People v. Shaw-Sodaro

2023 IL App (4th) 220704
FILED
NO. 4-22-0704 November 22, 2023
Carla Bender
4th District Appellate
IN THE APPELLATE COURT Court, IL

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Whiteside County
TYLER S. SHAW-SODARO, ) No. 18CF366
Defendant-Appellant. )
) Honorable
) Patricia Ann Senneff,
) Judge Presiding.

JUSTICE DOHERTY delivered the judgment and opinion of the court.
Presiding Justice DeArmond and Justice Steigmann concurred in the judgment
and opinion.

OPINION

¶1 Defendant Tyler S. Shaw-Sodaro was convicted of aggravated criminal sexual

abuse (720 ILCS 5/11-1.60(c)(1)(i) (West 2018)) following a jury trial and was sentenced to nine

years’ imprisonment. In this direct appeal, he argues (1) he was denied a fair trial where the

prosecution repeatedly misstated the law in closing arguments, or, in the alternative, that counsel

was ineffective for failing to object and request a curative jury instruction, (2) neither the victim’s

age nor the time from his prior felony conviction justified the enhancement of his sentence, and

the failure to include his pretrial detention period in the computation of the latter would represent

an unconstitutional application of law, and (3) the trial court considered an improper factor

inherent in the offense resulting in an impermissible double enhancement during sentencing. For

the reasons that follow, we affirm.
¶2 I. BACKGROUND

¶3 The State charged defendant with a single count of aggravated criminal sexual

abuse (id.). At the time of the incident that is the subject of this appeal, defendant was engaged to

and shared a home with Monica E. The charging instrument alleged that on or about September 2,

2018, defendant, who was over the age of 17, committed an act of sexual conduct by knowingly

touching the breasts of A.R. (Monica’s niece), who was under the age of 13. The charging

instrument also contained A.R.’s birthdate next to her name, which showed she was 10 years old.

There was no pretrial notice or motion specifically alerting defendant that the State would seek an

extended-term sentence. Defendant posted bail and was released, but he was then arrested on

charges filed in Whiteside County case No. 19-CF-188. Reasoning that he would not be able to

afford bond to secure release on the new charges, defendant filed a motion to exonerate his bond

in this case; his motion was granted, and he was maintained in pretrial detention on the charges in

this case as well as the subsequent charge. A jury trial in this matter commenced on September 22,

2021.

¶4 A. Trial

¶5 The evidence at trial established that, one evening in September 2018, defendant

arrived home after visiting a local tavern. Monica E. was asleep but A.R. was staying at their home

over the weekend. A.R. testified that once defendant returned home, he initially mentioned having

to go to the bathroom but instead sat on the couch next to her. He wrapped his arms around A.R.

giving her “bear hugs,” before he began to kiss her and ultimately placed a hand under her shirt,

groping her chest. She was wearing a tank top with no bra underneath. She then reminded

defendant that he previously said he needed to go to the bathroom. When defendant got up and

went to the bathroom, A.R. put on a sweatshirt in the hopes of preventing the same occurrence

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when he returned. When defendant returned, A.R. told him she was going to go to the back porch

because she was not feeling well. While on the porch, she reached out to her mother and

grandmother, and her mother eventually picked her up from defendant’s home. The day after the

incident, A.R. told her grandparents what had happened. After filing a police report, A.R. gave a

recorded statement about what took place on the night in question. A.R. agreed that she was better

able to remember what happened when she gave her recorded statement shortly after the fact rather

than testifying to the events almost three years later.

¶6 A.R. liked spending time at Monica E. and defendant’s house prior to the incident;

they would swim, “go eat out,” and do “regular things a family should do.” During the summer

months, she spent five days a week at their home—more time than she spent at her own home. She

had a good relationship with both Monica E. and defendant until she reported the incident at issue,

after which Monica blocked her on social media and began telling others that she was lying.

¶7 The State also introduced a recording of the interview with A.R. conducted a day

following the incident. In the recording, A.R. described the incident in far greater detail than she

did in her trial testimony. In her interview, she explained that she believed defendant to be

intoxicated at the time of the events in question and that he could not walk in a straight line. She

also described a second incident, which occurred after she put on the sweatshirt. Defendant

returned from the bathroom and once again began to hug her and put his hand up her sweatshirt;

instead of skin-on-skin contact, defendant was touching her tank top before she stood up and went

to the back porch.

¶8 A.R. also stated she was born in 2007. An officer with the Rock Falls Police

Department and A.R.’s mother both testified that at the time of the offense A.R. was 10 years old.

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¶9 Defendant only called one witness, Monica E. She had dated defendant for

approximately five years. During that time, the two lived together along with her daughter and son.

Defendant had a positive relationship with her children. When asked what A.R.’s reputation for

truthfulness in the community was, Monica responded, “Bad.”

¶ 10 B. Closing Arguments

¶ 11 During its initial closing argument, the State argued that by groping A.R.’s breast,

defendant had committed the offense charged and that sufficient evidence had been introduced for

the jury to find defendant guilty beyond a reasonable doubt. The State further argued, “And that’s

essentially what your job boils down to. Is [A.R.] telling the truth when she says that [defendant]

touched her breast[?] If she is, then the State has met all of the elements of the offense and

[defendant] is guilty as charged.” The State turned its focus to jury instructions related to credibility

and attempted to minimize the fact that A.R. left out certain details during her testimony when

compared to the recorded interview, arguing that

“[i]f you believe [A.R.] was telling the truth and the [d]efendant is guilty of

Aggravated Criminal Sexual Abuse, then you should sign a verdict of guilty.

The only way you cannot sign a guilty verdict is if you believe [A.R.] is

lying. And given all of the circumstances at play here and the fact that she had

nothing to gain by lying, that is simply not a reasonable doubt and doesn’t make

any sense.”

¶ 12 Defense counsel did not object, but instead, during his closing, argued,

“Now, [the State] has suggested to you that the only way you can find my client not

guilty is if you believe [A.R.] lied, and respectfully I disagree. And I would like to

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 take a little bit of time to explain to you why I don’t think that is a correct statement

of the law.

First, this is not a battle of equals. Your job is not to take two equal sides

and weigh them and see which side comes out on top. Our entire criminal justice

system is based on the principle that a defendant, when he is accused or she is

accused, is presumed to be innocent. And that presumption of innocence stays with

them throughout the trial, and throughout our arguments, and throughout your

deliberations unless you find beyond a reasonable doubt that the case has been

proven.

You don’t have to believe that [A.R.] is lying, you just have to have a

reasonable doubt. A doubt in your mind that is reasonable.”

¶ 13 Defense counsel referenced jury instructions that would be given by the trial court,

noting that the presumption of innocence remained with defendant and how “it is not overcome

unless from all of the evidence in this case you, the 12 of you, are convinced beyond a reasonable

doubt that he is guilty.” Counsel then reminded the jury that the State had the burden of proof and

that defendant was not required to “prove anything.” He left the jury with this argument: “Not

guilty means not proved. If you have a reasonable question in your mind about whether you can

believe what [A.R.] said, you must, you must find [defendant] not guilty.”

¶ 14 In the surrebuttal, the State argued again that “if A.R. is telling the truth then

[defendant] is guilty of Aggravated Criminal Sexual abuse and that the only way that he could be

not guilty is if [A.R.] were lying.” Further, if members of the jury believed A.R. was lying, it was

their duty to find defendant not guilty. If they believed she was telling the truth, then it was their

duty to find him guilty. The State also informed the jury that it carried the burden to prove

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defendant committed the offense beyond a reasonable doubt. Defense counsel did not object or

request a curative instruction.

¶ 15 The trial court issued standard instructions on the presumption of innocence and

the burden of proof; these instructions informed the jury that a defendant is presumed innocent of

the charge against him and that the presumption is not overcome unless all of the evidence in the

case establishes guilt beyond a reasonable doubt. The court also informed the jury that the State

bore the burden of proving defendant’s guilt beyond a reasonable doubt, that this burden remains

on the State throughout the case, and that defendant is not required to prove his innocence. The

following instructions were also given:

“Closing arguments are made by the attorneys to discuss the facts and

circumstances in the case and should be confined to the evidence and to reasonable

inferences to be drawn from the evidence. Neither opening statements nor closing

arguments are evidence, and any statement or argument made by the attorneys

which is not based on the evidence should be disregarded.

Only you are the judges of the believability of the witnesses and of the

weight to be given to the testimony of each of them. In considering the testimony

of any witness, you may take into account his ability and opportunity to observe,

his age, his memory, his manner while testifying, any interest, bias, or prejudice he

may have, and the reasonableness of his testimony considered in the light of all of

the evidence in the case.

***

You have before you evidence that [A.R.] made a statement concerning the

offense charged in this case. It is for you to determine what weight should be given

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 to the statement. In making that determination, you should consider the age and

maturity of [A.R.], the nature of the statement, and the circumstances under which

the statement was made.”

The State did not submit a special interrogatory to the jury concerning A.R.’s age at the time of

the offense.

¶ 16 The jury deliberated and ultimately found defendant guilty.

¶ 17 C. Sentencing

¶ 18 At the sentencing hearing, the State argued that defendant was eligible for an

extended-term sentence because (1) A.R. was under the age of 12 at the time of the offense and

(2) defendant had previously been convicted of a Class 1 felony (aggravated robbery) within a

10-year period, computed by excluding the time spent in custody. The prior conviction was the

result of Whiteside County Case No. 09-CF-467, in which defendant was sentenced on January

27, 2010, to 180 days in county jail with no day-for-day credit. The State explained that defendant

had been in custody on the current charge continuously since September 4, 2019, when his bond

was revoked, and that he previously spent approximately three months in custody from December

3, 2018, through March 13, 2019. Excluding the period of pretrial detention from the calculation

meant that less than 10 years had elapsed between the two convictions (i.e., the period would have

exceeded 10 years if the time in pretrial detention were included).

¶ 19 In reviewing the factors in aggravation, the trial court stated it considered A.R.’s

age at the time of the offense. The court imposed an extended-term sentence of nine years in prison

but did not elaborate on what served as the basis for the extended-term sentence.

¶ 20 This appeal followed.

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¶ 21 II. ANALYSIS

¶ 22 Defendant argues that the prosecutor improperly shifted the burden during closing

argument, which he contends amounted to either plain error or ineffective assistance of counsel,

owing to counsel’s failure to object. He also asserts that his extended-term sentence was improper

and that the trial court impermissibly enhanced his sentence based on a factor inherent in the

offense.

¶ 23 A. Closing Argument

¶ 24 While prosecutors have wide latitude in closing arguments, “there are limits to

proper argument.” People v. Simms, 168 Ill. 2d 176, 196 (1995). Prosecutors are not allowed to

misstate the facts or the law as applicable to the case. People v. Carbajal, 2013 IL App (2d)

111018, ¶ 29. “[A] criminal defendant has no duty to produce evidence at trial, and the State may

never shift its burden of proof to a defendant.” People v. Mudd, 2022 IL 126830, ¶ 34. Defendant

acknowledges that he has failed to preserve his claims of improper argument for appeal, but he

requests review under both prongs of the plain error doctrine and, in the alternative, argues

counsel’s failure to object amounted to ineffective assistance of counsel. See People v. Enoch, 122

Ill. 2d 176, 186 (1988) (finding that to preserve an issue for review, a party must raise the issue at

trial and in a written posttrial motion).

¶ 25 1. Plain Error

¶ 26 “The initial analytical step under either prong of the plain error doctrine is

determining whether there was a clear or obvious error at trial.” People v. Sebby, 2017 IL

119445, ¶ 49. Defendant specifically points to the prosecutor’s argument that “[t]he only way you

cannot sign a guilty verdict is if you believe [A.R.] is lying” as error. Our supreme court has

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outlined the difference between permissible arguments concerning the credibility of a witness and

those that are impermissible. The culmination of the court’s decisions in People v. Coleman, 158

Ill. 2d 319 (1994), and People v. Banks, 237 Ill. 2d 154 (2010), establishes that it is permissible

for a prosecutor to argue that a jury would have to believe the State’s witnesses were lying in order

to believe defendant’s version of events, but it is impermissible to argue that the jury would have

to believe the State’s witnesses were lying in order to acquit defendant. Banks, 237 Ill. 2d at

184-85.

¶ 27 The State concedes that the prosecutor’s statements in this instance were

impermissible but argues that they do not constitute plain error under either prong. We accept the

State’s concession of error and proceed to analyze defendant’s claim under the first and second

prong of plain error. Defendant bears the burden of persuasion under both prongs of the plain error

doctrine. People v. Reese, 2017 IL 120011, ¶ 69. If he fails to meet his burden, we will honor the

procedural default. People v. Hillier, 237 Ill. 2d 539, 545 (2010).

¶ 28 Under the first prong, we will reverse only if defendant establishes that the evidence

was so closely balanced that the error alone threatened to tip the scales of justice against him “and

that the prosecutor’s comments were ‘clear or obvious’ reversible error that changed the outcome

of the trial.” Mudd, 2022 IL 126830, ¶ 22; see also People v. Galarza, 2023 IL 127678, ¶ 45.

Recently, our supreme court opined that in the context of improper closing argument,

“the prosecutor’s comment must have had some probable bearing on the result

([citation]), regardless of how the defendant challenges the comment on appeal.

The prosecutor’s comment—whether it is preserved and attacked directly or it is

unpreserved and attacked indirectly via the alternative contentions of plain error

and ineffective assistance—must have been damaging enough that it ‘severely

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 threatened to tip the scales of justice’ against the defendant. [Citations.]” People v.

Williams, 2022 IL 126918, ¶ 57.

¶ 29 Defendant claims that the evidence in this case was closely balanced. To determine

whether the evidence was, in fact, closely balanced, we conduct a qualitative, commonsense

assessment of the evidence relating to the elements of the charged offense as well as any evidence

regarding the witnesses’ credibility. Id. ¶ 58.

¶ 30 To sustain a charge of aggravated criminal sexual abuse, the State was required to

prove that defendant was over the age of 17, that A.R. was under the age of 13, and that an “act of

sexual conduct” was committed. 720 ILCS 5/11-1.60(c)(1)(i) (West 2018). The ages of both

defendant and A.R. were clearly established, leaving the question of whether an act of sexual

conduct was committed as the central issue in the case. To that end, the State relied on the pretrial

recording of A.R.’s explanation of the events made only a day or two after they occurred and her

live testimony. There was no competing version of events put forth by defendant. Instead, A.R.’s

credibility was challenged when Monica E. simply testified that A.R.’s reputation for truthfulness

in the community was “[b]ad.” Effectively, defendant argues that there was a credibility contest

and that the case was closely balanced because it hinged on the believability of the victim.

Defendant’s arguments mirror those made in Williams, where the court found that there was no

credibility contest because there were no differing accounts, only those of the victims. Williams,

2022 IL 126918, ¶ 61. Defendant’s contention that the case was closely balanced simply because

it hinged on the believability of the victim is without merit where there was no credibility contest.

See People v. Sauls, 2022 IL 127732, ¶ 52 (“The positive, credible testimony of a single witness,

even if contradicted by the defendant, is sufficient to convict a defendant.”).

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¶ 31 Here, the jury was presented with a video recording of A.R. days after the incident

in question where she explained the incident, and the jury was also presented with her live

testimony. While there were some inconsistencies between the video recording and the live

testimony, A.R. remained steadfast that defendant committed an act of sexual conduct upon her.

Monica’s testimony that A.R.’s reputation for truthfulness was “[b]ad” does not make this case

closely balanced where there was no motive to lie and no competing version of events put forth by

the defense. A commonsense qualitative analysis of the evidence in this case does not show that

the evidence was closely balanced. The verdict in this case was the result of the substantially

one-sided evidence presented and not an improper argument. The remainder of defendant’s

arguments posed under this prong are more appropriately addressed in the analysis under the

second prong of plain error.

¶ 32 In arguing the error in this case was severe enough to constitute a second prong

error, defendant asserts that it “directly impacted the jurors[’] understanding of the burden of

proof” and made the result of the trial unreliable. Similar to his arguments under the first prong,

defendant contends that the improper arguments during closing arguments “opened the door to the

jurors signing a guilty verdict because they merely believed A.R. was probably telling the truth,

so [defendant] was probably guilty.” (Emphasis in original.)

¶ 33 Under the second prong, we determine whether the “ ‘error is so serious that it

affected the fairness of the defendant’s trial and challenged the integrity of the judicial process,

regardless of the closeness of the evidence.’ ” Galarza, 2023 IL 127678, ¶ 45 (quoting People v.

Piatkowski, 225 Ill. 2d 551, 565 (2007)). Our supreme court has noted that “comments in

prosecutorial closing arguments will rarely constitute second-prong plain error because the vast

majority of such comments generally do not undermine basic protections afforded to criminal

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defendants.” Williams, 2022 IL 126918, ¶ 56 (citing People v. Moon, 2022 IL 125959, ¶ 29, citing

Neder v. United States, 527 U.S. 1, 8-9 (1999)).

¶ 34 We find that defendant has failed to establish second-prong plain error. Despite the

improper arguments from the prosecutor, defense counsel seized on the opportunity to explain the

defect in the State’s argument to the jury, and his argument and explanation were later reinforced

when the trial court instructed the jury. Those very same instructions set forth the burden of proof

upon the State and the presumption of innocence that was afforded to defendant. Further, the court

also instructed the jury that closing arguments did not constitute evidence and that the jurors were

the arbiters of believability and provided the factors that should be used to afford weight to the

testimony of A.R. See People v. Macri, 185 Ill. 2d 1, 52 (1998) (noting that any alleged error

resulting from prosecutor’s argument would have been cured by the trial court’s jury instructions);

People v. Bell, 113 Ill. App. 3d 588, 601 (1983) (finding that “because the jury was properly

instructed on the prosecution’s burden of proof, and the comment did not negate these instructions

or shift the burden of proof to the defendants”). Given the instructions, there was no threat that the

jury was under any misapprehensions about the applicable law. See People v. Glasper, 234 Ill. 2d

173, 215 (2009) (finding where the trial court properly instructed the jury, a prosecutor’s improper

argument was not so prejudicial that the jury ignored the court’s instructions and based verdict on

such argument). The prosecutor himself also diminished the severity of the error where he

consistently informed the jury that the State had the burden of proof to prove defendant guilty

beyond a reasonable doubt.

¶ 35 Accordingly, the prosecutor’s argument in closing was not damaging enough that

it severely threatened to tip the scales of justice against defendant. Williams, 2022 IL 126918, ¶ 57.

¶ 36 2. Ineffective Assistance of Counsel

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¶ 37 In the alternative, defendant claims that he received ineffective assistance because

his counsel failed to object to the statements of the prosecutor during closing arguments. Criminal

defendants are entitled to the effective assistance of counsel. U.S. Const., amends. VI, XIV; Ill.

Const. 1970, art. I, § 8. A defendant’s claim of ineffective assistance of counsel is analyzed under

the two-prong test set forth in Strickland v. Washington, 466 U.S. 668 (1984). People v. Gayden,

2020 IL 123505, ¶ 27. To prevail on a claim of ineffective assistance of counsel, a defendant must

“establish both that counsel’s performance fell below an objective standard of reasonableness and

that a reasonable probability exists that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id.

¶ 38 In order to establish that counsel’s performance was deficient, a defendant must

show that his counsel was so inadequate as to fail as representation guaranteed by the sixth

amendment. People v. Smith, 195 Ill. 2d 179, 188 (2000). There is a strong presumption that the

challenged action or inaction on the part of counsel was the result of sound trial strategy, which is

generally immune from claims of ineffective assistance of counsel. Id.

¶ 39 Here, defense counsel’s arguments on the matter show that he was not unaware of

the State’s arguments, but he chose to forgo an objection as a matter of trial strategy. Instead,

counsel addressed the statements directly with the jury as discussed above, and he did so very

effectively. Counsel informed the jury that the State was misstating the law, that defendant was

presumed innocent, and that the State bore the burden of proof before assailing the credibility of

A.R. We are unable to conclude this was an unsound trial strategy. Defendant has not rebutted the

presumption that the failure to object to the statements in the opening-closing argument by the

State was a sound trial strategy.

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¶ 40 Defendant concedes that defense counsel’s failure to object was trial strategy but

argues it was not a reasonable one, citing cases such as People v. Pegram, 124 Ill. 2d 166 (1988).

We agree with the State that the cases cited by defendant are distinguishable where they involved

the failure to request jury instructions that would have bolstered the chosen defense strategy. The

issue here is not the jury instructions given but defendant’s contention that a further curative

instruction was required.

¶ 41 Regarding the comments in the surrebuttal by the State, defendant has failed to

establish that a reasonable probability exists that, but for counsel’s failure to object, the result of

the proceeding would have been different. We have already found the evidence in this case was

not so closely balanced to allow reversal under the first prong of plain error. Reviewing the closing

arguments in their entirety—as we must—reveals the State commented that it bore the burden of

proof beyond a reasonable doubt. Any prejudice that may have occurred was cured by the trial

court’s jury instructions.

¶ 42 As we have found counsel engaged in a reasonable trial strategy to address the

comments directly and defendant was not prejudiced where the jury was properly instructed, the

ineffective assistance of counsel claim fails.

¶ 43 B. Extended-Term Sentence

¶ 44 Defendant also argues that his extended-term sentence was inappropriate. He

advances two contentions on this point, asserting that (1) to the extent the extended term was based

on the victim’s age, the State failed to comply with statutory requirements in pursuing his

extended-term sentence because A.R.’s age was not listed in the indictment, and it also failed to

submit the question of her age to the jury and (2) the calculation of the time between defendant’s

felony convictions fell below 10 years only because it excluded the time of defendant’s pretrial

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detention and because the latter was due to his inability to post bond it constitutes a violation of

the equal protection clause.

¶ 45 Defendant in this case was charged with aggravated criminal sexual abuse where

the victim was under 13 years of age, a Class 2 felony punishable by imprisonment of 3 to 7 years.

720 ILCS 5/11-1.60(c)(1)(i) (West 2018); 730 ILCS 5/5-4.5-35(a) (West 2022). At sentencing, the

State advanced two theories for an extended-term sentence. First, the State pointed to section

5-5-3.2(b)(3)(i) of the Unified Code of Corrections (730 ILCS 5/5-5-3.2(b)(3)(i) (West 2022)),

which allowed the trial court to consider imposing an extended-term sentence where defendant

committed a felony against a person under 12 years of age at the time of the offense. Establishing

the aggravating factor that A.R. was under the age of 12 increased the statutory sentencing range

to a minimum of 7 years and a maximum of 14. Id. § 5-4.5-35(a). Second, the State argued that,

excluding time spent in custody, defendant had been convicted of a higher class felony within 10

years, also allowing the imposition of a sentence in the 7 to 14 year range. Id. § 5-5-3.2(b)(1).

¶ 46 1. The Age of the Victim

¶ 47 The Illinois Supreme Court case of People v. Ferguson, 132 Ill. 2d 86 (1989),

requires that we discard A.R.’s age as a possible basis for the extended-term sentence. In Ferguson,

the court considered a consolidated appeal where the defendants were all facing felony counts that

had been upgraded to the aggravated version of the offense based on the victim being under the

age of 13. Id. at 95. The court analyzed whether the legislature clearly intended for the imposition

of an extended-term sentence because the victim was under the age of 12 after the charge had

already been enhanced because the victim was under 13. Id. at 97-99. It concluded that such an

intent was not clearly expressed and that “the age of the victim should not be considered for the

imposition of an additional penalty under section 5-5-3.2(b)(3)(i) where the penalty for the

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underlying offense has already been enhanced based on the age of the victim.” Id. at 98. In other

words, once the charge was enhanced to aggravated sexual abuse based on the age of the victim,

an extended-term sentence on the same basis was inappropriate, as it constituted an unsanctioned

double enhancement.

¶ 48 Therefore, A.R.’s age cannot form the basis of defendant’s extended-term sentence.

¶ 49 2. Prior Felony

¶ 50 In addition to the victim’s age, the State argued below that defendant was statutorily

eligible for an extended-term sentence because less than 10 years’ time elapsed between his prior

conviction and the one in this case. The State’s calculation of this period falls below 10 years only

if the time defendant spent in custody, including his pretrial detention, is excluded; the State

contends that the exclusion of this time is required by statute. Defendant argues, however, that his

pretrial detention was solely due to his financial inability to post bond, meaning that the

determining factor in his extended term eligibility was his lack of financial resources. Defendant

argues that this constitutes a violation of the constitutional guarantee of equal protection of the

law.

¶ 51 Before addressing the constitutional argument, however, we must examine its

statutory predicate: that the time spent in pretrial detention on this case is excluded in calculating

the 10 years between felony convictions. See Johnson v. Department of State Police, 2020 IL

124213, ¶ 13 (“cases should be decided on nonconstitutional grounds whenever possible, reaching

constitutional issues only as a last resort”). To the extent we engage in statutory construction while

addressing defendant’s arguments, our review is de novo. People v. Taylor, 2023 IL 128316, ¶ 45.

When construing a statute, our fundamental objective “is to ascertain and give effect to the

legislature’s intent.” Id. The statute in question provides, in pertinent part, as follows:

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 “(b) The following factors, related to all felonies, may be considered by the

court as reasons to impose an extended term sentence under Section 5-8-2 upon any

offender:

(1) When a defendant is convicted of any felony, after having been

previously convicted in Illinois or any other jurisdiction of the same or

similar class felony or greater class felony, when such conviction has

occurred within 10 years after the previous conviction, excluding time spent

in custody, and such charges are separately brought and tried and arise out

of different series of acts[.] ” (Emphasis added.) 730 ILCS 5/5-5-3.2(b)(1)

(West 2022).

¶ 52 The straightforward question of construction presented here is whether “time spent

in custody” includes the time defendant spent in pretrial detention between the two convictions

(i.e., pretrial detention served in relation to the current case). If pretrial detention is not excluded,

there is more than 10 years’ time between convictions and defendant is not extended-term eligible;

if the time is excluded, then the period of time is less than 10 years and defendant is extended-term

eligible.

¶ 53 We begin by noting that in People v. Robinson, 89 Ill. 2d 469 (1982), the Illinois

supreme court superficially appeared to answer this question but, for reasons we will explain, did

not actually address it. In Robinson, the court was faced with the question of whether time spent

in custody on a federal conviction was “time spent in custody” to be deducted from the 10-year

calculation. Id. at 474-75. In doing so, the court interpreted a predecessor to the statutory provision

at issue here which also contained the critical “time spent in custody” exclusion. Id. at 476. The

court found “that ‘time spent in custody’ means time spent in any custody as the result of a

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conviction of a federal crime or violation of another State’s criminal statute.” Id.; see Pub. Act 87-

805, § 3 (eff. Dec. 16, 1991) (amending Ill. Rev. Stat. 1990, ch. 38, ¶ 1005-5-3.2) (addressing the

specific question presented in Robinson—the applicability of a federal conviction—by way of

amendment to the statute at issue).

¶ 54 Looking at the Robinson court’s words outside of the context in which they were

used, one might see an answer to the question presented here: if the statute excludes only “time

spent in custody as the result of a conviction,” then defendant’s pretrial detention—time spent in

custody before his conviction in this case—would not qualify. But we will not take the court’s

words out of context, as it addressed only what type of felony conviction would trigger application

of the statute without ever having reason to consider whether time spent in pretrial detention would

be excluded from the computation. “ ‘A judicial opinion is a response to the issues before the court

*** [and] must be read in the light of the issues that were before the court for determination.’ ”

MB Financial Bank, N.A. v. Brophy, 2023 IL 128252, ¶ 27 (quoting Nix v. Smith, 32 Ill. 2d 465,

470 (1965)); see also People v. Palmer, 104 Ill. 2d 340, 345-46 (1984) (“[T]he precedential scope

of a decision is limited to the facts before the court.”).

¶ 55 Consequently, we do not find Robinson to have precedential value on the specific

issue presented here. We do find in Robinson, however, a clear articulation of the purpose of the

statutory clause at issue which is very helpful to resolving the question presented:

“This conclusion is reinforced by a consideration of the purpose of the

extended-term provision. The aim of recidivist statutes is to impose harsher

sentences on offenders whose repeated convictions have shown their resistance to

correction. [Citation.] Realistically, one can assess an offender’s tendency to

recidivism only when, having served his sentence, he has returned to society; his

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 behavior while in custody can hardly be viewed as a reliable indicator of the

likelihood of his committing another offense when released. Thus, though the

General Assembly chose to create a ‘statute of limitations’ for the use of prior

convictions to extend the sentence of a repeat offender, the limitation is itself

limited, so that the incorrigible recidivist will remain subject to the extended term.”

Robinson, 89 Ill. 2d. at 476.

¶ 56 We believe the reasoning expressed in Robinson extends to exclude from the

calculation of the limitations period pretrial detention on a charge that results in a conviction. The

logic for excluding the time spent in pretrial detention from the limitations period mirrors that of

excluding incarceration following a conviction: that behavior while in custody is an unreliable

indicator of the likelihood of the defendant committing another offense when released. In other

words, a defendant should have to prove his rehabilitation in the world at large, not while in

custody. The plain language of the statute supports this conclusion, as it does not qualify that the

time spent in custody must have been the result of a conviction in order to exclude the same from

the relevant time period.

¶ 57 We also note that defendant’s time spent in custody before conviction may have

been “pretrial” detention at the time, but our current posture is retrospective. We know that

defendant is entitled to credit against his sentence for the days spent in pretrial detention. 730 ILCS

5/5-4.5-100(b) (West 2022). In other words, we now know that defendant had effectively begun

serving his sentence when in the county jail. This is another reason not to treat such time spent in

custody any differently than time spent in custody after conviction.

¶ 58 Defendant attempts to read into the statute a limitation on the type of custody that

is excluded from calculating the time period. See People v. Legoo, 2020 IL 124965, ¶ 14 (noting

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where statutory language is clear and unambiguous it is to be applied as written without reading

into the statute exceptions, limitations, or conditions that the legislature did not express). Rather,

given its plain and ordinary meaning, “custody” would include pretrial detention. See Merriam

Webster Online Dictionary, https://www.merriam-webster.com/dictionary/custody (last visited

Nov. 3, 2023) [https://perma.cc/R56T-ETYN] (“immediate charge and control (as over a ward or

a suspect) exercised by a person or an authority”). Further, other courts of review have

distinguished Robinson in determining that “persons on parole are still within custody, and periods

of parole are ‘time spent in custody’ ” for purposes of calculating eligibility for extended-term

sentencing. People v. Abdullah, 336 Ill. App. 3d 940, 955, (2002); see People v. Burke, 362 Ill.

App. 3d 99, 104-05 (2005).

¶ 59 We therefore conclude that, consistent with the underlying purpose of the statute as

discussed in Robinson, defendant’s time spent “in custody” includes the time spent in pretrial

detention on a charge that results in a conviction. Consequently, he is extended-term eligible

because his two felony convictions were less than 10 years apart. This finding requires us to now

address defendant’s argument that this result is a violation of his constitutional right to the equal

protection of the law because his pretrial detention was solely the result of his financial inability

to post bond.

¶ 60 All statutes are presumed constitutional, and the party challenging a statute’s

constitutionality has the burden of rebutting that presumption and establishing a clear

constitutional violation. People v. Bochenek, 2021 IL 125889, ¶ 10. In conducting an equal

protection analysis, we apply the same standards under the fourteenth amendment of the United

States Constitution (U.S. Const., amend. XIV) and article I, section 2 of the Illinois Constitution

(Ill. Const. 1970, art. I, § 2). People v. Richardson, 2015 IL 118255, ¶ 9. “The constitutional right

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to equal protection guarantees that similarly situated individuals will be treated in a similar manner,

unless the government can demonstrate an appropriate reason to treat them differently.” Id. “The

equal protection clause does not forbid the legislature from drawing proper distinctions in

legislation among different categories of people, but the equal protection clause does prohibit the

legislature from doing so based on criteria wholly unrelated to the legislation’s purpose.” In re

M.A., 2015 IL 118049, ¶ 24. When the legislative classification does not impact a fundamental

right or discriminate against a suspect class, rational basis is the appropriate level of scrutiny to

apply in determining whether the classification reveals a rational relationship between a legitimate

governmental purpose and the classification. Richardson, 2015 IL 118255, ¶ 9.

¶ 61 Defendant acknowledges rational basis is the appropriate standard of review in this

instance. He argues that he was extended term eligible only “because he lacked the financial means

to secure his pretrial release from custody” and a rational basis is lacking for “distinguishing poorer

people from wealthier people and setting different sentencing ceilings for the two groups.”

¶ 62 Preliminarily, we note that it is unclear whether the record supports the factual

premise of defendant’s argument. Defendant posted bond in this case and was released from

pretrial incarceration until he was charged in Whiteside County Case No. 19-CF-188. A review of

court records in that case shows that he was charged with five counts of predatory sexual assault

of a victim under the age of 13, all Class X felonies; one count of predatory sexual assault of a

victim under the age of 13, a Class 1 felony; and two counts of aggravated criminal sexual abuse

of a victim under the age of 13, both Class 2 felonies. See Cordrey v. Prisoner Review Board, 2014

IL 117155, ¶ 12 n.3 (noting courts may take judicial notice of documents from readily verifiable

sources of indisputable accuracy). Once charged in the other case, defendant filed a motion to

exonerate bond in this matter, stating he would not be able to post bond in case No. 19-CF-188.

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Realistically, we understand why defendant moved to exonerate the bond in this matter, as he

would still be subject to imprisonment in his other case. See People v. Arnhold, 115 Ill. 2d 379,

383 (1987) (“[A] defendant who is out on bond on one charge, and who is subsequently rearrested

and returned to custody on another charge, is not returned to custody on the first charge until his

bond is withdrawn or revoked.”). If defendant would not have moved to exonerate his bond, he

would not have been credited for his detention pretrial on this case. Nonetheless, the fact that he

posted bond in this matter and then moved to exonerate it—thereby placing himself back in county

jail on the offense at issue—suggests that, at least as to this case, the reason he was in pretrial

custody is not strictly due to his limited finances.

¶ 63 Turning to the merits of defendant’s equal protection challenge, a classification is

not arbitrary or unreasonable simply “because it is not made with mathematical nicety or because

in practice it results in some inequality.” (Internal quotation marks omitted.) Heller v. Doe, 509

U.S. 312, 321 (1993). The statute’s purpose and design is not directed at persons of limited

financial means, but to determine when a felony recidivist should be eligible for greater

punishment. Because a defendant’s “behavior while in custody can hardly be viewed as a reliable

indicator of the likelihood of his committing another offense when released” (Robinson, 89 Ill. 2d.

at 476), it is rational for the legislature to have deducted such time from the 10-year calculation.

As noted above, defendant was not facing pretrial detention in this case due to his indigency but

because the State was bringing additional charges; in other words, defendant’s detention was likely

due to possible recidivism while on release. We find the application of the statute neither arbitrary

nor an invidious discrimination where defendant was facing multiple cases and could post bond in

this case but not all cases resulting in his pretrial detention. Defendant has failed to carry his burden

in overcoming the presumption of validity afforded to the classification and that the classification

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is not reasonably related to a stated legislative purpose. St. Joan Antida High School Inc. v.

Milwaukee Public School District, 919 F.3d 1003, 1010 (7th Cir. 2019); Szczurek v. City of Park

Ridge, 97 Ill. App. 3d 649, 657 (1981).

¶ 64 Accordingly, defendant’s equal protection challenge as presented is without merit,

as the statute is rationally related to the legitimate government purpose of punishing recidivists

more severely.

¶ 65 C. Double Enhancement

¶ 66 Finally, defendant argues that the trial court improperly relied on a factor inherent

in the offense when crafting his sentence. He argues that where the court mentioned that it had

considered A.R.’s age as an aggravating factor during sentencing, it enhanced his sentence based

on a factor inherent in the offense, resulting in an impermissible double enhancement. Defendant

again acknowledges procedural forfeiture but requests review under the second prong of plain

error, as the alleged errors violated his right to a fair sentencing hearing and unjustly impacted his

fundamental right to liberty.

¶ 67 “It is well established that a factor inherent in the offense should not be considered

as a factor in aggravation at sentencing.” People v. Canizalez-Cardena, 2012 IL App (4th)

110720, ¶ 22. The prohibition against “double enhancements” assumes that the legislature has

already considered the aggravating factor in setting the penalty range for the charged offense.

People v. White, 114 Ill. 2d 61, 65-66 (1986). “Whether the trial court relied upon an improper

factor at sentencing is a question of law reviewed de novo.” People v. Hibbler, 2019 IL App (4th)

160897, ¶ 65.

¶ 68 We first note that this court has outright rejected arguments similar to the one

presented by defendant as not subject to plain error review. See People v. McGath, 2017 IL App

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(4th) 150608, ¶ 68. Citing People v. Ahlers, 402 Ill. App. 3d 726, 733-34 (2010), and People v.

Rathbone, 345 Ill. App. 3d 305, 310-311 (2003), the court in McGath explained that it is

inappropriate to use the plain error doctrine as a general savings clause to preserve all errors

affecting substantial rights that should have been presented in the first instance to the trial court.

McGath, 2017 IL App (4th) 150608, ¶ 68-69. Simply stating that the fundamental right to liberty

is involved does not transmute any error during sentencing into plain error. Id. Despite defendant’s

forfeiture, on this record, we are unable to find the trial court committed a clear or obvious error.

¶ 69 We find this court’s prior decision in People v. Raney, 2014 IL App (4th) 130551,

instructive. In Raney, the defendant was convicted of, among other things, aggravated battery (720

ILCS 5/12-3.05(d)(1) (West 2010)) where he knowingly caused harm to a person 60 years of age

or older. Raney, 2014 IL App (4th) 130551, ¶¶ 1,4. On appeal, the defendant argued that the

sentencing court improperly relied on the fact that the victim was 80 years old as a factor in

aggravation, where the victim’s age was already an element of the offense. Id. ¶ 33. This court

stated that “[i]n cases where the victim’s age is an element of the offense, the court does not err

simply by mentioning the victim’s age at sentencing, as it is relevant to the nature of the case.”

Id. ¶ 35 (citing People v. Thurmond, 317 Ill. App. 3d 1133, 1144 (2000)). Even if the sentencing

court used the victim’s age as an aggravating factor, error did not necessarily result where the exact

age was relevant to the nature of the case and “our society considers sexual abuse of a much

younger child even more reprehensible,” rendering consideration of the age of the victim

appropriate. Id. ¶ 37.

¶ 70 Courts of review have faced the same argument defendant poses numerous times

in different contexts and have often opined that “ ‘ “the nature and circumstances of the offense,

including the nature and extent of each element of the offense as committed by the defendant” ’ ”

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may be considered at sentencing. People v. Saldivar, 113 Ill. 2d 256, 268-69 (1986) (quoting

People v. Hunter, 101 Ill. App. 3d 692, 694 (1981), quoting People v. Tolliver, 98 Ill. App. 3d 116,

117-18 (1981)). We do not find the trial court’s consideration of A.R.’s age at the time of the

offense any different. Moreover, as noted above, we agree that A.R’s age is not a basis for making

defendant extended-term eligible. Still, the court was free to consider A.R.’s age for purposes of

imposing a sentence within the enhanced range. To hold otherwise would force the court to ignore

the nature and circumstances of the offense when imposing a sentence. See id.

¶ 71 III. CONCLUSION

¶ 72 For the reasons stated, we affirm the trial court’s judgment.

¶ 73 Affirmed.

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 People v. Shaw-Sodaro, 2023 IL App (4th) 220704

Decision Under Review: Appeal from the Circuit Court of Whiteside County, No. 18-CF-
366; the Hon. Patricia Ann Senneff, Judge, presiding.

Attorneys James E. Chadd, Catherine K. Hart, Nancy L. Vincent, and
for Roxanna A. Mason, of State Appellate Defender’s Office, of
Appellant: Springfield, for appellant.

Attorneys Terry Costello, State’s Attorney, of Morrison (Patrick Delfino,
for David J. Robinson, and Matthew S. Goldman, of State’s Attorneys
Appellee: Appellate Prosecutor’s Office, of counsel), for the People.

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