NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except 

in the limited circumstances allowed under Rule 23(e)(1).

2023 IL App (3d) 220243-U

Order filed August 24, 2023

____________________________________________________________________________ 

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

2023 

THE PEOPLE OF THE STATE OF )

ILLINOIS, ) 

 ) 

Plaintiff-Appellee, ) 

 ) 

 v. ) 

 ) 

DAVID ZAURATSKY, ) 

 ) 

Defendant-Appellant. ) 

Appeal from the Circuit Court

of the 12th Judicial Circuit, 

Will County, Illinois. 

Appeal No. 3-22-0243 

Circuit No. 16-CF-2510 

Honorable 

Amy M. Bertani-Tomczak,

Judge, Presiding. 

____________________________________________________________________________

JUSTICE McDADE delivered the judgment of the court. 

Justices Brennan and Hettel concurred in the judgment. 

____________________________________________________________________________

ORDER

¶ 1 Held: The circuit court did not consider improper factors when sentencing 

defendant. 

¶ 2 Defendant, David Zauratsky, was convicted of two counts of criminal sexual assault and 

sentenced to consecutive terms of nine years’ imprisonment on each count. On appeal, defendant 

argues the Will County circuit court considered improper aggravating factors when imposing his 

sentence. We affirm.
2 

¶ 3 I. BACKGROUND 

¶ 4 On December 5, 2016, defendant was charged by indictment with two counts of predatory 

criminal sexual assault of a child (720 ILCS 5/11-1.40(a)(1) (West 2016)), five counts of criminal 

sexual assault (id. § 11-1.20(a)(4)), aggravated criminal sexual abuse (id. § 11-1.60(d)), and 

aggravated domestic battery (id. § 12-3.3(a-5)). Defendant pled guilty to two counts of criminal 

sexual assault, both Class 1 felonies, and the State dismissed the remaining charges. These counts 

alleged that between October 2, 2014, and October 1, 2016, defendant was over 17 years old and 

held a position of trust, authority, or supervision over his son, M.M., who was between the ages of 

13 and 18, and had forced M.M. to engage in acts of sexual penetration with defendant’s girlfriend, 

Tabitha Ledwa. The State further alleged that defendant threatened M.M. with punishment if he 

refused to participate. Ledwa faced similar charges and also pled guilty to two counts of criminal 

sexual assault for the same offenses.

¶ 5 The factual basis for the plea stated that a victim sensitive interview with M.M. was 

conducted after an anonymous call reported possible abuse. During the interview, M.M. stated 

defendant and Ledwa involved M.M. in their sexual activities on several occasions. M.M. referred 

to this as a “threesome” and said, “there were occasions where his penis would go into *** Ledwa’s 

mouth and also occasions where his penis would go into *** Ledwa’s vagina.” Defendant was 

present during these offenses.

¶ 6 After confirming that defendant did not have anything to add or change to the facts 

presented, the court found there was a factual basis, accepted defendant’s guilty plea as knowing 

and voluntary, and ordered a presentence investigation report (PSI). Defendant’s PSI showed that 

he had no prior felony convictions.
3 

¶ 7 At the sentencing hearing, M.M. testified that he was significantly affected because he had 

to move out of state to live with his mother after the abuse was discovered. He lost all of his friends

and had become withdrawn and reclusive. M.M. also indicated that he felt depressed but had not 

been formally diagnosed with depression and had declined to attend counseling because it made 

him uncomfortable. In addition to M.M.’s testimony, the State argued M.M.’s victim impact 

statement describing how defendant allegedly strangled him on one occasion over a set of lost keys 

was also relevant despite dismissal of the charge related to that incident as part of the plea. 

¶ 8 In his statement in allocution, defendant denied the strangulation allegation and asserted 

he had never laid a hand on M.M. He generally stated there had never been any long-term or 

physical abuse, and he never forced his son to do anything. He claimed that M.M. always made 

his own choices.

¶ 9 In imposing defendant’s sentence, the court stated: 

“Well, I do look at the fact that you have no prior criminal record so I should 

take that into account.

But I also should take into account, and I do take into account, that 

you are his father and— 

 *** 

*** That you are his father and you qualified you’ve never 

physically abused him, but this is far worse than that. 

These types of crimes have long lasting effects on the victims if they 

ever recover.

So I certainly don’t think you’re entitled to the minimum sentence. 

I sentenced your co-defendant to seven and a half years on each count. I’m 
4 

going to sentence you to nine years on each count. They will be consecutive 

to each other, served at 85 percent.” 

¶ 10 On February 8, 2021, defendant filed a motion to reconsider sentence. In denying the 

motion, the court noted the seriousness of the offenses, the victim’s status as defendant’s son, and 

that defendant had not acted alone in committing the crimes. Defendant’s subsequent attempt to 

withdraw his guilty plea was denied. Defendant appeals. 

¶ 11 II. ANALYSIS

¶ 12 Defendant argues on appeal that the circuit court erred when it considered improper 

aggravating factors at sentencing. Specifically, defendant contends the court’s consideration of his 

father-son relationship with M.M. and the psychological harm to M.M. was improper because both 

factors are inherent in the offense of criminal sexual assault.

¶ 13 At the outset, we note the parties dispute the standard of review. Defendant argues we 

should apply a de novo standard, citing People v. Larson, 2022 IL App (3d) 190482. The State 

argues we should apply an abuse of discretion standard, citing People v. Young, 2022 IL App (3d) 

190015. However, we need not determine this issue as defendant’s contention fails under either 

standard. See People v. Jones, 2017 IL App (1st) 123371, ¶ 45. 

¶ 14 Notably, defendant acknowledges he has forfeited the issue, as his counsel failed to include 

it in his motion to reconsider sentence. To overcome this forfeiture, defendant requests review 

under the plain error doctrine pursuant to Illinois Supreme Court Rule 615(a) and claims 

ineffective assistance of counsel for failure to preserve the issue. The plain error doctrine allows 

for the review of an unpreserved error 

“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 
5 

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.” People v. Piatkowski, 225 Ill. 

2d 551, 565 (2007). 

The first step in plain error analysis is to determine if an error occurred. Id. 

¶ 15 Generally, a factor implicit in the offense cannot be considered in aggravation at 

sentencing. People v. Phelps, 211 Ill. 2d 1, 11 (2004). However, sentencing courts are not obligated 

to avoid any mention of such factors as if they do not exist. People v. O’Toole, 226 Ill. App. 3d 

974, 992 (1992). Additionally, determination of the appropriate penalty to be imposed must be 

based on the circumstances specific to each individual case, “including the nature and extent of 

each element of the offense as committed by the defendant.” (Internal quotation marks omitted.)

People v. Saldivar, 113 Ill. 2d 256, 268-69 (1986) (quoting People v. Hunter, 101 Ill. App. 3d 692, 

694 (1981), quoting People v. Tolliver, 98 Ill. App. 3d 116, 117-18 (1981)).

¶ 16 The criminal sexual assault charges for which defendant was convicted included 

defendant’s position of trust, authority, or supervision over the victim as an element of the offenses. 

720 ILCS 5/11-1.20(a)(4) (West 2016). Defendant argues the court’s consideration of his specific 

relationship to the victim during sentencing was improper because his status as M.M.’s father 

establishes his position of trust, authority, or supervision over M.M. Thus, defendant asserts that 

his father-son relationship with M.M. was not a valid aggravating factor as it is implicit in the 

offense. 

¶ 17 However, consideration of defendant’s position as M.M.’s father was proper as the court 

is permitted to consider the nature and degree of the position of trust, authority, or supervision in 
6 

determining the seriousness of the offense. People v. Wolfe, 2021 IL App (4th) 190277-U, ¶ 61 

(consideration of defendant’s status as the victims’ basketball coach was not an improper factor at 

sentencing for a criminal sexual assault conviction). As M.M.’s parent, defendant held an 

undeniably powerful degree of trust, authority, or supervision over M.M. This specific relationship 

reflects the particular circumstances of this case and the extent of control defendant was able to 

exercise through his position of trust, authority, or supervision when committing the offenses.

¶ 18 Defendant also argues the court erred in referring to the psychological harm to M.M. during 

sentencing because it is a factor implicit in the offense of criminal sexual assault. Defendant further 

contends M.M.’s testimony provided no evidence that he suffered any harm other than the harm 

implicit in the offense. We find defendant’s argument unpersuasive. 

¶ 19 First, defendant relies on People v. Calva, 256 Ill. App. 3d 865, 877 (1993), to support the 

proposition that psychological harm is implicit in sexual assault offenses and cannot be considered 

at sentencing. However, numerous cases have since rejected Calva’s premise that consideration of 

psychological harm caused by sexual assault is an improper aggravating factor. See, e.g., People 

v. Bunning, 2018 IL App (5th) 150114, ¶ 18; People v. Sutton, 2022 IL App (5th) 190160-U, ¶¶ 40-

42; People v. Muraida, 2021 IL App (4th) 180650-U, ¶¶ 58-61. In addition to holding a position 

of trust, authority, or supervision over the victim, the elements of criminal sexual assault under 

section 11-1.20(a)(4) of the Criminal Code of 2012 include committing an act of sexual penetration 

and being over 17 years of age while the victim is over 13 but under 18 years of age. 720 ILCS 

5/11-1.20(a)(4) (West 2016). Harm is not a material element of this offense. People v. Kerwin, 241 

Ill. App. 3d 632, 636 (1993). 

¶ 20 Second, even if harm were arguably implicit in the offense, the degree of harm caused to 

the victim can be considered as an aggravating factor when determining the length of the sentence. 
7 

Saldivar, 113 Ill. 2d at 269. Sentencing courts may also reasonably infer that child victims of 

sexual abuse have suffered psychological damage. People v. Burton, 102 Ill. App. 3d 148, 154

(1981). In Burton, the circuit court properly considered in aggravation that defendant’s repeated 

sexual assaults had inflicted severe psychological trauma on his stepdaughters, which potentially 

would last throughout their lifetimes. Id. at 153; see also People v. Reber, 2019 IL App (5th) 

150439, ¶ 96 (holding the circuit court did not err in considering future psychological harm to a 

child victim as an aggravating factor based on the court’s experience with child victims of sexual 

assault). 

¶ 21 Third, although the degree of harm inflicted on M.M. was an appropriate aggravating factor 

to consider at sentencing, when viewed in context, the court’s statement was made directly in 

response to defendant’s assertion that he had never abused his son physically or forced him to do 

anything. See People v. Dowding, 388 Ill. App. 3d 936, 943 (2009) (in determining if consideration 

of an aggravating factor was proper, a reviewing court should consider the totality of the record, 

rather than select words or statements by the circuit court). This assertion implied defendant did 

not cause any harm to M.M., to which the court responded by admonishing defendant for 

attempting to diminish the severity of his conduct and highlighting the general magnitude of harm 

sexual assault victims typically endure. The court’s comments show that it emphasized the nature 

of the offense in determining defendant’s sentence, not any actual harm specific to M.M.

¶ 22 Furthermore, defendant’s sentence on both counts falls well within the 4- to 15-year 

sentencing range for a Class 1 felony conviction and statutory guidelines mandate that the 

sentences for each count run consecutively. 730 ILCS 5/5-4.5-30(a), 5-8-4(d)(1) (West 2016). This 

is neither greatly at variance with the spirit and purpose of the law, nor manifestly disproportionate 

to the nature of the offense. See People v. Alexander, 239 Ill. 2d 205, 212 (2010). Accordingly, 
8 

the circuit court did not err by sentencing defendant to an aggregate sentence of 18 years’ 

imprisonment. Because no error occurred, defendant cannot demonstrate ineffective assistance of 

counsel for failure to preserve a meritless issue. See People v. Coleman, 158 Ill. 2d 319, 349 

(1994). 

¶ 23 In coming to this conclusion, we note that defendant mentions, in passing, that the State 

incorrectly commented in argument on the oral sex M.M. would have to perform, an act that was 

not alleged or supported by the evidence. The State counters by highlighting it was an isolated 

misstatement made while describing the recorded victim sensitive interview, which the circuit 

court had personally viewed. The court made no mention of having considered this factor when 

reaching its decision and it is presumed that the court considered only competent evidence in 

determining defendant’s sentence. See People v. Smith, 176 Ill. 2d 217, 241 (1997). 

¶ 24 III. CONCLUSION

¶ 25 For the foregoing reasons, the judgment of the circuit court of Will County is affirmed. 

¶ 26 Affirmed.