ILLINOIS OFFICIAL REPORTS

Appellate Court

People v. Peters, 2011 IL App (1st) 092839

Appellate Court

Caption

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.

JERRY PETERS, Defendant-Appellant.

 District & No. First District, First Division

Docket No. 1-09-2839

Filed August 22, 2011

Held

(Note: This syllabus

constitutes no part of

the opinion of the court

but has been prepared

by the Reporter of

Decisions for the

convenience of the

reader.)

Defendant’s convictions for predatory criminal sexual assault and

criminal sexual assault and his sentence to natural life were upheld over

his contentions that the trial court violated Supreme Court Rule 431(b)

and that his sentence violated the proportionate penalties clause, but the

mittimus was corrected to accurately reflect his convictions.

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 08-CR-16590; the

Hon. James B. Linn, Judge, presiding.

Judgment Affirmed; mittimus corrected.
Counsel on

Appeal

Stephen L Gentry, of State Appellate Defender’s Office, of Chicago, for

appellant.

Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, Jon

Walters, and Anne L. Magats, Assistant State’s Attorneys, of counsel),

for the People.

Panel JUSTICE ROCHFORD delivered the judgment of the court, with

opinion.

Presiding Justice Hall and Justice Hoffman concurred in the judgment

and opinion.

OPINION

¶ 1 Defendant, Jerry Peters, appeals his convictions of predatory criminal sexual assault of

a child and criminal sexual assault and his sentence of natural life imprisonment. Defendant

contends: (1) the circuit court violated Illinois Supreme Court Rule 431(b) (eff. May1, 2007)

by failing to ask the potential jurors during voir dire whether they understood and accepted

the principles set forth in People v. Zehr, 103 Ill. 2d 472 (1984); (2) his mandatory natural

life sentence violated the proportionate penalties clause; and (3) his mittimus should be

corrected to accurately reflect the counts of which he was convicted. We affirm defendant’s

convictions and sentence and correct the mittimus.

¶ 2 Defendant was charged with three counts of predatory criminal sexual assault of a child

and three counts of criminal sexual assault. The predatory criminal sexual assault charges

alleged that, on or about March 1, 2001, through August 5, 2003, defendant, who was 17

years of age or over, knowingly committed an act of sexual penetration upon J.J., who was

under 13 years of age, by making contact between: his penis and J.J.’s vagina (count I); his

penis and J.J.’s anus (count II); and his mouth and J.J.’s vagina (count III). The criminal

sexual assault charges alleged that, on or about August 6, 2003, through March 25, 2004,

defendant knowingly committed an act of sexual penetration upon his stepdaughter J.J., who

was under 18 years of age, when he made contact between: his penis and J.J.’s vagina (count

IV); his penis and J.J.’s anus (count V); and his mouth and J.J.’s vagina (count VI).

¶ 3 During jury selection, the court advised the venire of “certain fundamental principles”

that “apply to this trial like they’ve applied to every other trial in the history of our country.”

First, the court advised the venire that “a criminal trial begins with the person accused of a

crime presumed to be innocent.” The court further explained:

“This is how a criminal trial starts. Whoever walks in accused of a crime walks in the

court presumed to be innocent. We don’t take the position, well, if he’s accused, he

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must have done something wrong or else they wouldn’t be held for trial. They don’t

take the position, somebody did something wrong or else there wouldn’t be a trial.

An accused begins proceedings in court presumed to be innocent. Is there anybody

here who has a problem with that most fundamental proposition of American justice,

that when a criminal trial starts, the accused is presumed to be innocent? If you have

a problem with that, please raise your hand. No hands are raised.”

¶ 4 The court then explained that a person becomes accused of a crime when the government

brings formal charges against him by filing a piece of paper listing those charges. The court

stated that the fact the paper was filed does not necessarily mean defendant did something

wrong. Then the court asked, “[I]s there anybody here who would hold it against the accused

simply because someone in the government filed a piece of paper in court indicating what

the formal charges are? If you have feelings like that, please raise your hand. No hands are

raised.”

¶ 5 The court further explained:

“The only way someone can be guilty of a crime is if the government who brought

the charges against the accused is able to prove the accused guilty beyond a

reasonable doubt. *** The government has the burden of proof. They have to prove

the case beyond a reasonable doubt. You don’t guess somebody guilty. You don’t

make a hunch they’re guilty. You don’t think they’re guilty. The only way you can

be guilty is if the government brought the charge and proved guilt beyond a

reasonable doubt. Anybody have a problem with that proposition? The only way you

can be guilty is if the government [that] brought the case can prove guilt beyond a

reasonable doubt. Do you have a problem with that, please raise your hand? No hands

are raised.”

¶ 6 Finally, the court discussed one “last proposition”:

“In a criminal trial, the person accused of a crime does not have to prove their

innocence. In a criminal trial, the burden of proof is on the government, they have to

prove guilt beyond a reasonable doubt. An accused doesn’t have to prove anything

at all. An accused does not have to testify. It is their perfect right not to testify. They

don’t have to call any witnesses on their own behalf. It is their perfect right not to call

witnesses on their own behalf. Hypothetically speaking, there can be a criminal trial.

The government may call a hundred witnesses against the accused. The accused,

which is their perfect right, chooses not to testify, and which is also their right,

chooses not to call any witnesses on their own behalf. After hearing from a hundred

people on one side, no people on the other, there can be a reasonable doubt the jury

find [sic] as to whether the government has indeed proven their case as required.

With that said, is there anybody here who would hold it against the accused if they

did not testify, which is their perfect right, or did not call any witnesses on their own

behalf, which is their right? Anybody here who feels the accused has some

responsibility in a criminal case to prove their innocence? If you have feelings like

that, please raise your hands. No hands are raised. Okay.”

¶ 7 The court also individually asked each venireperson who was selected for the jury if he

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or she would hold it against defendant if he did not testify. Each person selected replied that

he or she would not.

¶ 8 At trial, J.J. testified she was 10 years old in 2001 and lived with her mother, uncle, and

brother. Her mother was dating defendant at that time, and he also had been living in their

home for two or three years. In March 2001, J.J. came home from school at approximately

3:20 p.m. Defendant was home, and he asked J.J. to come into the bedroom he shared with

her mother. Defendant asked J.J. to sit on the bed and take off her clothes. J.J. did so.

Defendant took off his clothes and told J.J. to lie down. Defendant climbed on top of J.J.,

applied baby oil to her vaginal area, and inserted his penis into her vagina. After he was

finished, defendant told J.J. not to tell anyone or else she would “go to DCFS” and neversee

her mother again. Defendant also threatened to hurt her mother if J.J. told anyone what he

had done. One week later, defendant again asked J.J. to come into his room, where he

inserted his penis into her vagina. This continued to happen two to three times a week for

three years. J.J. testified she saw “cum” come out of defendant’s penis on the occasions when

he inserted it into her vagina. J.J. testified defendant also would place his mouth on her

vagina and move his tongue back and forth. Defendant also tried to put his penis inside her

mouth, but he was unable to do so because she kept moving and he eventually grew tired of

fighting her.

¶ 9 J.J. testified defendant married her mother in September 2001. Prior to the marriage, J.J.

never told her mother about what defendant was doing because she was too afraid. J.J. wrote

about the incidents in a diary and left it out in the hope that her brother would read it and

come to her aid. Instead, defendant discovered the diary and ripped it up. Then he called her

into his room, told her not to write about what he had been doing to her, and told her to lie

down and take off all her clothes. He inserted his penis into her vagina, then he told her to

turn over and he inserted his penis into her anus. J.J. subsequently told her best friend,

Adrienne, about what defendant had been doing to her.

¶ 10 J.J. testified that, on March 25, 2004, she came home from school and defendant asked

her to come into his room “like every other day.” Defendant told her to lie down and take off

all her clothes, after which he inserted his penis into her vagina. Defendant later left and

picked up her mother from work in order to go bowling. After defendant left, J.J.’s brother,

K.J., called her and she told him that defendant had been “messing” with her. K.J. drove over

and picked her up and then drove to the bowling alley, where they saw defendant and their

mother. K.J. began screaming and cursing at defendant. Defendant said nothing in response.

J.J. left the bowling alley with her mother and K.J. and went to the hospital where she

underwent a physical examination. She also spoke with police while at the hospital.

¶ 11 K.J. testified that, on March 25, 2004, he was working at a barbershop when he received

a phone call from a female who stated her name was “Tweet.” K.J. did not know this person.

They had a brief conversation about J.J. After hanging up the phone and finishing work, K.J.

called J.J. and asked her if defendant had been “messing with her.” J.J. said yes and began

crying. K.J. drove over and picked up J.J. and his eight-year-old son, whom J.J. was

babysitting. K.J. drove around until he met up with his friend, Lamont Jones. K.J. left J.J.

and his son in the car while he got out to speak with Lamont. Lamont gave K.J. a handgun.

K.J. placed the gun in the waist of his pants and he put the clip in his pocket. Then he

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dropped his son off at his mother’s house and drove over to the bowling alley. K.J. told J.J.

to go inside the bowling alley; as she did so, he finished parking, took the clip out of his

pocket, and put it inside the gun. Then he walked into the bowling alley, where he saw

defendant and his mother. K.J. cursed at defendant and yelled out that he had “f***ed” his

sister. Defendant made no response but continued bowling. His mother came over, and K.J.

told her that defendant had been “f***ing” J.J. Then K.J. pulled the gun out of his pocket and

pointed it at defendant’s groin. The owner of the bowling alley stepped between K.J. and

defendant, grabbed the gun, and told K.J. “It ain’t worth it.” A couple of men dragged K.J.

outside the bowling alley. His mother and J.J. joined him outside. K.J. testified they drove

to their mother’s house and then to the hospital.

¶ 12 J.J.’s mother, Anita P., testified she began dating defendant in 1996 and that he moved

in with her one year later. Anita’s daughter, J.J., and her youngest son, T.J., as well as their

uncle Clarence, also lived with them. Anita married defendant in September 2001. Anita

worked at a messenger service in 2001 and began working at a bank in 2002. She usually

arrived home at 6 p.m. While she was at work, defendant was responsible for picking J.J. up

from school.

¶ 13 Anita testified that, on March 25, 2004, she and defendant went bowling after work.

While theywere at the bowling alley, J.J. and K.J. came in and K.J. began cursing and saying

that defendant had been “f***ing” J.J. for three years. While K.J. was saying this, J.J. was

crying. Defendant made no response but continued bowling. Anita walked over to K.J. to

“see what was going on.” Defendant subsequently called Anita into the locker room and told

her not to “bring DCFS into [their] life right now.” Anita asked defendant about what was

going on, but he said that he could not talk about it right now. Anita left the bowling alley

and went home with K.J. and J.J. Then they took J.J. to the hospital. Anita never saw

defendant after that night.

¶ 14 Nanette Kelly testified she is a registered nurse and she examined J.J. on March 25, 2004,

at the hospital. J.J. had stated that she had been sexually assaulted. J.J.’s underwear was

collected, and Doctor Carrie Wilson took a vaginal swab, pubic comb, and blood sample

from J.J. using a sexual assault kit. Nurse Kelly testified that J.J.’s hymen was broken.

Officer Zdziarski picked up the sexual assault kit.

¶ 15 Doctor Robin Cotton was qualified as an expert in the field of DNA analysis and testified

that, from 1988 to 2006, she worked for Cellmark Diagnostics, later called Orchid Cellmark,

which was a DNA testing lab. Her primary duties were to review the work of other analysts

at the lab. Doctor Cotton testified that, on April 29, 2004, Orchid Cellmark received a blood

specimen and four vaginal swabs taken from J.J. DNA profiles were generated from the

blood sample and from semen on the vaginal swabs.

¶ 16 Detective Mike Dimeo testified that, on August 12, 2008, defendant “came into contact”

with Chicago police officers “concerning a traffic matter” and was placed into custody based

on a prior investigative alert that had been issued for defendant based on his alleged

involvement in J.J.’ssexual assault. Michael Scarriot, an evidence technician for the Chicago

police department, testified that, on August 13, 2008, he took a buccal swab from

defendant’s inner mouth. The swab was subsequently sealed and inventoried.

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¶ 17 Janice Martino, a forensic scientist with the Illinois State Police, was qualified as an

expert in the field of forensic DNA analysis and testified that she received defendant’s buccal

swab, from which she generated a DNA profile. She compared this DNA profile with the

DNA profile generated by Orchid Cellmark from the vaginal swabs taken from J.J. Ms.

Martino concluded that the DNA profile from defendant’s buccal swab matched the DNA

profile from J.J.’s vaginal swabs. Ms. Martino testified that the DNA profile from J.J.’s

vaginal swabs would be expected to match only 1 in 100 quadrillion black individuals, 1 in

3.4 quintillion white individuals, or 1 in 12 quintillion Hispanic individuals.

¶ 18 Detective Dimeo testified that he met with defendant on August 13, 2008, in a police

department interview room. Detective Dimeo gave defendant his Miranda rights and

defendant stated he understood them. Defendant told Detective Dimeo that he had a “special

relationship” with J.J., in which he had penetrated her vagina with his penis numerous times,

had touched his mouth to her vagina numerous times, and had fondled her breasts on

multiple occasions. Defendant also stated that he had placed his penis in J.J.’s hands on two

occasions and that, on one occasion, he had placed his penis to her anus.

¶ 19 Detective Dimeo testified that, at the conclusion of their conversation, he contacted

Assistant State’s Attorney (ASA) Gerardo Tristan, who arrived at approximately 8:45 p.m.

At approximately 9 p.m., Detective Dimeo and ASA Tristan went into the room with

defendant. ASA Tristan gave defendant his Miranda rights again, and defendant stated he

understood them. Defendant gave essentially the same statement to ASA Tristan that he had

given to Detective Dimeo. Defendant then agreed to give a written memorialization of his

statement.

¶ 20 ASA Tristan testified that, at approximately 9 p.m. on August 13, 2008, he met with

defendant in an interview room at the police station. Detective Dimeo was also present. ASA

Tristan introduced himself as a prosecutor and gave defendant his Miranda rights, and

defendant stated he understood. They engaged in a conversation lasting about 20 minutes,

during which defendant admitted he had been having sex with his stepdaughter. Defendant

agreed to have his statement memorialized in writing. ASA Tristan wrote out the statement,

which was then signed by him, Detective Dimeo, and defendant.

¶ 21 ASA Tristan read defendant’s statement to the jury. Defendant stated he first met J.J.

when he began dating her mother, Anita. Defendant married Anita in September 2001. Prior

to that date, around March 2001, J.J. grabbed and stroked his penis as defendant read her a

bedtime story. Two or three days later, J.J. again grabbed and stroked his penis. About one

week later, defendant engaged in sexual intercourse with J.J. He placed his penis inside her

vagina and moved it back and forth, and then he ejaculated on the bed. Defendant stated that

they continued to engage in sexual intercourse from March 2001 to March 25, 2004. The

sexual intercourse took place either in his room or in J.J.’s room.

¶ 22 Defendant stated that he remembered one time when he placed his penis in between J.J.’s

“rear cheeks.” Defendant stated he sometimes placed his tongue on J.J.’s vagina and

penetrated her vagina with his tongue. He rubbed her vagina with his fingers and with baby

oil. He also rubbed J.J.’s breasts over her shirt and under her shirt. He last had sexual

intercourse with J.J. on March 25, 2004. That night, J.J. and her brother came into the

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bowling alley and confronted defendant about his sexual intercourse with J.J.

¶ 23 Also at trial, two sisters, M.C. and Y.D., testified they too were sex crime victims of

defendant. M.C. testified that, in 1988, when she was 14 years old, her mother was dating

defendant. In November or December 1988, M.C. came home from school and defendant

was there. He made her sister Y.D. go into the bathroom, and then he came out with an

extension cord around his neck. He told M.C. to take off all her clothes except for her

underwear and lie down on the bed. M.C. did as she was told. Defendant hit her several times

with the extension cord. Then he asked her whethershe was ready to be a child or a woman.

M.C. said she was ready to be a woman. Defendant then made M.C. take off her underwear

and lie back down on the bed. Defendant took off his robe, got on top of M.C., and put his

penis in her vagina. Defendant continued to have sexual intercourse with M.C. weekly for

approximately two years. M.C. testified that defendant also put his penis in her mouth.

Defendant told M.C. not to tell anyone because her mother would not believe her and nobody

else would ever love her again. M.C. eventually told her mother and the police about what

defendant had been doing to her.

¶ 24 M.C.’s sister, Y.D., testified that, when she was six years old, her mother began dating

defendant. In 1988, when Y.D. was eight years old, defendant took her to McDonald’s and

then they went back to his apartment, where he asked her to take off her clothes and lie on

the bed. She did as she was told. Defendant then took off his clothes, got on top of her, and

put his penis in her vagina. Defendant continued to have sexual intercourse with Y.D. weekly

for approximately two years. Y. D. testified that defendant also put his penis in her mouth.

Defendant told her never to tell anyone and bribed her with candy and chips. In 1990, Y.D.

told her mother and eventually spoke with the police.

¶ 25 At the close of all the evidence, the circuit court instructed the jury, in pertinent part, that

defendant is presumed innocent of the charges against him, that the State has the burden of

proving defendant guilty beyond a reasonable doubt, that defendant is not required to prove

his innocence, and that the fact defendant did not testify must not be considered in any way

in arriving at the verdict.

¶ 26 The jury convicted defendant of two counts of predatorycriminal sexual assault of a child

and three counts of criminal sexual assault. The circuit court denied defendant’s motion for

a new trial. During sentencing, the State introduced a certified copy of conviction stating that

defendant had been convicted of aggravated criminal sexual assault on September 26, 1991,

for which he was sentenced to seven years’ imprisonment. The circuit court sentenced

defendant to natural life in prison pursuant to section 12-14.1(b)(2) of the Criminal Code of

1961, which states in pertinent part:

“A person who is convicted of *** the offense of predatory criminal sexual assault

of a child after having previously been convicted of the offense of *** aggravated

criminal sexual assault *** shall be sentenced to a term of natural life

imprisonment.” 720 ILCS 5/12-14.1(b)(2) (West 2008).

¶ 27 Defendant filed a motion to reconsider his sentence, which the circuit court denied. The

court stated it “would have found a sentence other than natural life had it been available.”

Defendant filed this timely appeal.

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¶ 28 First, defendant contends the circuit court violated Rule 431(b) when it failed to ask the

potential jurors during voir dire whethertheyunderstood and accepted the principles set forth

in Zehr. Where an issue concerns compliance with a supreme court rule, review is de novo.

People v. Ware, 407 Ill. App. 3d 315, 353 (2011).

¶ 29 In Zehr, our supreme court held that a trial court erred during voir dire by refusing

defense counsel’s request to ask questions about the State’s burden of proof, the defendant’s

right not to testify and his right not to have to offer evidence in his own behalf, and the

presumption of innocence. Zehr, 103 Ill. 2d at 476-78. The supreme court held, “essential

to the qualification of jurors in a criminal case is that they know that a defendant is presumed

innocent, that he is not required to offer any evidence in his own behalf, that he must be

proved guilty beyond a reasonable doubt, and that his failure to testify in his own behalf

cannot be held against him.” Zehr, 103 Ill. 2d at 477.

¶ 30 To ensure compliance with Zehr, the supreme court amended Rule 431(b) in 1997 to

provide, “[i]f requested by the defendant,” the court shall ask the prospective jurors whether

they understand and accept the Zehr principles. Ill. S. Ct. R. 431(b) (eff. May 1, 1997). The

rule sought “to end the practice where the judge makes a broad statement of the applicable

law followed by a general question concerning the juror’s willingness to follow the law.” Ill.

S. Ct. R. 431, Committee Comments (eff. May 1, 1997). The appellate court held that Rule

431(b), as amended in 1997, “does not require the judge to ask the questions unless

defendant’s counsel has asked the court to do so.” People v. Williams, 368 Ill. App. 3d 616,

623 (2006); see also People v. Foreman, 361 Ill. App. 3d 136 (2005).

¶ 31 Effective May 1, 2007, the supreme court again amended Rule 431(b), deleting the

language “[i]f requested by the defendant,” and leaving the remainder of the rule unchanged.

Rule 431(b) now reads:

“(b) The court shall ask each potential juror, individually or in a group, whether

that juror understands and accepts the following principles: (1) that the defendant is

presumed innocent of the charge(s) against him or her; (2) that before a defendant can

be convicted the State must prove the defendant guilty beyond a reasonable doubt;

(3) that the defendant is not required to offer any evidence on his or her own behalf;

and (4) that the defendant’s failure to testify cannot be held against him or her;

however, no inquiry of a prospective juror shall be made into the defendant’s failure

to testify when the defendant objects.

The court’s method of inquiry shall provide each juror an opportunity to respond

to specific questions concerning the principles set out in this section.” Ill. S. Ct. R.

431(b) (eff. May 1, 2007).

¶ 32 Thus, Rule 431(b), as amended effective May 1, 2007, currently imposes a sua sponte

duty on the circuit court to question each potential juror as to whether he understands and

accepts the Zehr principles. Such questioning of the potential jurors is no longer dependent

upon a request by defense counsel.

¶ 33 Defendant’s trial took place after the effective date of the 2007 amendments. Therefore,

the 2007 amended version of Rule 431(b) is controlling.

¶ 34 Defendant contends the circuit court violated Rule 431(b) by “combin[ing] the four

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[Zehr] principles into two” and byfailing to ascertain whetherthe potential jurors understood

and accepted the principles. Defendant concedes he did not object to the circuit court’s

alleged failure to comply with Rule 431(b), but argues “forfeiture is inapplicable” because:

(1) the effect of the 2007 amendment, which required the circuit court to ask the four

questions sua sponte, would be negated if defendant was required to object thereto; and (2)

the waiver rule is relaxed when the trial judge’s conduct is at issue. See People v. Dameron,

196 Ill. 2d 156, 171 (2001). Defendant also contends the court’s alleged failure to comply

with Rule 431(b) cannot be held harmless. In the alternative, defendant contends we should

review the court’s alleged failure to comply with Rule 431(b) for plain error.

¶ 35 Our supreme court recentlyaddressed these issues in People v. Thompson, 238 Ill. 2d 598

(2010). In Thompson, the defendant, Angelo Thompson, was convicted of aggravated

unlawful use of a weapon and sentenced to one year in prison. Thompson, 238 Ill. 2d at 601.

On appeal, Thompson argued his conviction should be reversed because the trial court failed

to complywith Rule 431(b). Thompson, 238 Ill. 2d at 605. Specifically, the trial court did not

question whether any of the prospective jurors understood and accepted that Thompson was

not required to produce any evidence on his own behalf. Thompson, 238 Ill. 2d at 607.

Further, the trial court did not ask the prospective jurors whether they accepted the

presumption of innocence. Thompson, 238 Ill. 2d at 607. Thompson did not object to the

alleged Rule 431(b) violation or include it in his posttrial motion, but the appellate court

found the alleged error was subject to plain-error review. Thompson, 238 Ill. 2d at 605. The

appellate court held that the trial court committed reversible error by failing to comply with

Rule 431(b) and so reversed Thompson’s conviction and remanded for a new trial.

Thompson, 238 Ill. 2d at 605.

¶ 36 On appeal to the supreme court, the State first contended that a violation of Rule 431(b)

is not a structural error requiring automatic reversal. Thompson, 238 Ill. 2d at 605. The

supreme court agreed. The supreme court noted that structural errors systemically erode the

integrity of the judicial process, undermining the fairness of the defendant’s trial. Thompson,

238 Ill. 2d at 608. “An error is typically designated as structural only if it necessarily renders

a criminal trial fundamentally unfair or an unreliable means of determining guilt or

innocence.” Thompson, 238 Ill. 2d at 609. Errors have been recognized as structural only in

a limited class of cases, including: a complete denial of counsel; trial before a biased judge;

racial discrimination in the selection of a grand jury; denial of self-representation at trial;

denial of a public trial; and a defective reasonable doubt instruction. Thompson, 238 Ill. 2d

at 609.

¶ 37 The supreme court concluded:

“Rule 431(b) questioning is simply one way of helping to ensure a fair and impartial

jury. [Citation.] Despite the trial court’s failure to comply with Rule 431(b) in this

case, there is no evidence that defendant was tried by a biased jury. We also note that

the trial court did address some of the Rule 431(b) requirements in its voir dire and

*** the jury was admonished and instructed on Rule 431(b) principles.

Although compliancewith Rule 431(b) is important, violation ofthe rule does not

necessarily render a trial fundamentally unfair or unreliable in determining guilt or

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innocence. We conclude that the trial court’s violation of the amended version of

Supreme Court Rule 431(b) in this case does not fall within the very limited category

of structural errors and, thus, does not require automatic reversal of defendant’s

conviction.” Thompson, 238 Ill. 2d at 610-11.

¶ 38 The supreme court next discussed the State’s contention that Thompson had forfeited his

claim by failing to object to the trial court’s failure to comply with Rule 431(b) or include

the issue in his posttrial motion. Thompson, 238 Ill. 2d at 611-12. Thompson conceded his

claim was forfeited, but asked the court to relax the forfeiture rule based on the so-called

“Sprinkle doctrine.” Thompson, 238 Ill. 2d at 611-12. Under the Sprinkle doctrine, the court

may relax the forfeiture rule when a trial judge oversteps his authority in the jury’s presence

or when trial counsel effectively has been prevented from objecting because such an

objection would fall on deaf ears. Thompson, 238 Ill. 2d at 612. The supreme court noted

there was no indication in the case before it that the trial court would have ignored trial

counsel’s objection to the Rule 431(b) questioning, nor was there any indication that the trial

court overstepped its authority in the presence of the jury. Thompson, 238 Ill. 2d at 612.

Accordingly, the supreme court declined to relax the forfeiture rule. Thompson, 238 Ill. 2d

at 612.

¶ 39 The supreme court next discussed whether the trial court’s failure to comply with Rule

431(b) constituted plain error. Thompson, 238 Ill. 2d at 613. The plain-error doctrine is

applied when:

“ ‘(1) a clear or obvious error occurred and the evidence is so closely balanced

that the error alone threatened to tip the scales of justice against the defendant,

regardless of the seriousness of the error, or (2) a clear or obvious error occurred and

that 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.’ ” Thompson, 238 Ill. 2d at 613 (quoting People v. Piatkowski, 225 Ill. 2d

551, 565 (2007)).

¶ 40 Thompson did not argue plain error under the first prong, but only argued under the

second prong that the Rule 431(b) violation infringed his right to an impartial jury and

thereby affected the fairness of his trial and the integrity of the judicial process. Thompson,

238 Ill. 2d at 613. The supreme court disagreed, noting it had equated the second prong of

plain-error review with structural error. Thompson, 238 Ill. 2d at 613-14 (citing People v.

Glasper, 234 Ill. 2d 173, 197-98 (2009)). The supreme court held:

“A finding that defendant was tried by a biased jury would certainly satisfy the

second prong of plain-error review because it would affect his right to a fair trial and

challenge the integrity of the judicial process. Critically, however, defendant has not

presented any evidence that the jury was biased in this case. Defendant has the

burden of persuasion on this issue. We cannot presume the jury was biased simply

because the trial court erred in conducting the Rule 431(b) questioning.

***

Our amendment to Rule 431(b) does not indicate that compliance with the rule

is now indispensable to a fair trial. As we have explained, the failure to conduct Rule

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431(b) questioning does not necessarily result in a biased jury, regardless of whether

that questioning is mandatoryor permissive under our rule. Although the amendment

to the rule serves to promote the selection of an impartial jury bymaking questioning

mandatory, Rule 431(b) questioning is only one method of helping to ensure the

selection of an impartial jury. [Citation.] It is not the only means of achieving that

objective. A violation of Rule 431(b) does not implicate a fundamental right or

constitutional protection, but only involves a violation of this court’s rules.

[Citation.] Despite our amendment to the rule, we cannot conclude that Rule 431(b)

questioning is indispensable to the selection of an impartial jury.” Thompson, 238 Ill.

2d at 614-15.

¶ 41 The supreme court noted , in the case before it, the prospective jurors had received some,

but not all, of the required Rule 431(b) questioning and had been admonished and instructed

on Rule 431(b) principles. Thompson, 238 Ill. 2d at 615. The supreme court concluded

Thompson had not established that the trial court’s violation of Rule 431(b) resulted in a

biased jury and therefore he failed to meet his burden of showing the error affected the

fairness of his trial and the integrity of the judicial process. Thompson, 238 Ill. 2d at 615.

¶ 42 Finally, the supreme court declined Thompson’s request to adopt a bright-line rule of

reversal for any violation of Rule 431(b) to ensure that the trial courts will comply with the

rule. Thompson, 238 Ill. 2d at 615-16.

¶ 43 In the present case, as in Thompson, defendant’s failure to object at trial constituted a

forfeiture of the circuit court’s alleged error in its Rule 431(b) questioning. As in Thompson,

defendant has failed to establish that the forfeiture rule should be relaxed under the Sprinkle

doctrine, as there is no indication the trial court would have ignored an objection nor is there

any evidence the trial court overstepped its authority in the presence of the jury. Further,

defendant has failed to establish plain error. The casewas not closelybalanced, so the alleged

error is not reversible under the first prong. See our recitation of the evidence supra. Nor is

the alleged error reversible under the second prong. Defendant has presented no evidence the

jury was biased in this case. Defendant bears the burden of persuasion on this issue, and we

“cannot presume the jury was biased.” Thompson, 238 Ill. 2d at 614. In the absence of any

evidence of jury bias, defendant has failed to meet his burden of showing that the alleged

Rule 431(b) violation constitutes plain error.

¶ 44 Next, defendant contends his mandatorynatural life sentence imposed pursuant to section

12-14.1(b)(2) of the Criminal Code of 1961 violates the proportionate penalties clause.

Section 12-14.1(b)(2) mandated the natural life sentence because defendant was convicted

of predatory criminal sexual assault of a child after having previously been convicted of

aggravated criminal sexual assault. See 720 ILCS 5/12-14.1(b)(2) (West 2008).

¶ 45 A statute carries a strong presumption of constitutionality. People v. Sharpe, 216 Ill. 2d

481, 487 (2005). The party challenging the statute bears the burden of clearly establishing

that it violates the constitution. Sharpe, 216 Ill. 2d at 487. A reviewing court has “a duty to

construe a statute in a manner that upholds its validity and constitutionality if it reasonably

can be done.” People v. Graves, 207 Ill. 2d 478, 482 (2003). Courts “generally defer to the

legislature in the sentencing arena because the legislature is institutionally better equipped

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to gauge the seriousness of various offenses and to fashion sentences accordingly.” Sharpe,

216 Ill. 2d at 487. The constitutionality of a statute is a matter of law subject to de novo

review. Sharpe, 216 Ill. 2d at 486-87.

¶ 46 The proportionate penalties clause of the IllinoisConstitution states, “[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. Our supreme court

has identified two distinct tests to evaluate a proportionality challenge. First, “a penalty

violates the proportionate penalties clause if it is cruel, degrading, or so wholly

disproportionate to the offense committed as to shock the moral sense of the community.”

People v. Moss, 206 Ill. 2d 503, 522 (2003). Second, “the proportionate penalties clause is

violated where offenses with identical elements are given different sentences.” Moss, 206 Ill.

2d at 522. Our supreme court recently abandoned a third method, the “cross-comparison

analysis,” because it had proven to be “problematic and unworkable.” Sharpe, 216 Ill. 2d at

519.

¶ 47 Defendant challenges his sentence under the first test, arguing that his sentence was so

disproportionate to the offense as to shock the moral sense of the community. Defendant

argues that his offense of predatory criminal sexual assault of a child did not cause an

unusually severe degree of harm to J.J. and that he likely would have been sentenced to the

statutoryminimum of six years in prison had he not been previously convicted of aggravated

criminal sexual assault. As a result of his prior aggravated criminal sexual assault conviction,

the circuit court was required under section 12-14.1(b)(2) to sentence him to natural life in

prison. Defendant contends the elevation of his sentence from six years to natural life based

solely on his prior aggravated criminal sexual assault conviction was not proportionate to the

seriousness of the offense and shocks the moral sense of the community. Defendant argues

that the extreme sanction of natural life imprisonment should be restricted to “extremely

serious” cases, such as where violent injury or death resulted, or where defendant has shown

no prospects for rehabilitation. Defendant contends that, since the present case is not

extremelyserious and since he hasrehabilitative potential, we should hold that the mandatory

sentencing provision of section 12-14.1(b)(2) is unconstitutional as applied to him.

¶ 48 Similar arguments were addressed in People v. Sanchez, 344 Ill. App. 3d 74 (2003), and

People v. Huddleston, 212 Ill. 2d 107 (2004). In Sanchez, the defendant there, Juan Sanchez,

Jr., was convicted of aggravated criminal sexual assault of a 13-year-old girl. Sanchez, 344

Ill. App. 3d at 77. He previously had been convicted of criminal sexual assault of a five-yearold child. Sanchez, 344 Ill. App. 3d at 79. The circuit court sentenced him to natural life in

prison (Sanchez, 344 Ill. App. 3d at 77) pursuant to section 12-14(d)(2) of the Criminal Code

of 1961, which provides that, where a person is convicted of aggravated criminal sexual

assault after having been convicted of a separate criminal sexual assault, he “shall be

sentenced to a term of natural life imprisonment.” 720 ILCS 5/12-14(d)(2) (West 2000).

¶ 49 On appeal, Sanchez argued that his mandatory life sentence violated the proportionate

penalties clause because it was so disproportionate to the offense as to shock the moral sense

of the community. Sanchez, 344 Ill. App. 3d at 84. Sanchez contended he was convicted

based on “slight and temporary bodily harm that amounted to simple battery–bruises to the

victim’s breast.” Sanchez, 344 Ill. App. 3d at 84. Sanchez argued that had he not bruised the

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victim’s chest, he would have been convicted of criminal sexual assault and the court would

only have imposed a sentence of between 30 and 60 years in prison. Sanchez, 344 Ill. App.

3d at 84.

¶ 50 In affirming Sanchez’s conviction and his natural life sentence, we noted that section 12-

14(d)(2) is a recidivistsentencing provision that has the purpose of deterring repeat offenders

and “ ‘impos[ing] harsher sentences on offenders whose repeated convictions have shown

their resistance to correction.’ ” Sanchez, 344 Ill. App. 3d at 82 (quoting People v. Robinson,

89 Ill. 2d 469, 476 (1982)). We further stated:

“[T]he harm in this case is not limited to bruising of the victim’s breast. The

evidence at trial showed the victim was in ‘severe pain’ during the hospital exam and

sustained bruises to her vaginal area as well as her breasts, which could have been

caused from being held down. We need not speculate about the psychological harm

done to victims of forcible sexual assaults. The mandatory life sentence provision

reflects the legislature’s decision to treat severely those who engage in repetitive

conduct of sexual assault because it recognizes the harm caused to victims.” Sanchez,

344 Ill. App. 3d at 85.

¶ 51 In Huddleston, the defendant there, Gerald Huddleston, was convicted of three counts of

predatory criminal sexual assault of a child, with each count pertaining to a separate victim.

Huddleston, 212 Ill. 2d at 110. The evidence showed that, in the course of his teaching

duties, Huddleston placed his penis in the mouths of three different fourth-grade students.

Huddleston, 212 Ill. 2d at 112-15. The circuit court declined to impose the mandatory

sentence of natural life imprisonment required by section 12-14.1(b)(1.2) when a person is

“convicted of predatory criminal sexual assault of a child committed against 2 or more

persons regardless of whether the offenses occurred as the result of the same act or of several

related or unrelated acts.” 720 ILCS 5/12- 14.1(b)(1.2) (West 2002). The circuit court found

that section 12-14.1(b)(1.2) violated the proportionate penalties clause as applied to

Huddleston and sentenced him to consecutive 10-year terms of imprisonment. Huddleston,

212 Ill. 2d at 110.

¶ 52 On appeal, the supreme court noted, “[c]oncern for the welfare and safety of children is

reflected in various criminal statutes” (Huddleston, 212 Ill. 2d at 133) and that section 12-

14.1(b)(1.2) “was obviously intended to protect this vulnerable segment of our society from

sexual predation bydeterringwould-be offenders and ensuring that those who commit sexual

acts with multiple victims will not have the opportunity to reoffend” (Huddleston, 212 Ill.

2d at 134). The supreme court detailed the “considerable commentary” regarding the

psychological damage suffered by children who are the victims of sexual assault

(Huddleston, 212 Ill. 2d at 134-36) and noted that state legislatures may respond to the

substantial risk of recidivism posed by sex offenders (Huddleston, 212 Ill. 2d at 138). The

supreme court ultimately held that the sentence of natural life imprisonment, as applied to

Huddleston, was not cruel, degrading, or so wholly disproportionate to his offense as to

shock the moral sense of the community. Huddleston, 212 Ill. 2d at 141.

¶ 53 Similar to section 12-14(d)(2) discussed in Sanchez, and section 12-14.1(b)(1.2)

discussed in Huddleston, section 12-14.1(b)(2) reflects the legislative recognition of the

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inherent harm caused to victims of aggravated criminal sexual assault and predatorycriminal

sexual assault of a child. Contrary to defendant’s argument, predatorycriminal sexual assault

of a child is “extremely serious” regardless of whether violent injury or death resulted. See

Huddleston, 212 Ill. 2d at 134-36 (discussing the chronic psychological problems suffered

by children who are the victims of sexual assault.) The mandatory sentencing provision of

section 12-14.1(b)(2)is intended to protect children from sexual predators bydeterring repeat

offenders and byharshlypunishing offenders who have shown resistance to correction so that

they will not have the opportunity to reoffend.

¶ 54 Turning to the facts of defendant’s case, he argues that his particular predatory criminal

sexual assault did not cause an unusuallysevere degree of harm and, therefore, the mandatory

natural life sentencing provision as applied to him violates the proportionate penalties clause.

Defendant’s argument is without merit. J.J. testified defendant inserted his penis into her

vagina two or three times a week for three years, starting when she was 10 years old, and that

defendant threatened to hurt her mother if she ever told anyone what he had done. J.J.

testified to how defendant inserted his penis into her anus after he discovered she had been

writing about these incidents in her diary. J.J. testified defendant caused her pain when he

rubbed her vaginal area with baby oil prior to the first time he inserted his penis into her

vagina, and she also testified he caused her pain when he inserted his penis into her anus.

Further, J.J. stated in her victim impact statement that, “although [the] assault did not result

in a death or long-term injury it still had a major emotional effect” on her, and that defendant

“nearly destroyed [her] family.” Clearly, defendant’s repeated sexual assaults of J.J.

physically harmed her and caused both her and her family severe emotional harm. Further,

M.C. and Y.D. similarly testified that when defendant was dating their mother in 1988, he

sexually assaulted them for approximately two years, beginning when they were,

respectively, 14 years old and 8 years old. Defendant told M.C. not to tell anyone because

her mother would not believe her and nobody would ever love her again; he also told Y.D.

not to tell anyone and bribed her with candy and chips. Defendant’s resistance to correction

is demonstrated by his repeated sexual assaults over multiyear periods of the children of the

women he dated. On these facts, defendant’s natural life sentence does not shock the moral

sense of the community as it was necessary to deprive him of the opportunity to reoffend.

Accordingly, defendant’s sentence was not violative of the proportionate penalties clause.

¶ 55 Defendant contends People v. Miller, 202 Ill. 2d 328 (2002), compels a different result.

In Miller, the 15-year-old defendant was convicted of two counts of first-degree murder

based on accountability when he acted as a lookout. Miller, 202 Ill. 2d at 330-31. The circuit

court refused to impose the statutorilymandated sentence of natural life imprisonment under

the multiple murder provision of the Unified Code of Corrections (730 ILCS 5/5-8-

1(a)(1)(c)(ii) (West 1996)), finding application of the statute to Miller would violate the

proportionate penalties clause. Miller, 202 Ill. 2d at 330. The court instead sentenced him to

50 years in prison. Miller, 202 Ill. 2d at 330. The supreme court affirmed, holding that the

mandatory life sentence “grossly distorts the factual realities of the case and does not

accurately represent defendant’s personal culpability such that it shocks the moral sense of

the community. This moral sense is particularly true *** where a 15-year-old with one

minute to contemplate his decision to participate in the incident and stood as a lookout

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during the shooting, but never handled a gun, is subject to life imprisonment with no

possibility of parole–the same sentence applicable to the actual shooter.” Miller, 202 Ill. 2d

at 341.

¶ 56 Milleris readily distinguishable, as the mandatory sentence of natural-life imprisonment

does not grossly distort the factual realties of the present case. Unlike in Miller, defendant

here was an adult in his forties and a repeat offender who, on his own accord, took his 10-

year-old stepdaughter into his bedroom, sexually assaulted her over three years, and forced

her to keep silent by threatening to hurt her mother and destroying her diary. Defendant was

not convicted on a theory of accountability but, rather, as the principal offender. As

discussed, defendant’s sentence is not disproportionate to the offense in a way that shocks

the moral sense of the community.

¶ 57 Next, defendant contends the mittimus incorrectly states he was convicted of predatory

criminal sexual assault of a child consisting of an act of anal penetration as charged in count

II, when his conviction actually was for mouth to vagina conduct as charged in count III. The

State concedes the error. Accordingly, we correct the mittimus to reflect defendant was

convicted of predatory criminal sexual assault of a child under count III (charging mouth to

vagina contact) instead of count II (charging penis to anus contact). See People v. Douglas,

381 Ill. App. 3d 1067, 1069 (2008) (appellate court may correct the mittimus without

remanding the cause to the circuit court).

¶ 58 For the foregoing reasons, we affirm defendant’s convictions and sentence and correct

the mittimus.

¶ 59 Affirmed; mittimus corrected.

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