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    The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Edward R. CETWINSKI, Defendant-Appellant.
    Appeal No. 3-16-0174
    Appellate Court of Illinois, Third District.
    Opinion filed October 26, 2018
   PRESIDING JUSTICE CARTER delivered the judgment of the court, with 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 5/1213(a)(4) (West 2010) ) and two counts of aggravated criminal sexual abuse (id. § 12-16(d) ).

¶ 4 Prior to trial, the defense arranged for defendant to be examined by a licensed clinical professional counselor. The resulting report listed a number of "Identified Risk Factors," and many more "Factors Mitigating Risk." The cover letter to the report also noted that the results of two diagnostic tests indicated defendant was a low risk to reoffend, though the actual test results were not included in the report. The report variously described defendant as dominant, narcissistic, obsessive, and immature, concluding that "[defendant's] testing indicates very severe character pathology. He has deeply ingrained dysfunctional personality patterns."

¶ 5 The report also contained a number of caveats; for example, it noted:

"Such a severe 'fake good' response set exists that test findings are of questionable validity as [defendant] minimized pathology and presented himself in an unrealistically positive manner. While this minimization is probably conscious, such responses may also be a direct result of [defendant's] pathology. Test findings are presented to indicate how [defendant] wishes others to view him and may not be an accurate reflection of his true clinical picture."

The report also indicated that "[f]urther clinical verification is needed to assist in the interpretation of test findings in light of [defendant's] unique history and present circumstances." Additionally, the report noted that the nature of the testing might tend to deemphasize defendant's strengths and that use of the results for purposes other than clinical screening could be "misleading." The court denied the defense's request to introduce the report into evidence, pointing out that the risk of recidivism would be irrelevant at trial.

¶ 6 On December 2, 2015, the case proceeded to a jury trial. At trial, S.G. testified that she was born in 1994 and was a sophomore at Lincoln-Way Central High School (Lincoln-Way Central) from the fall of 2009 through the spring of 2010. That school year, she participated on the school bowling team. Defendant was one of the team's assistant coaches. She referred to him as "Coach Ed."

¶ 7 S.G. testified that she and defendant initially exchanged phone numbers so that he could help her get her bowling ball redrilled. They began sending text messages to one another after Christmas in 2009, approximately midway through the bowling season. At first, their text messages were only about bowling and coaching. Eventually, S.G. testified, they began "[s]ending dirty texts to each other." S.G. testified that the text messages eventually escalated into a physical relationship. She testified that she and defendant had sexual contact on two occasions. S.G. recalled being interviewed at the child advocacy center. She admitted that she told the interviewer that they had only had sexual contact once. At trial, S.G. explained: "I was scared and nervous and I didn't want to talk to anybody about it and I smashed it together."

¶ 8 S.G. testified that the first incident of sexual contact occurred when defendant gave her a ride home after a bowling tournament. S.G. recalled that on the way home, defendant parked at a bus barn in Manhattan and kissed her. S.G. testified that defendant then put his fingers inside her vagina. Defendant then drove her home.

¶ 9 The second incident of sexual contact also occurred when defendant was driving S.G. home. Defendant again parked by the bus barn and kissed S.G. This time, S.G. testified, defendant asked her to move to the backseat. S.G. did so, moving to the middle of the back bench of defendant's van. She testified that defendant knelt in front of her, put his fingers in her vagina, then put his mouth on her vagina. Defendant indicated to S.G. that he was about to ejaculate, which S.G. took as the reason they did not engage in full intercourse on that occasion.

¶ 10 Steve Provis, the principal at Lincoln-Way Central, testified that defendant's daughter, N.C., and another student approached him on September 10, 2010. Based on that conversation, Provis and another school official spoke to S.G., who indicated that she had been involved in sexual activity with defendant. Provis brought in the school resource officer, who in turn contacted the Manhattan Police Department.

¶ 11 Thomas Friddle testified that he was a detective with the Manhattan Police Department on September 10, 2010, the day he was notified of S.G.'s allegations. As part of his investigation, Friddle interviewed defendant, along with Officer Christopher Spencer. A video recording of that interview was played for the jury.

¶ 12 In the interview, defendant confirmed that he was born in 1969 and that he has been an assistant coach for the Lincoln-Way Central girls bowling team the previous season. Defendant told Friddle that in December 2009 he gave S.G. a ride home after a bowling tournament. Defendant initially stated that nothing unusual occurred on the ride home. He denied ever making a sexual advance or attempting to kiss S.G. Defendant admitted that he and S.G. exchanged occasional text messages but denied that they were sexual in nature.

¶ 13 Friddle informed defendant that investigators would be able to retrieve old text messages, even if they had been deleted. Defendant then admitted that S.G. had sent him text messages that had been sexually explicit. He engaged in sexual role-playing via text message with her. Some of the role-playing involved being in his van. Defendant continued to deny that he ever had physical contact with S.G. of any kind.

¶ 14 Friddle and Spencer pressed defendant to be honest with them. Defendant asked what would happen to him if he was. Spencer replied:

"[M]y report and Officer [Friddle's] report are going to reflect everything that happened here today, okay; and when it gets time-if it gets that far-for somebody to get the consequences for their actions, all that stuff is taken in to consideration. Do you follow me?"

Friddle assured defendant that "[s]exting" with a minor and having physical sexual contact with a minor were "[b]asically the same thing." Defendant then admitted that on the night he drove S.G. home, he parked the van and they began kissing. He touched her under her shirt, then they moved to the back of his van. Defendant told the investigators that he performed oral sex on S.G. but did not engage in sexual intercourse because he "prematurely finished." Defendant later provided a written statement acknowledging that he had performed oral sex on S.G.

¶ 15 Defendant's father, Joseph Cetwinski, testified for the defense. He testified that he and defendant were assistant coaches for the girls bowling team in the 2009-10 season. Joseph, defendant, and N.C., would always drive together to the school before bowling events, except for one time. Joseph recalled on that one occasion, defendant informed him that S.G. needed a ride. Joseph drove to the school with N.C. that day. Defendant took S.G. home after the meet ended. Joseph testified that nothing unusual happened that evening when defendant returned from taking S.G. home.

¶ 16 Michele Stultz, defendant's girlfriend, testified that in September 2010, N.C. informed her that rumors regarding defendant were spreading at school. Stultz informed defendant, who instructed Stultz to tell N.C. to talk to the school principal. Stultz relayed the instruction to N.C.

¶ 17 N.C., defendant's daughter, testified that in September 2010, her friends informed her that S.G. was bragging about sleeping with defendant. N.C. told Stultz because defendant was in Missouri at the time. On Stultz's advice, N.C. told Provis of the rumors. N.C. also testified that a few days after she went to the principal, she overheard S.G. in the hallway saying that "she made it all up, she was just trying to be part of the popular kids who all had older boyfriends and did stuff with them." On cross-examination, N.C. agreed that twice during the bowling season she and Joseph drove to and from school for bowling meets without defendant. N.C. did not contact school authorities or the police when she overheard S.G. state that she "made it all up."

¶ 18 Defendant testified that S.G. sent him flirtatious or sexual related text messages and that he responded. Defendant admitted that on one occasion during the bowling season, S.G. asked him for a ride to school for the meet. Defendant picked S.G. up at her house and drove her to the school. After the meet, he drove her home. He never stopped at a bus barn and did not try to kiss S.G. They did not go into the back of his van, and he did not perform oral sex on her. He never did anything physically sexual with S.G.

¶ 19 At some point in 2010, defendant was in Missouri when he received a phone call from Stultz regarding the present allegations. Defendant told Stultz to instruct N.C. to talk to the school principal. When defendant returned from Missouri, he had a "brief conversation" with N.C. in which she told him that she had gone to the principal's office.

¶ 20 Defendant recalled going to the Manhattan Police Department to be interviewed by Friddle and Spencer. Defendant testified that as he walked to the interview room, he overhead Friddle and Spencer engaging in "a conversation about an incident that had happened with somebody having a premature ejaculation during a sexual event." Defendant thought that description "sounded pretty similar" to what he had heard from N.C. Regarding the interview, defendant explained that he admitted to doing something that he did not actually do. Defendant continued:

"I've never been in a situation such as that before and I was very nervous. And I was under the assurance that if I told them details of an incident that happened I would be able to go home that evening and that they would work with me. So I just told them what I had already heard prior to coming in."

¶ 21 On cross-examination, defendant testified that he was a high school graduate and was currently enrolled in college. He was 41 years old at the time of his interview at the police station and considered himself to be of above-average intelligence. Defendant signed his written statement approximately 2½ hours after arriving at the police station, though, he testified, it felt like much longer. There were two breaks in the interview.

¶ 22 Sheri Krohn testified in rebuttal that she was the bus driver for all of the bowling team's meets and tournaments during the 2009-10 season. At one meet, she noticed S.G. wearing defendant's jacket and "following him around a lot." She told defendant to "be careful because [S.G.] had a crush on him."

¶ 23 The State also recalled Friddle on rebuttal. Friddle denied having any conversation with defendant or Spencer regarding the investigation while the three men were together just prior to the interview.

¶ 24 Following closing arguments, the court tendered instructions to the jury. The court explained that the jury would eat lunch in the jury room and select a foreperson prior to commencing deliberations. After conferring with the attorneys, the court continued:

"Okay. All right. I wanted to talk with the attorneys. I know that some of you want to go outside for a few minutes. So the agreement is that before you do anything you are going to go outside, have your cigarette, and that's okay, because once you get in there you can't leave. And once you start deliberating, you can't leave. So that is what will happen. Those who want to go out and have a cigarette, go ahead. And then when you come back to the room, you are not allowed to leave after that. Let's see, it's ten to three now. Make sure you are back in by 3:00 ***. So make sure everybody is back in there at three to start your deliberations. If you are out there smoking, you cannot talk about the case. *** Just simply enjoy your tobacco and come back, okay?"

¶ 25 The jury found defendant guilty on all counts. The signed verdict forms were file-stamped December 7, 2015, 4:55 p.m.

¶ 26 Defendant subsequently filed a motion for new trial. In the motion, defendant argued, inter alia , that "the jury failed to give proper weight and/or deference to the task of deliberating." In support of this argument, defendant alleged that the jury had been released for deliberations at 3 p.m., "following a brief, Court-permitted smoke break," and that defense counsel received a phone call from the court clerk at 4:10 p.m. notifying him that the jury had reached a verdict. The court denied defendant's motion.

¶ 27 On January 26, 2016, the court sentenced defendant to a term of six years' imprisonment for criminal sexual assault and four years' probation for aggravated criminal sexual abuse. The court noted that defendant would also be subject to mandatory reporting as a sex offender upon his release.

¶ 28 ANALYSIS

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

¶ 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, 165 N.E. 196 (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, 333 Ill.Dec. 642, 915 N.E.2d 448 (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, 189 N.E.2d 295 (1963). The supreme court has since explained that " Sprinkle was primarily concerned with the risk of alienating the jury by appearing disrespectful of the court's authority." People v. McLaurin , 235 Ill. 2d 478, 487, 337 Ill.Dec. 221, 922 N.E.2d 344 (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, 337 Ill.Dec. 221, 922 N.E.2d 344 (quoting People v. Davis , 378 Ill. App. 3d 1, 10, 317 Ill.Dec. 54, 880 N.E.2d 1046 (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.

¶ 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, 312 Ill.Dec. 338, 870 N.E.2d 403 (2007). We acknowledge that the parties dispute whether this court should apply a de novo or an abuse of discretion standard of review. We need not settle that dispute because, under either standard, it is clear that the circuit court committed no error in its comments.

¶ 37 Defendant insists that the court's comments implied that the members of the jury would be forced to remain in the jury room, without exception, until they reached a verdict. In essence, the defendant argues, the jury would be trapped in the room. This interpretation is simply not tenable when taking the court's remarks in context. We find it is unlikely that any juror would take those comments to mean that they would be confined in the jury room against their will.

¶ 38 An examination of the court's full remarks makes clear that the court was specifically addressing any jurors that wished to have a cigarette before deliberations began, as it referenced smoking or tobacco four times within those brief remarks. The court was merely informing the jurors that they would be afforded no smoking breaks after deliberations had begun. Defendant insists that the court "did not restrict its direction to the smokers." Yet the court clearly prefaced its smoking-related instructions by stating "I know that some of you want to go outside for a few minutes." Short of physically separating the smokers from the nonsmokers, it is unclear what steps defendant would have had the court take to address the smokers.

¶ 39 Indeed, the court's innocuous smoking restriction in the present case is a far cry from the example of the egregious treatment of a jury in the late seventeenth century, a formative period in the common law with respect to jury control. In the famous trial of William Penn and William Mead, the court repeatedly refused to accept a verdict with which it did not agree. The court instructed the jury:

"Gentlemen, you shall not be dismissed till we have a verdict that the court will accept; and you shall be locked up, without meat, drink, fire, and tobacco; you shall not think thus to abuse the court; we will have a verdict, by the help of God, or you shall starve for it." Trial of Penn and Mead (1670) 6 How. 951, 963.

The jurors in that case were only able to escape their detention after requesting the Court of Common Pleas to issue a writ of habeas corpus . Bushell's Case (1729) 84 Eng. Rep. 1123; 6 How. 999 (Common Pleas) (a seminal case discussing the role of jurors and establishing the principle of jury nullification). 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 agreed upon their verdict." Ill. Rev. Stat. 1845, ch. 30, § 189 ; 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, 345 Ill.Dec. 560, 939 N.E.2d 403 (2010), our supreme court found that the circuit court's failure to properly admonish a jury of the Zehr principles ( People v. Zehr , 103 Ill. 2d 472, 83 Ill.Dec. 128, 469 N.E.2d 1062 (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, 345 Ill.Dec. 560, 939 N.E.2d 403.

¶ 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, 98 Ill.Dec. 638, 494 N.E.2d 760 (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, 78 Ill.Dec. 749, 462 N.E.2d 868 (1984), the jury deliberated for 4½ hours before informing the court that it was deadlocked. The court addressed the jury, referencing the possibility of sequestration, and a verdict was delivered 10 minutes later. Again, the reviewing court found reversible error. Even in the foundational cases for this particular point of law- Farnham v. Farnham , 73 Ill. 497, 502 (1874), and Golub , 333 Ill. at 561, 165 N.E. 196 -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 [336 Ill.Dec. 295, 920 N.E.2d 504] (2009).

¶ 45 We would reach the same conclusion here. Given the significant and compelling evidence against defendant-including a video recording of his own confession-it is perfectly plausible, if not expected, that the jury could reach a prompt verdict. The circuit court's remarks that the jury would not be afforded multiple smoking breaks were not improper, and the understandably prompt verdict is not evidence that the jury reached its verdict under any form of duress.

¶ 46 II. Constitutionality of Sex Offender Statutory Scheme

¶ 47 Defendant next argues that the statutory scheme of lifetime penalties to which he is subject as a convicted sex offender and sexual predator is unconstitutional as applied to him on the grounds that it violates the United States Constitution's prohibition of cruel and unusual punishment ( U.S. Const., amend. VIII ) and the Illinois Constitution's proportionate penalties clause ( Ill. Const. 1970, art. I, § 11 ).

¶ 48 Importantly, defendant challenges the constitutionality of several statutes pertaining to convicted sex offenders, rather than a single statute. The primary piece of that statutory scheme is the Sex Offender Registration Act (SORA) ( 730 ILCS 150/1 et seq. (West 2016) ), which, inter alia , acts to classify defendant as a sexual predator and imposes a lifelong duty to register. The statutory scheme also includes the Sex Offender Community Notification Law (Notification Law) ( 730 ILCS 152/101 et seq. (West 2016) ), as well as dispersed statutory sections prohibiting sex offenders' presence in or around schools and parks ( 720 ILCS 5/11-9.3 (West 2016) ), prohibiting sex offenders' petition for a name change ( 735 ILCS 5/21-101(b) (West 2016) ), and requiring sex offenders to renew their driver's license annually ( 730 ILCS 5/5-5-3(o) (West 2016) ).

¶ 49 A. Punishment

¶ 50 The eighth amendment to the United States Constitution prohibits the imposition of "cruel and unusual punishments." U.S. Const., amend. VIII. "The concept of proportionality is central to the Eighth Amendment." Graham v. Florida , 560 U.S. 48, 59, 130 S.Ct. 2011, 176 L.Ed.2d 825 (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, 250 Ill.Dec. 670, 739 N.E.2d 433 (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, --- Ill.Dec. ----, --- N.E.3d ----, described the post- Malchow evolution of SORA:

"[The legislature has] imposed specific restrictions on where sex offenders may be present or live. See 720 ILCS 5/11-9.3, 11-9.4-1 (West 2012). Sex offenders cannot have jobs where they work, at any time for any reason, within 500 feet of a school or public park or within 100 feet of a school bus stop. Id. SORA also effectively bars offenders from working any job requiring extensive travel; sex offenders must notify, in person, both Illinois law enforcement and the destination's law enforcement when they are away from home for three or more days. 730 ILCS 150/3(a) (West 2012). The amendments since Malchow 'directly restrict where [a sex offender] can live, work, and even move about his community.' People v. Avila-Briones , 2015 IL App (1st) 132221, ¶ 51 [401 Ill.Dec. 40, 49 N.E.3d 428]. 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, --- Ill.Dec. ----, --- N.E.3d ----, 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, --- Ill.Dec. ----, --- N.E.3d ---- ; Kochevar , 2018 IL App (3d) 140660, ¶¶ 56-63, --- Ill.Dec. ----, --- N.E.3d ----. 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, --- Ill.Dec. ----, --- N.E.3d ---- (citing Doe v. Department of Public Safety & Correctional Services , 430 Md. 535, 62 A.3d 123 (2013), Gonzalez v. State , 980 N.E.2d 312, 321 (Ind. 2013), Starkey v. Oklahoma Department of Corrections , 2013 OK 43, 305 P.3d 1004, State v. Letalien , 2009 ME 130, 985 A.2d 4, State v. Williams , 129 Ohio St. 3d 344, 2011-Ohio-3374, 952 N.E.2d 1108, and Commonwealth v. Baker , 295 S.W.3d 437 (Ky. 2009) ). Ultimately, the Tetter court concluded: "Although the sex offender statutes' restrictions may present fair and just punishment in many or most cases, they nonetheless constitute punishment. Most notably, sex offender statutes punish sex offenders by restricting their liberty to live where they wish and move about the community." Id. Applying the same analysis, the Kochevar court reached the same conclusion, finding that "the sex offender statutory scheme has morphed from civil regulation into something that is indeed punitive." Kochevar , 2018 IL App (3d) 140660, ¶ 63, --- Ill.Dec. ----, --- N.E.3d ----.

¶ 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, 130 S.Ct. 2011 (quoting Harmelin v. Michigan , 501 U.S. 957, 997, 1000-01, 111 S.Ct. 2680, 115 L.Ed.2d 836 (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, 298 Ill.Dec. 169, 839 N.E.2d 492 (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, 298 Ill.Dec. 169, 839 N.E.2d 492.

¶ 57 In Tetter , this court found, as a matter of first impression, that a proportionality challenge to the statutory scheme applicable to sex offenders is best addressed under the three-factor inquiry set forth in Solem v. Helm , 463 U.S. 277, 290-92, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). Tetter , 2018 IL App (3d) 150243, ¶ 73, --- Ill.Dec. ----, --- N.E.3d ---- ; see also Kochevar , 2018 IL App (3d) 140660, ¶ 64, --- Ill.Dec. ----, --- N.E.3d ---- (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, 103 S.Ct. 3001. 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, 103 S.Ct. 3001. 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, 103 S.Ct. 3001. 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, --- Ill.Dec. ----, --- N.E.3d ----.

¶ 58 Defendant was convicted of criminal sexual assault, a Class 1 felony. 720 ILCS 5/1213(a)(4), (b)(1) (West 2010). 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.

In contrast, many more felony offenses categorized as a lesser degree are subject to SORA requirements. E.g. , id. § 10-5.1(g)(1) (Class 4 luring of a minor); id. § 11-25(b) (Class 4 grooming); id. § 11-18.1(c) (Class 2 or 3 patronizing a minor engaged in prostitution). The commission of certain misdemeanor offenses may also subject an offender to SORA requirements. E.g. , id. § 11-9.1(a), (c)(1) (Class A sexual exploitation of a child); id. § 10-5.1(b), (g)(2) (Class B luring of a minor).

¶ 59 Under SORA, convictions for certain enumerated offenses trigger the "sexual predator" designation, through which offenders are made subject to the SORA requirements for life. 730 ILCS 150/2(E)(7) (West 2016). Even within this select group of offenses, criminal sexual assault is still not the least serious offense, as the list includes misdemeanor offenses (720 ILCS 5/105.1(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, --- Ill.Dec. ----, --- N.E.3d ----. The two eventually entered into a consensual sexual relationship. Id. ¶ 8. That relationship continued after the defendant learned that the victim was actually 16 years old. Id. ¶ 9. The victim's mother alerted authorities after she learned that the victim had become pregnant. Id. ¶ 13. The defendant was convicted of aggravated criminal sexual abuse, a Class 2 felony. Id. ¶ 5. The circuit court sentenced him to 180 days in the county jail. Id. ¶ 21.

¶ 62 In Kochevar , the defendant was 16 years old when he entered into a relationship with the 14-year-old victim. Kochevar , 2018 IL App (3d) 140660, ¶ 4, --- Ill.Dec. ----, --- N.E.3d ----. 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.

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, 269 Ill.Dec. 503, 781 N.E.2d 300 (2002). This conclusion is reflected in the sentencing ranges in each case; while the sentences in both Tetter and Kochevar were measured in days in the county jail, defendant was sentenced to six years' imprisonment, two years above the minimum for a Class 1 felony. See 730 ILCS 5/5-4.5-30(a) (West 2014).

¶ 64 In attempting to minimize the gravity of his offense on appeal, defense emphasizes that "there was no force used in the alleged incidents[ ] and there was only one victim." Initially, we note that criminal sexual assault is a Class 1 felony whether it is the result of the use of force or the result of an older person taking advantage of their position of trust or authority over a minor (see 720 ILCS 5/11-1.20 (West 2014) ), belying defendant's implication that his offense is inherently less serious in nature than forcible assault. Further, the fact that there was only one victim does nothing to diminish the seriousness of the offense, it merely means that defendant only committed one offense, rather than two or three.

¶ 65 While defendant's offense was serious, we must also be careful not to downplay the severity of the punishment defendant faces. As a sexual predator, defendant is subject to a lifetime of SORA and the Notification Law requirements, among other restrictions. As the Kochevar court described, defendant "faces a lifetime of employment rejection, public disdain, impairment of his enjoyment of parental involvement and his discharge of parental responsibilities, curtailment of his liberty to live where he chooses and to move freely about his community, suspicion, and permanent stigma." Kochevar , 2018 IL App (3d) 140660, ¶ 49, --- Ill.Dec. ----, --- N.E.3d ----.

¶ 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 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, 298 Ill.Dec. 169, 839 N.E.2d 492 (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, 209 Ill.Dec. 782, 652 N.E.2d 322 (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, 343 Ill.Dec. 923, 935 N.E.2d 1151 (2010). Further, it stands to reason that a defendant's relative risk of recidivism is also a proper consideration, as one less likely to reoffend must have a greater chance of restoration to useful citizenship. However, the nature and circumstances of the offense are themselves factors to be considered in the determination of rehabilitative potential. Id.

¶ 70 While defendant certainly had an unblemished record prior to committing the present offense, his risk of recidivism is far less clear. Defendant posits that "the positive aspects of the sex offender report[ ] strongly suggest that the offenses Defendant was convicted of here are unlikely to recur." The "negative aspects" of that report, such as the conclusions that defendant suffered from a "very severe character pathology" and had "deeply ingrained dysfunctional personality patterns" suggest a different story. Most importantly though, the sex offender report is equivocal. The report itself cautions that the test findings were of "questionable validity" on the grounds that defendant provided such an extreme set of "fake good" answers so as to present himself in an unrealistically positive manner. The report concludes that the use of the results for purposes other than clinical screening could be "misleading." Indeed, even defendant on appeal concedes that "the sex offender evaluation may not be entirely valid."

¶ 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.

¶ 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.

Justice Lytton concurred in the judgment and opinion.

Justice Wright specially concurred, with opinion.

¶ 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, 304 Ill.Dec. 290, 852 N.E.2d 540 (2006) ("It is well settled that when our supreme court has declared law on any point, only it can modify or overrule its previous decisions, and all lower courts are bound to follow supreme court precedent until such precedent is changed by the supreme court.").

¶ 78 I also write separately because I strongly disagree that the analysis in Tetter , on which this court now relies, is exhaustive. In my dissent in Tetter , I characterized the outcome in Tetter as a "hazy holding." People v. Tetter , 2018 IL App (3d) 150243, ¶ 90, --- Ill.Dec. ----, --- N.E.3d ----. 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, 369 Ill.Dec. 117, 986 N.E.2d 66 ; see also People v. Pepitone , 2018 IL 122034, 423 Ill.Dec. 816, 106 N.E.3d 984.

¶ 80 In spite of my own research efforts, I have yet to discover these legislative provisions, effective after the March 21, 2013, holding in Cardona , that justify the holding in Tetter . In Tetter , I disagreed with the majority's rush to become the first reviewing court in Illinois to find the registration requirements and other statutory restrictions for convicted sex offenders have become punitive. After Tetter , our court has praised the rationale of Tetter in Kochevar and now in this decision. Respectfully, I do not share these views of the holding in Tetter .

¶ 81 For purposes of this appeal, I fully adhere to the position set forth in my dissent in Tetter. I maintain that the legislative provisions vaguely referenced in Tetter are regulatory measures designed for public safety. These regulations create informational tools and protective safe zones that allow parents, neighbors, and other members of the public to minimize the risk of becoming the next unsuspecting target of a recidivist sex offender.

¶ 82 In conclusion, I agree with the result in this appeal on all issues. However, I conclude defendant's subjugation to the statutory scheme of lifetime consequences as a convicted sex offender is not unconstitutional because those consequences are regulatory, protective, and nonpunitive.

      Jury deliberations began on December 7.

      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.

      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, 104 S.Ct. 1970, 80 L.Ed.2d 565 (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) ).

      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).

      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, 269 Ill.Dec. 503, 781 N.E.2d 300 (2002).

      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).

      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).


source: Caselaw Access Project

license: Public Domain

text:
    The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Overath BARAJAS, Defendant-Appellant.
    Appeal No. 3-16-0433
    Appellate Court of Illinois, Third District.
    Opinion filed November 1, 2018 Rehearing denied December 3, 2018
   JUSTICE LYTTON delivered the judgment of the court, with opinion.

¶ 1 Defendant, Overath Barajas, appeals from the circuit court's order granting in part and denying in part his motion to revoke fines imposed in case Nos. 02-TR-10880, 02-TR-19427, and 02-TR-19429. We vacate and remand with directions.

¶ 2 FACTS

¶ 3 On May 17, 2002, in case No. 02-TR-10880, the State charged defendant with operating an uninsured motor vehicle ( 625 ILCS 5/3-707 (West 2002) ). Defendant pled guilty to the offense. The court sentenced defendant to pay $650 in fines.

¶ 4 On October 15, 2002, in case No. 02-TR-19427, the State charged defendant with operating a motor vehicle when his registration was suspended for lack of insurance (id. § 3-708). On October 29, 2002, the court entered an ex parte judgment due to defendant's failure to appear. The court found defendant guilty of the charged offense and sentenced defendant to pay $1000 in fines.

¶ 5 Also on October 15, 2002, in case No. 02-TR-19429, the State charged defendant with operating an uninsured motor vehicle (id. § 3-707 ). On October 29, 2002, the court entered an ex parte judgment due to defendant's failure to appear. The court found defendant guilty of the charged offense and sentenced defendant to pay $501 in fines.

¶ 6 On April 27, 2016, defendant filed a motion for revocation of fines in case Nos. 02-TR10880, 02-TR-19427, and 02-TR-19429. Defendant alleged that he was unable to pay the fines imposed in these cases because he was then serving a five-year prison sentence on an unrelated charge and earned only $10 per month. Defendant said that he would be released on mandatory supervised release 11 months from the date of the motion. Defendant alleged the following "good cause" for his inability to pay his fines:

"1. [Defendant] must find housing to parole to.
2. [Defendant] must find employment as an ex-offender.
3. [Defendant] may have to attend programs for rehabilitation possibly recomended [sic ] by the Prisoner Review Board, and pay fees for attendance.
4. [Defendant] has no family with the financial means to assist him upon release."

Defendant filed with his motion an affidavit of finances and property. Defendant attested that he (1) earns an income of $10 per month while incarcerated; (2) owns no property; (3) must find housing upon his release from prison to comply with the terms of his mandatory supervised release; (4) has no employment awaiting him upon release and has no income or other funds available; (5) will need to find employment as an ex-offender; (6) has no insurance, equities, real estate, annuities or inheritance; and (7) has no family with financial means to assist him upon release from the Department of Corrections.

¶ 7 The court found that defendant's income was $10 per month. In case No. 02-TR-10880, defendant paid $894 of the combined fines and fees balance of $926. The court ruled that defendant had shown good cause to revoke the $32 balance of his fines. With regard to case Nos. 02-TR-19427 and 02-TR-19429, the court denied defendant's motion. The court explained that "[a]lthough the defendant has shown that that [sic ] he is currently unable to pay said fines, he has not shown good cause for why over the period of the last 14 years or so * * * very little has been paid on these cases." Defendant filed a notice of appeal in case Nos. 02-TR-10880, 02-TR19427, and 02-TR-19429.

¶ 8 ANALYSIS

¶ 9 Defendant argues that the court abused its discretion when it denied his motion to revoke fines in case Nos. 02-TR-19427 and 02-TR-19429. Defendant does not contest the court's ruling in case No. 02-TR-10880 in this appeal. Upon review of the record, we find that the circuit court applied the incorrect standard when it ruled on defendant's motion to revoke fines as the statutory good cause standard considers only defendant's inability to pay or hardship and not the amount of fines paid.

¶ 10 Section 5-9-2 of the Unified Code of Corrections (Code) provides, "the court, upon good cause shown, may revoke the fine or the unpaid portion or may modify the method of payment." 730 ILCS 5/5-9-2 (West 2016). The "upon good cause shown" standard is ambiguous. See id. In an attempt to define this standard, we reviewed the legislative history of Public Act 77-2097, which enacted section 5-9-2, and Public Act 87-396, which amended this section. See Pub. Act 77-2097, § 5-9-2 (eff. Jan. 1, 1973) (adding 730 ILCS 5/5-9-2 ); Pub. Act 87-396, § 1 (eff. Jan. 1, 1992) (amending 730 ILCS 5/5-9-2 ). The record of the legislative proceedings on both of these acts provided no clarification of the good cause standard. In the absence of legislative history, we look to the council commentary in the annotated statute for guidance. In re B.L.S. , 202 Ill. 2d 510, 517, 270 Ill.Dec. 23, 782 N.E.2d 217 (2002) ; see also People v. Ross , 168 Ill. 2d 347, 352, 213 Ill.Dec. 672, 659 N.E.2d 1319 (1995) (council commentary is persuasive authority). The council commentary to section 5-9-2 states "[t]he section is designed to mitigate a fine on a showing of inability to pay or hardship." 730 ILCS Ann. 5/5-9-2, Council Commentary, at 303 (Smith-Hurd 2007). The council commentary establishes that a showing of good cause is tantamount to showing an inability to pay or a hardship that prevents a defendant from paying his fines. Consistent with the council commentary, the Fourth District has observed that a court need not consider a defendant's ability to pay at the time it imposes fines because "safeguards exist for those who in good faith are unable to pay a fine." People v. Ruff , 115 Ill. App. 3d 691, 695, 71 Ill.Dec. 490, 450 N.E.2d 1369 (1983). Those safeguards include the fine revocation provisions of section 5-92. Id. Therefore, to warrant revocation of a defendant's fines, defendant must establish "good cause," which is an "inability to pay" or a "hardship" that prevents him from paying the fines imposed by the court. 730 ILCS Ann. 5/5-9-2, Council Comments-1973, at 303 (Smith-Hurd 2007).

¶ 11 The court's order in the instant case establishes that it not only considered defendant's inability to pay but also the amount of payments that defendant had made in each of the cases. The trial court found that, although the defendant established good cause with regard to one fine, he had not been diligent with the other two fines over the preceding 14 years. The court thus failed to establish good cause with regard to them. In making this finding, the court erroneously expanded the good cause standard beyond inability to pay or hardship to include prior diligence as shown by the portion of the fines he had or had not previously paid. This was an abuse of its discretion. Therefore, we vacate the court's order revoking fines in case No. 02-TR-10880 and denying defendant's motion as to case Nos. 02-TR-19427, and 02-TR-19429. We remand the cause with directions for the court to consider only defendant's allegations and evidence of inability to pay or hardship to determine if he has established good cause to revoke his fines.

¶ 12 CONCLUSION

¶ 13 The judgment of the circuit court of Kankakee County is vacated and remanded with directions.

¶ 14 Vacated and remanded with directions.

Justice McDade concurred in the judgment and opinion.

Justice Wright dissented, with opinion.

¶ 15 JUSTICE WRIGHT, dissenting:

¶ 16 I respectfully dissent. I strongly disagree that "good cause" is an ambiguous term. This term is frequently included in boilerplate contract language that is subject to judicial construction. To hold that the term is ambiguous, in this particular context, could have far reaching and unintended legal consequences.

¶ 17 Here, defendant requested the trial court to vacate several fines from various cases spanning many years. The majority takes issue with the trial court's decision to examine the amounts defendant actually paid in one case when determining whether defendant was unable to pay court ordered monetary consequences in all cases. I respectfully disagree that the trial court expanded the good cause standard beyond inability to pay or hardship.

¶ 18 It is impossible to prepare a finite list of circumstances that should or should not be considered by a trial judge conducting a good cause analysis on a case-by-case basis. Every defendant and every case is unique and must be treated accordingly. Of course, a trial judge must examine the reason defendant paid some part of the court ordered fines in the past but is now claiming an inability to pay other fines in the future. Past history of payment is the best method to evaluate good cause.

¶ 19 Chronic nonpayment, in spite of release, supports two explanations. Either defendant was unable to pay or defendant was unwilling to pay. The former explanation is good cause, while the latter explanation is not.

¶ 20 After the imposition of fines for the 2002 traffic violations, defendant was resourceful enough to find the means to secure alcohol and an automobile, resulting in a subsequent conviction for a third driving under the influence and a felony driving while license revoked while his 2002 fines were unpaid. Based on this record, I conclude the experienced trial judge did not abuse his discretion by reducing the small balance due on one file, case No. 02-TR10880, rather than reducing the entire balance due on all fines including case Nos. 02-TR-19427 and 02-TR-19429.

¶ 21 I have great faith in the judiciary to recognize good cause when it presents itself to the court. It is impossible to evaluate a future ability to pay following release from prison without considering defendant's past history of payment when not incarcerated. For these reasons, I respectfully dissent.


text:
    The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Gordon K. MOORE II, Defendant-Appellant.
    Appeal No. 3-16-0271
    Appellate Court of Illinois, Third District.
    Opinion filed November 5, 2018
    James E. Chadd, Peter A. Carusona, and Amber Hopkins-Reed, of State Appellate Defender's Office, of Ottawa, for appellant.
    Jerry Brady, State's Attorney, of Peoria (Patrick Delfino, David J. Robinson, and Justin A. Nicolosi, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
   PRESIDING JUSTICE CARTER delivered the judgment of the court, with opinion.

¶ 1 After a stipulated bench trial, defendant, Gordon K. Moore II, was convicted of first degree murder ( 720 ILCS 5/9-1(a)(1) (West 2010) ) and sentenced to 45 years in prison. Defendant's conviction and sentence were affirmed on direct appeal. People v. Moore , 2013 IL App (3d) 120275-U, ¶¶ 1, 19, 2013 WL 1646090. Defendant filed a pro se postconviction petition, alleging actual innocence based on newly discovered evidence. The trial court summarily dismissed the petition in the first stage of proceedings. Defendant appeals, arguing that (1) the trial court erred in summarily dismissing his postconviction petition, and (2) certain fines that were imposed upon him as part of his sentence must be vacated because the fines were imposed by the circuit clerk and not ordered by the trial court. We affirm the trial court's summary dismissal of defendant's postconviction petition and dismiss the remainder of defendant's appeal for lack of appellate jurisdiction.

¶ 2 FACTS

¶ 3 In February 2011, defendant was charged with first degree murder for the stabbing death of his estranged wife, Teresa Moore. In pretrial discovery, defendant notified the State that he intended to assert at trial that "he suffered serious provocation, which when viewed in light of [his] depressed mental state, caused him to act under a sudden and intense passion." In other words, defendant was going to try to raise at trial that the killing was second degree murder and not first degree murder. To support that assertion, defendant planned to have two mental health professionals who had seen defendant both before and after the offense testify as expert witnesses at trial regarding defendant's mental state at the time of the offense and the effect that the pending divorce, the potential loss of his children, and defendant's use of alcohol and prescription medication had on his mental state. The State filed a motion in limine to exclude that testimony. A hearing was later held on the motion.

¶ 4 At the hearing, the trial court reviewed a report from one of the proposed expert witnesses and a letter from the other. Of relevance to this appeal is the report. The report indicated that, about six months after the killing occurred, defendant talked to the doctor about the events leading up to Teresa's death. Defendant stated that he had been living with his parents and that Teresa had told him that she did not love him anymore. On the day of the murder, defendant agreed to meet Teresa at the couple's home to discuss the terms of their divorce. Defendant knew it would be difficult, so he drank 5 beers and took 12 Vicodin tablets before the meeting. After an hour of discussion, Teresa told defendant that she was going to file for sole custody of the couple's three children and move out of state to be with a man she met online. At that point, defendant and Teresa were in the garage. Defendant became "hysterically blind" and "blacked out." He felt, enraged, lost, and hopeless. When defendant woke up, he had a knife in his hand and blood was everywhere. Defendant noticed that Teresa was not breathing, and he wanted to end his own life. He then stabbed himself and collapsed.

¶ 5 At the conclusion of the hearing, the trial court granted the State's motion in limine . In so doing, the trial court found that the proposed expert witness testimony was irrelevant because there was no proof of any legally recognized form of provocation. The trial court indicated that the form of provocation that was potentially applicable in this case was mutual combat but noted that defendant had made no showing that mutual combat occurred between him and Teresa.

¶ 6 In January 2012, the case proceeded to a stipulated bench trial. The evidence adduced at the stipulated bench trial showed that on the date in question, defendant went to the couple's home and had a conversation with Teresa. The couple's 14-year-old daughter, E.M., was present in the home at the time, as was their 3-year old son. An argument ensued between defendant and Teresa, and defendant was cursing and yelling. Teresa and E.M. told defendant to leave several times, but defendant refused. As E.M. was taking her little brother back to his room, she heard the door to the garage open and heard a thud come from the garage. E.M. ran to the garage and found defendant on top of Teresa. Defendant was grinding a knife back and forth into the front of Teresa's throat area. Teresa was on her back on the garage floor, was covered in blood, and was barely breathing. E.M. jumped on defendant's back and started hitting him with her fists to try to save Teresa. Defendant continued to stab Teresa, stating over and over again that he loved Teresa and the children. Realizing that she could not help Teresa, E.M. went back into the house, grabbed her little brother, and started to run to a neighbor's house for help. As she ran through the garage, she saw defendant use the same knife to cut himself in the neck area. When E.M. got to the neighbor's house, the neighbor called 911. Police officers arrived shortly thereafter and found defendant and Teresa in the garage covered in blood. A police officer checked Teresa's vital signs but could not find a pulse. The officer could see that Teresa had a large laceration to her throat. The officer checked defendant's vital signs. Defendant had a pulse and was breathing. Upon inquiry, defendant told police, fire, and ambulance personnel that he "did it," that he was sorry, and that he did not want or deserve to live. An autopsy showed that Teresa had suffered nine stab wounds to her chest, including one that involved the right ventricle of her heart; two large stab wounds to her neck that transected her upper airway and her right carotid artery; and nine "defensive-type" stab wounds to her right and left hands, wrists, and fingers. The knife that was used in the stabbing was identified as a knife that belonged to defendant that he always carried on his person.

¶ 7 At the conclusion of the stipulated bench trial, the trial court found defendant guilty of first degree murder. The trial court later sentenced defendant to 45 years in prison. As part of the sentencing order, the trial court took a judgment against defendant for court costs and ordered defendant to pay a $200 deoxyribonucleic acid (DNA) testing fee. No other fines, fees, or costs were ordered by the trial court. The circuit clerk, however, subsequently imposed the following financial assessments, among others, against defendant: (1) a $0.25 "Circuit Clerk Oper/Adm Fund" assessment, (2) a $15 "State Police Operation Assistance Fund" assessment, (3) a $10 "State Police Services Fund" assessment, (4) a $7.50 lump sum surcharge, (5) a $3 "Violent Crime Fund" assessment, (6) a $50 "Court Usage" assessment, (7) a $4.75 "Drug Court Fund" assessment, (8) a $10 "Drug Court Operation" assessment, (9) a $10 "Medical Costs Fund" assessment, and (10) a $10 "State's Attorney Juvenile Expenses" assessment.

¶ 8 Defendant filed a direct appeal and challenged the trial court's grant of the State's motion in limine . This court affirmed the trial court's judgment. Moore , 2013 IL App (3d) 120275-U, ¶¶ 1, 19.

¶ 9 In April 2016, defendant filed the instant pro se postconviction petition. In the petition, defendant alleged a claim of actual innocence based on newly discovered evidence. More specifically, defendant asserted that he could now remember what had happened during the incident and remembered that prior to his stabbing Teresa, Teresa had struck him about the head and face and had tried to stab defendant with his own pocket knife. According to defendant, he grabbed Teresa's hand that had the knife in it, pushed Teresa through the doorway into the garage, and fell on top of her. Defendant snapped, grabbed the knife from Teresa, and began stabbing her. Defendant did not come out of that enraged state until he felt his daughter jump on his back. It was then that he attempted to take his own life.

¶ 10 Later that same month, the trial court summarily dismissed defendant's postconviction petition in the first stage of proceedings. Defendant appealed to challenge the trial court's ruling.

¶ 11 ANALYSIS

¶ 12 I. Dismissal of Defendant's Postconviction Petition

¶ 13 On appeal, defendant argues that the trial court erred in summarily dismissing defendant's pro se postconviction petition in the first stage of proceedings. Defendant asserts that his petition was sufficient to state the gist of a constitutional claim of actual innocence of first degree murder based upon newly discovered evidence in the form of defendant's recovered memory regarding the events leading up to his wife's death. More specifically, defendant contends that since trial, he has recovered enough of his memory to assert that he was acting in self-defense when his wife's death occurred or, alternatively, to assert that at the time of his wife's death, he was acting under serious provocation as a result of mutual combat or based upon an unreasonable belief in the need for self-defense. Defendant asserts further that the newly discovered evidence, as set forth in his postconviction affidavit, is material and noncumulative; that it places the evidence presented at trial in a different light; and that it is sufficient to undercut the court's confidence in the factual correctness of the guilty verdict because it creates, at the very least, a second degree murder claim, and at most, a claim for complete exoneration. In making those assertions, defendant maintains that his affidavit is not materially contradicted by other evidence and that his affidavit is the only evidence of the events leading up to his wife's death. Defendant also asserts that under Illinois Supreme Court precedent and contrary to the Fifth District Appellate Court's decision in People v. Wingate , 2015 IL App (5th) 130189, ¶ 24, 391 Ill.Dec. 599, 31 N.E.3d 275, a case upon which defendant expects the State to rely, defendant is not required to establish that he would be entitled to complete exoneration of all crimes to establish a claim of actual innocence. For those reasons, defendant asks that we reverse the trial court's summary dismissal of defendant's postconviction petition and that we remand this case for second-stage proceedings, including the appointment of postconviction counsel for defendant.

¶ 14 The State argues that the trial court properly dismissed defendant's postconviction petition in the first stage of proceedings as being frivolous and patently without merit and that the trial court's ruling, therefore, should be upheld. In support of that argument, the State makes two primary assertions. First, the State asserts that defendant's recovered memory does not constitute newly discovered evidence under the law. As support for that assertion, the State cites one case from Illinois ( People v. Williams , 242 Ill. 197, 204-08, 89 N.E. 1030 (1909) (finding that the defendant's recovery memory that he was at home when the larceny at issue occurred was not newly discovered evidence so as to warrant a new trial but, rather, was evidence of facts that were known to the defendant, were forgotten, and were not diligently presented) ) and a few additional cases from some other states ( United States v. Wapnick , 202 F.Supp. 716, 717-18 (E.D.N.Y. 1962) (concluding that the defendant's revived memory of when he went to a basketball game and met a certain car thief, which was contrary to the testimony of the government's rebuttal witness, was not newly discovered evidence so as to require a new trial); State v. Pittman , 221 S.W.2d 163, 164-65 (Mo. 1949) (holding that the defendant's recovered memory that a certain person had telephoned the defendant's home and had spoken to the defendant at the time of the rape, which could be offered to corroborate the defendant's alibi defense, was not newly discovered evidence so as to warrant a new trial); State v. Jiron , 882 P.2d 685, 688-89 (Utah Ct. App. 1994) (finding that although recovered memory, such as from amnesia, could constitute newly discovered evidence, the defendant's recovered memory in that case of the events leading up to the alleged automobile accident that resulted in murder and arson convictions against the defendant was not newly discovered evidence warranting a new trial because the defendant failed to establish that the evidence could not, with reasonable diligence, have been discovered and produced at trial) ). Second, and in the alternative, the State asserts that even if defendant's recovered memory was considered newly discovered evidence, defendant's petition was still properly dismissed because defendant failed to establish the gist of a constitutional claim since his claim of self-defense was positively rebutted by the record and since his claim of second degree murder does not qualify as a claim of actual innocence under the law. As anticipated by defendant, the State relies upon the Wingate decision in support of the latter contention (see Wingate , 2015 IL App (5th) 130189, ¶ 24, 391 Ill.Dec. 599, 31 N.E.3d 275 ). For all of the reasons set forth, the State asks that we affirm the trial court's summary dismissal of defendant's postconviction petition.

¶ 15 The Post-Conviction Hearing Act (Act) establishes a procedure for an imprisoned criminal defendant to collaterally attack his conviction or sentence based upon a substantial violation of federal or state constitutional rights. 725 ILCS 5/122-1(a)(1) (West 2016); People v. Collins , 202 Ill. 2d 59, 65, 270 Ill.Dec. 1, 782 N.E.2d 195 (2002). In the first stage of proceedings under the Act, the trial court has 90 days to independently review the postconviction petition, taking the allegations as true, and to determine whether the petition is frivolous or patently without merit in that it fails to state the gist of a constitutional claim. 725 ILCS 5/122-2.1(a)(2) (West 2016); People v. Hodges , 234 Ill. 2d 1, 9-10, 332 Ill.Dec. 318, 912 N.E.2d 1204 (2009). If the trial court finds in the first stage of proceedings that the petition is frivolous or patently without merit, it shall summarily dismiss the petition in a written order. See 725 ILCS 5/122B2.1(a)(2) (West 2016); Hodges , 234 Ill. 2d at 10, 332 Ill.Dec. 318, 912 N.E.2d 1204. Such a dismissal is subject to de novo review on appeal ( Hodges , 234 Ill. 2d at 9, 332 Ill.Dec. 318, 912 N.E.2d 1204 ) and may be affirmed on any basis supported by the record (see People v. Little , 335 Ill. App. 3d 1046, 1051, 270 Ill.Dec. 398, 782 N.E.2d 957 (2003) ).

¶ 16 Because the conviction of an innocent person violates the due process clause of the Illinois Constitution, an imprisoned criminal defendant has a right in a postconviction petition to assert a claim of actual innocence based upon newly discovered evidence. People v. Morgan , 212 Ill. 2d 148, 154, 288 Ill.Dec. 166, 817 N.E.2d 524 (2004). From a procedural standpoint, a claim of newly discovered evidence is resolved in the same manner as any other claim brought under the Act. People v. Ortiz , 235 Ill. 2d 319, 333, 336 Ill.Dec. 16, 919 N.E.2d 941 (2009). To prevail on such a claim, a defendant must show that the evidence is "newly discovered," material and not cumulative of other evidence presented at trial, and of such a conclusive character that it would probably change the result upon retrial. Morgan , 212 Ill. 2d at 154, 288 Ill.Dec. 166, 817 N.E.2d 524. For evidence to be considered "newly discovered," it must be evidence that was not available at the defendant's original trial and that the defendant could not have discovered sooner by the exercise of due diligence. Id.

¶ 17 In the present case, to determine whether defendant's recovered memory constitutes newly discovered evidence under Illinois law, we need only look to our supreme court's decision in Williams . In that decision, which was made over 100 years ago, our supreme court rejected a similar argument made by a defendant in a motion for a new trial in a criminal case. See Williams , 242 Ill. at 204-08, 89 N.E. 1030. In so doing, our supreme court stated:

"It would be a dangerous rule to grant a new trial upon an ex parte statement that certain material facts which had previously been known had been forgotten. It may be that in a sense a forgotten fact is practically the same as if it had never been known, but the liability to fraud and the temptation to perjury in such cases forbid that a new trial should be granted because the party against whom a verdict has gone makes oath that he has forgotten material parts of his evidence. In order to prevent, so far as possible, fraud and imposition which defeated parties may be tempted to practice as a last resort to escape the consequence of an adverse verdict, applications for new trial on account of newly discovered evidence should always be subjected to the closest scrutiny by the court. The rules of law which govern in such cases, if carefully observed, will generally accomplish justice. There is, of course, a bare possibility that a rigid adherence to these rules may in exceptional cases work an injustice; but this is unavoidable. Neither the law nor the means of enforcing it are infallible, nor are the methods appointed by the law for the discovery of truth and the detection of error immune from mistakes; but it is far better that a single person should suffer mischief than that the rules be so relaxed that every litigant will have it within his power, by keeping back part of his evidence and then swearing that it was forgotten, to destroy a verdict and obtain a new trial at his pleasure." Id. at 207-08, 89 N.E. 1030.

¶ 18 The rationale stated in Williams is equally applicable under the facts of the present case and, indeed, is the same position that has been adopted by a majority of other jurisdictions, albeit in the context of motions for new trial. See A. Petry, Annot., Facts or Evidence Forgotten at Trial as Newly Discovered Evidence Which Will Warrant Grant of New Trial in Criminal Case , 92 A.L.R.2d 992 (1963) ("[i]t is a well-settled rule of law, established both by judicial decision and by statute, that forgotten facts do not ordinarily constitute such newly discovered evidence as will justify a new trial, and that the want of recollection of a fact which by due diligence and attention might have been remembered, is not ground for a new trial in a criminal case"). We believe that the same rule would also apply to claims of recovered memory in a postconviction proceeding, such as in the instant case. We find, therefore, that defendant's recovered memory of the events leading up to his wife's death did not constitute newly discovered evidence under the law. See Williams , 242 Ill. at 204-08, 89 N.E. 1030.

¶ 19 We note, however, that even if we were to find that defendant's recovered memory constituted newly discovered evidence, we would still have to conclude that defendant's postconviction petition failed to state the gist of a constitution claim and was properly dismissed for two reasons. First, as to defendant's claim of self-defense, the record in this case clearly rebutted that claim. Defendant's own affidavit established that he was not acting in self-defense at the time of Teresa's death since defendant averred that Teresa was on the ground, that he was on top of her, that he had taken the knife away from her, that he had the knife in his hand, and that he went into a rage and started stabbing her. Even in a light most favorable to defendant, we cannot find that those statements would establish the gist of a claim of self-defense. See People v. Belpedio , 212 Ill. App. 3d 155, 160-61, 155 Ill.Dec. 761, 569 N.E.2d 1372 (1991) (recognizing that the use of self-defense must, among other things, be reasonable and necessary and not for the purpose of retaliation). In addition, the evidence presented at the stipulated bench trial clearly negated any possible claim of self-defense as Teresa had been stabbed nine times in the chest, two times in the neck, and had nine stab wounds of a defensive nature to her hands. See id. at 161, 155 Ill.Dec. 761, 569 N.E.2d 1372 (indicating that if a person responds to a confrontation with such excessive force that he is no longer acting in self-defense but in retaliation, the excessive use of force makes that person the aggressor).

¶ 20 Second, we agree with the appellate court in Wingate that a defendant's claim of second degree murder does not constitute a claim of actual innocence under Illinois law. See Wingate , 2015 IL App (5th) 130189, ¶ 24, 391 Ill.Dec. 599, 31 N.E.3d 275. Rather, to constitute a claim of actual innocence, a defendant's claim has to be able to completely exonerate defendant of the offense in question and all related offenses. See id. Thus, defendant's claim of second degree murder in the instant case does not establish the gist of a constitutional claim. See id.

¶ 21 In reaching that conclusion, we note that contrary to defendant's assertion on appeal, the decision in Wingate does not run afoul of the decisions of our supreme court on cases of actual innocence. See, e.g. , People v. Washington , 171 Ill. 2d 475, 489, 216 Ill.Dec. 773, 665 N.E.2d 1330 (1996) (stating that for a defendant to be entitled to relief on a postconviction claim of actual innocence based on newly discovered evidence, the supporting evidence must be new, material, noncumulative, and of such a conclusive character as would probably change the result on retrial); Morgan , 212 Ill. 2d at 154, 288 Ill.Dec. 166, 817 N.E.2d 524 (same); People v. Coleman , 2013 IL 113307, ¶ 96, 374 Ill.Dec. 922, 996 N.E.2d 617 (reaffirming the standard set forth in Washington for postconviction claims of actual innocence based on newly discovered evidence). Rather, the appellate court in Wingate applied a more specific rule under the particular facts of that case-where a defendant was raising in a postconviction petition a claim that newly discovered evidence could reduce his first degree murder conviction to second degree murder. See Wingate , 2015 IL App (5th) 130189, ¶ 24, 391 Ill.Dec. 599, 31 N.E.3d 275. That is the exact same claim that defendant raised in the instant case. We find, therefore, that the Wingate decision is applicable here and that defendant's claim did not constitute a claim of actual innocence. See id.

¶ 22 II. Imposition of Certain Fines Upon Defendant

¶ 23 As his second point of contention on appeal, defendant argues, and the State agrees, that certain fines imposed upon defendant in the trial court must be vacated because the fines were imposed by the circuit clerk and were not ordered by the trial court. See People v. Strong , 2016 IL App (3d) 140418, ¶ 8, 403 Ill.Dec. 409, 53 N.E.3d 1046 (the imposition of a fine is a judicial act; the circuit clerk has no authority to impose fines not ordered by the trial court); People v. Johnson , 2015 IL App (3d) 140364, ¶¶ 9-12, 399 Ill.Dec. 618, 46 N.E.3d 937 (recognizing that certain assessments imposed on the defendant were fines that could not be imposed by the circuit clerk); People v. Burnett , 2016 IL App (3d) 140837, ¶ 8, 412 Ill.Dec. 542, 75 N.E.3d 1055 (same). However, pursuant to our supreme court's recent ruling in People v. Vara , we have no jurisdiction to rule upon this issue and must dismiss that portion of defendant's appeal. See People v. Vara , 2018 IL 121823, ¶¶ 23, 30, 425 Ill.Dec. 498, 115 N.E.3d 53 (finding that the appellate court had no jurisdiction to review fines that were imposed upon the defendant by the circuit clerk, and not by the trial court, because the entry of the fines by the clerk was a ministerial function and not a judgment-void or otherwise). Any questions as to the accuracy of the financial assessments imposed upon defendant as recorded in the circuit clerk's records must be resolved through the cooperation of the parties and the circuit clerk or by the circuit court in a mandamus proceeding. See id. ¶ 31.

¶ 24 CONCLUSION

¶ 25 For the foregoing reasons, we affirm the trial court's summary dismissal of defendant's pro se postconviction petition in the first stage of proceedings and dismiss the remainder of defendant's appeal for lack of appellate jurisdiction.

¶ 26 Affirmed in part and dismissed in part.

Justices McDade and O'Brien concurred in the judgment and opinion.