordingly, defendant need not outright establish that he was

prejudiced by the alleged error, but merely establish an arguable basis for such prejudice. See,

e.g., id. at 16. All well-pled facts in defendant’s petition are taken as true unless affirmatively

rebutted by the record. Coleman, 183 Ill. 2d at 381.

¶ 44 In the present case, defendant’s argument—that the trial court’s consideration of an

improper aggravating factor—was prejudicial—is affirmatively rebutted by the record. In the

court’s lengthy explanation of the sentence, it detailed the damage done by defendant to the

victims, their families, the church, and the community. The court’s comment, that the statutory

aggravating factor in question was applicable, was a de minimis portion of the court’s remarks.

Moreover, despite the heinous nature of defendant’s crimes, and the obvious consideration the

trial court gave to that fact, the court sentenced defendant to an aggregate term of 30 years’

imprisonment—5 years fewer than the maximum term allowed under defendant’s plea deal. It

strains credulity to think that the court’s passing reference to the applicability of a statutory

aggravating factor played any appreciable role in defendant’s sentence. Defendant has pointed

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 only to the mere mention of an allegedly improper factor. Any inference of prejudice to be

drawn from that passing remark is affirmatively rebutted by the record.

¶ 45 II. Personal and Religious Bias

¶ 46 Defendant next contends that he stated the gist of a constitutional claim when, in his

postconviction petition, he argued that the trial court exhibited personal and religious bias against

him at sentencing. In support of his claim, defendant cites numerous examples of the court’s

statements at sentencing. See, e.g., supra ¶¶ 16-19. Defendant claims that these statements,

including the court’s repeated references to church and religion, exemplify the “judge’s active,

personal or religious ‘animosity, hostility, ill will or distrust’ toward [defendant].”

¶ 47 A sentencing hearing is fundamentally unfair—and due process is denied—when the

proceeding is affected by judicial bias. See Bracy v. Gramley, 520 U.S. 899, 904-05 (1997).

Such is the result regardless of whether the ultimate sentence imposed was within the statutory

limits. E.g., Townsend v. Burke, 334 U.S. 736, 741 (1948). Similarly, a sentencing hearing will

be found fundamentally unfair where religion is a factor in the sentence imposed. See Zant v.

Stephens, 462 U.S. 862, 885 (1983). In People v. Vance, 76 Ill. 2d 171 (1979), our supreme

court cautioned that “[r]eviewing court judges should be chary of condemning as motivated by

prejudice those actions of trial judges which may represent only a difference of opinion as to the

seriousness of a particular offense in the context of community conditions.” Id. at 181. The

court held that “ ‘something more’ ” than an unfavorable result to the defendant is required to

demonstrate bias or prejudice on the part of the trial court. Id. The court described that

“ ‘something more’ ” as “a showing of animosity, hostility, ill will, or distrust towards [a]

defendant.” Id.

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¶ 48 The trial court’s remarks in the present case do not evince any animosity, hostility, ill

will, or distrust toward defendant. The court condemned defendant and his actions in the

strongest possible terms. The court described the outrage felt in the community stemming from

defendant’s crimes. Still, the record demonstrates that the court fairly considered all of the

evidence presented at trial and, despite its harsh rhetoric, imposed a sentence significantly under

the maximum aggregate term that defendant faced. Defendant was convicted of using his

position as a youth minister to engage in sexual contact with two young boys. These crimes

warranted harsh criticism from the trial court. We hold that harsh criticism, based on the

particular facts of a defendant’s case, does not constitute any sort of evidence of prejudice

derived from personal bias.

¶ 49 Furthermore, the court’s references to religion did not reflect any religious animosity or

ill will toward defendant. To be sure, the court’s repeated references to religion and church are

more than is commonly seen in a sentencing hearing. However, these references were plainly

invited by defendant. After calling six clergy members to testify in mitigation, defendant’s

lengthy statement in allocution was ripe with religiosity. Having invited a sentencing hearing

teeming with religion, defendant may not now argue that the trial court’s references to that topic

deprived him of due process. More importantly, a number of factors cited by the trial court in

aggravation necessarily related to religion, namely that defendant used religion to ensnare his

victims, that defendant’s crimes were committed on church property, and that child pornography

was found on a church computer. On the facts of this case, it would have been virtually

impossible for the court to avoid mentioning church or religion in sentencing. The trial court

simply could not reference those factors without referencing religion. Defendant’s claims that

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 the trial court exhibited personal or religious bias against him are thus affirmatively rebutted by

the record.

¶ 50 III. Ineffective Assistance of Appellate Counsel

¶ 51 Finally, defendant argues that “[i]f this Court concludes the constitutional issues are

forfeited,” we should find that his argument that appellate counsel was ineffective was not

frivolous or patently without merit. Though we have not found that defendant’s prior arguments

were forfeited, instead resolving those issues on their merits, we will nevertheless address

defendant’s ineffectiveness claim.

¶ 52 Claims of ineffective assistance of appellate counsel are cognizable under the Act, and

are analyzed under the same rubric as claims of ineffective assistance of trial counsel. People v.

Mack, 167 Ill. 2d 525, 531 (1995). In order to prevail on a claim of ineffective assistance of

appellate counsel, a defendant must show “(1) that counsel’s performance was deficient or fell

below an objective standard of reasonableness; and (2) that defendant suffered prejudice as a

result of counsel’s deficient performance.” Id. at 532 (citing Strickland v. Washington, 466 U.S.

668, 687 (1984)). In order to prove prejudice stemming from the deficient performance of

appellate counsel, a defendant must show that there was a reasonable probability that, but for that

deficient performance, the sentence or conviction would have been reversed. People v. Olinger,

176 Ill. 2d 326, 364 (1997). A petition will not be dismissed at the first stage of proceedings

under the Act if it provides an arguable basis for each of those prongs. Hodges, 234 Ill. 2d at 17.

¶ 53 Defendant failed to show that he was arguably prejudiced by appellate counsel’s

allegedly deficient performance. As explained in our analysis above, had defendant’s arguments

been presented on direct appeal, they would not have resulted in the reversal of his conviction or

sentence. As to defendant’s improper factors argument, the record is completely devoid of any

17
 indication that defendant suffered any prejudice—a requirement if a defendant is to obtain relief

based upon improper sentencing factors. See supra ¶¶ 41-44. Moreover, defendant’s bias

argument would have failed because it was completely rebutted by the record. See supra ¶¶ 46-

49.

¶ 54 Defendant’s prejudice argument fails on a second, more subtle ground as well. The

argument presumes that but for counsel’s motion to dismiss the appeal, this court would have

reached the merits on direct appeal. It is well-settled, however, that a defendant’s failure to

comply with Rule 604(d) precludes the appellate court from considering the merits of a

defendant’s appeal. People v. Flowers, 208 Ill. 2d 291, 300-01 (2003). This court, having been

of the opinion that it was precluded from considering the merits of defendant’s appeal,

presumably would have reached that conclusion whether or not counsel raised it in a motion.

¶ 55 Defendant’s failure to show arguable prejudice is dispositive. See People v. Hale, 2013

IL 113140, ¶ 17 (allowing that a reviewing court may decide ineffectiveness claim on prejudice

prong “without addressing counsel’s performance”). Even so, we feel compelled to address the

issue of appellate counsel’s allegedly deficient performance. Defendant’s argument is premised

upon appellate counsel’s motion to dismiss the appeal pursuant to Rule 604(d). That motion, of

course, was granted, and its legal position endorsed by this court. Defendant’s argument then, in

essence, is that this court erred in granting the motion. He contends that Rule 604(d) requires a

motion to withdraw a guilty plea only where a defendant seeks to challenge his sentence as

excessive. Defendant maintains that he challenges his sentence not as excessive, but as

improper.

¶ 56 In People v. Evans, 174 Ill. 2d 320 (1996), our supreme court held that the requirement of

Rule 604(d)—that a defendant wishing to appeal his sentence first file a motion to reconsider

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that sentence—did not apply in the context of fully negotiated guilty pleas. In holding that such

a defendant must file a motion to withdraw the guilty plea, the court reasoned that “[t]o permit a

defendant to challenge his sentence without moving to withdraw the guilty plea in these

instances would vitiate the negotiated plea agreement he entered into with the State.” Id. at 332.

Three years later, in Linder, 186 Ill. 2d at 74, the court extended the reasoning in Evans to the

context of partially negotiated guilty pleas, where a defendant pleads guilty in exchange for a cap

on the possible sentence. The Linder court explained:

“By agreeing to plead guilty in exchange for a recommended

sentencing cap, a defendant is, in effect, agreeing not to challenge

any sentence imposed below that cap on the grounds that it is

excessive. See People v. Catron, 285 Ill. App. 3d 36, 37 (1996)

(defendant who agrees to a potential range of sentences implicitly

concedes that a sentence imposed within the range cannot be

excessive). While the defendant may not like the sentencing

court’s ultimate disposition, that is a risk he assumes as part of his

bargain. A defendant who is unwilling to accept that risk should

not agree to a cap rather than a fixed term. Where the sentence

imposed is within the agreed upon cap, as the sentences here were,

allowing the defendant to seek reconsideration of his sentence

without also moving to withdraw his guilty plea unfairly binds the

State to the terms of the plea agreement while giving the defendant

the opportunity to avoid or modify those terms. That is precisely

the situation the Evans rule was designed to prevent.” Id.

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 Rule 604(d) was subsequently amended to its present form, which holds that “[n]o appeal shall

be taken upon a negotiated plea of guilty challenging the sentence as excessive unless the

defendant, within 30 days of the imposition of sentence, files a motion to withdraw the plea of

guilty and vacate the judgment.” Ill. S. Ct. R. 604(d) (eff. July 1, 2006).

¶ 57 Following Linder and the amendment to Rule 604(d), some courts have taken the position

espoused here by defendant. Most recently, the Fourth District, in People v. Palmer-Smith, 2015

IL App (4th) 130451, ¶ 28, drew a distinction between excessive sentencing and improper

sentencing. The court explained that the defendant in that case had argued that the trial court

“engaged in improper sentencing as opposed to excessive sentencing. Such a specific challenge

is not barred by Rule 604(d) ***.” Id. In dicta, the Second District cited Palmer-Smith with

approval, stating that a defendant could challenge his sentence—via postplea motion and via

appeal—without moving to withdraw his guilty plea “as long as the motion and the appeal are

based on something other than a contention that the sentence is merely excessive.” People v.

Martell, 2015 IL App (2d) 141202, ¶ 10.

¶ 58 We respectfully disagree with those courts. Any distinction between excessive

sentencing and improper sentencing is one without any practical difference. By way of

illustration, defendant here must show that the allegedly improper considerations by the trial

court were prejudicial. That is, he must show that those considerations led to a sentence that

was—of course—excessive. Any “improper sentencing” argument is, by its very nature, an

implicit argument that the sentence imposed was excessive. In other words, as the trial court in

the present case aptly noted, any distinction between improper and excessive “is merely a play

on words—any sentence which is unfair or the result of bias is[,] by definition, excessive.”

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¶ 59 Virtually any excessive sentencing argument could be easily converted to an improper

sentencing argument. This position would completely undermine the holding in Linder, where

the court held that, when the sentence imposed is within the agreed upon range, “allowing the

defendant to seek reconsideration of his sentence without also moving to withdraw his guilty

plea unfairly binds the State to the terms of the plea agreement while giving the defendant the

opportunity to avoid or modify those terms.” Linder, 186 Ill. 2d at 74.

¶ 60 Moreover, drawing a distinction between improper sentencing and excessive sentencing

would completely swallow the withdrawal requirement of Rule 604(d), reducing that

requirement to nothingness in the context of partially negotiated pleas. We cannot imagine the

attorney unable to convert an “excessive” sentencing claim into an “improper” sentencing claim.

We are unaware of any excessive sentence claims wherein the defendant argues “the trial judge

did everything correctly, fairly considered all the appropriate factors in aggravation and

mitigation, only considered relevant and admissible evidence, etc., etc., but, doggone it, the

sentence is still just too long.” “The main purpose behind the promulgation of Rule 604(d) was

to reduce the large number of appeals being taken from guilty pleas.” Evans, 174 Ill. 2d at 329.

Allowing defendants to appeal “improper” sentences imposed pursuant to partially negotiated

pleas without moving to withdraw their plea would open the floodgates to appeals from such

pleas. Also, this procedure would deny the State the benefit of its bargain. The result would

thus be completely contrary to the stated purpose of that rule.

¶ 61 To the extent that there should be exceptions to the holding in Linder or to Rule 604(d),

we believe those exceptions should be carved out explicitly by our supreme court, rather than ad

hoc by the appellate courts.

¶ 62 CONCLUSION

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¶ 63 For the foregoing reasons, the judgment of the circuit court of Iroquois County is

affirmed.

¶ 64 Affirmed.

¶ 65 JUSTICE WRIGHT, specially concurring.

¶ 66 I concur in the result, but take no position with respect to the views expressed in

paragraphs 54-61.

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