NO. 4-04-0995 Filed: 5/22/06 

 IN THE APPELLATE COURT 

 OF ILLINOIS 

 FOURTH DISTRICT 

THE PEOPLE OF THE STATE OF ILLINOIS, 

 Plaintiff-Appellee, 

 v. 

CHAD D. DUNN, 

 Defendant-Appellant. 

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 Appeal from 

 Circuit Court of 

 Champaign County 

 No. 03CF1564 

 Honorable 

 Thomas J. Difanis, 

 Judge Presiding. 

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PRESIDING JUSTICE TURNER delivered the opinion of the court: 

In September 2003, a grand jury charged defendant, Chad D. Dunn, with 

five counts of predatory criminal sexual assault (720 ILCS 5/12-14.1(a)(1) (West 2002)) 

for his actions between January 2002 and June 2003 with two minors. In July 2004, 

defendant pleaded guilty to one count of predatory criminal sexual assault of a child that 

related to the minor born in June 1995. In September 2003, the trial court sentenced 

defendant to 30 years' imprisonment. Defendant filed a motion to reconsider his 

sentence, which the court denied after a November 2004 hearing. 

Defendant appeals, asserting he is entitled to a new sentencing hearing 

because the punishment applicable to predatory criminal sexual assault of a child 

violates the proportionate-penalties clause. We affirm. 

A statute's constitutionality presents purely a matter of law, and 

accordingly we review the trial court's conclusion de novo. People v. Sharpe, 216 Ill. 2d 

481, 486-87, 839 N.E.2d 492, 497 (2005). A statute carries a strong presumption of 
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constitutionality, and thus the party challenging the statute must clearly establish it 

violates the constitution. Moreover, we generally give deference to the legislature on 

sentencing matters because "the legislature is institutionally better equipped to gauge 

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

216 Ill. 2d at 487, 839 N.E.2d at 497. 

A proportionate-penalties challenge contends the penalty at issue was not 

determined according to the seriousness of the offense. Sharpe, 216 Ill. 2d at 487, 839 

N.E.2d at 498. Prior to our supreme court's decision in Sharpe, Illinois courts had 

recognized three distinct ways a penalty could violate the proportionate-penalties 

clause. See People v. Moss, 206 Ill. 2d 503, 522, 795 N.E.2d 208, 220 (2003). The 

first manner was if the penalty was "cruel, degrading, or so wholly disproportionate to 

the offense committed as to shock the moral sense of the community." Moss, 206 Ill. 2d 

at 522, 795 N.E.2d at 220. The second was, when comparing similar offenses, 

"conduct that create[d] a less serious threat to the public health and safety [was] 

punished more severely." Moss, 206 Ill. 2d at 522, 795 N.E.2d at 220. The final way 

was where offenses with identical elements were given different sentences. Moss, 206 

Ill. 2d at 522, 795 N.E.2d at 220. In Sharpe, the supreme court abandoned the second 

manner, which was known as the cross-comparison test, but noted defendants could 

still raise proportionate-penalties challenges under the other two methods. Sharpe, 216 

Ill. 2d at 519, 521, 839 N.E.2d at 516-17. 

Defendant asserts his proportionate-penalties challenge under the final 

method, referred to as the "identical elements" test, which was established in People v. 

Christy, 139 Ill. 2d 172, 564 N.E.2d 770 (1990). The Christy court concluded "common 
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sense and sound logic" dictate identical penalties for offenses with the exact same 

elements. Christy, 139 Ill. 2d at 181, 564 N.E.2d at 774. Thus, under the identical 

elements test, if offenses with identical elements do not have identical penalties, the 

penalties are unconstitutionally disproportionate and the greater penalty cannot stand. 

See Christy, 139 Ill. 2d at 181, 564 N.E.2d at 774. 

Here, defendant contends the penalty for predatory criminal sexual assault 

of a child (720 ILCS 5/12-14.1(a)(1) (West 2002)) is harsher than the penalties for 

offenses with identical elements, namely, predatory criminal sexual assault of a child 

while armed with a firearm (720 ILCS 5/12-14.1(a)(1.1) (West 2002)) and predatory 

criminal sexual assault of a child involving the discharge of a firearm (720 ILCS 5/12-

14.1(a)(1.2) (West 2002)). Thus, we begin by first determining whether identical 

elements exist. 

Under section 12-14.1(a)(1) of the Criminal Code of 1961 (Criminal Code) 

(720 ILCS 5/12-14.1(a)(1) (West 2002)), a person commits predatory criminal sexual 

assault of a child when (1) the person is 17 years of age or over, (2) the person commits 

an act of sexual penetration, and (3) the victim is under 13 years of age when the act 

was committed. Pursuant to section 12-14.1(a)(1.1) of the Criminal Code (720 ILCS 

5/12-14.1(a)(1.1) (West 2002)), predatory criminal sexual assault of a child while armed 

with a firearm occurs when (1) a person is 17 years of age or over, (2) the person is 

armed with a firearm, (3) the person commits an act of sexual penetration, and (4) the 

victim is under 13 years of age when the act was committed. Under section 12-

14.1(a)(1.2) of the Criminal Code (720 ILCS 5/12-14.1(a)(1.2) (West 2002)), a person 

commits predatory criminal sexual assault of a child involving the discharge of a firearm 
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when (1) a person is 17 years of age or over; (2) the person commits an act of sexual 

penetration; (3) the victim is under 13 years of age when the act was committed; and (4) 

during the commission of the offense, the person discharged a firearm. 

Predatory criminal sexual assault of a child while armed with a firearm and 

predatory criminal sexual assault of a child involving the discharge of a firearm clearly 

have an additional element than predatory criminal sexual assault of a child contained in 

section 12-14.1(a)(1) of the Criminal Code. However, defendant asserts predatory 

criminal sexual assault of a child is a lesser-included offense of both predatory criminal 

sexual assault of a child while armed with a firearm and predatory criminal sexual 

assault of a child involving the discharge of a firearm, and thus the predatory criminal 

sexual assault of a child has identical elements with both of the firearm provisions. We 

note defendant cites no authority in conjunction with that assertion. 

In the general "identical elements" cases cited by defendant, the courts 

found the compared offenses had identical elements where the offenses had all of the 

same elements. None of the cases addressed a pair of offenses where the offenses 

had the same elements but one of the pair had an additional element, like the offenses 

in this case. For example, in Christy, our supreme court noted the commission of 

kidnaping while armed with a "'knife with a blade of at least 3 inches in length'" constituted both aggravated kidnaping and armed violence predicated on kidnaping with a 

category I weapon. Christy, 139 Ill. 2d at 181, 564 N.E.2d at 774, quoting Ill. Rev. Stat. 

1987, ch. 38, par. 33A-1(b). In People v. Lewis, 175 Ill. 2d 412, 418, 677 N.E.2d 830, 

833 (1996), the Supreme Court of Illinois concluded the commission of robbery with a 

handgun constituted both armed robbery and armed violence predicated on robbery 
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committed with a category I weapon. In People v. Hampton, 363 Ill. App. 3d 293, 309, 

842 N.E.2d 1124, 1138 (2005), the First District found the commission of criminal sexual 

assault while armed with a firearm constitutes both aggravated criminal sexual assault 

and armed violence predicated on criminal sexual assault with a category I weapon. 

See also People v. Beard, 287 Ill. App. 3d 935, 938, 679 N.E.2d 456, 457-58 (1997) 

(aggravated vehicular hijacking/armed violence based on the vehicular hijacking and 

armed robbery/armed violence based on robbery); People v. Baker, 341 Ill. App. 3d 

1083, 1089, 794 N.E.2d 353, 359 (2003) (aggravated kidnaping resulting from kidnaping 

while armed with a firearm/armed violence predicated on the offense of kidnaping while 

carrying a category I weapon). 

This case is similar to People v. Espinoza, 184 Ill. 2d 252, 259, 702 

N.E.2d 1275, 1278 (1998), where our supreme court concluded the armed-violence 

offenses at issue did not have identical elements with the aggravated-battery offense. 

There, the armed-violence offenses had the following elements: "(1) a battery (2) 

committed 'on or about a public way, public property[,] or public place of 

accommodation or amusement' (3) while armed with a category II weapon" or a 

category III weapon (depending on the count). Espinoza, 184 Ill. 2d at 258, 702 N.E.2d 

at 1277, quoting 720 ILCS 5/12-4(b)(8) (West 1994). The aggravated-battery charge 

consisted of "two principal statutory elements: (1) a battery (2) coupled with a statutory 

aggravating circumstance." Espinoza, 184 Ill. 2d at 259, 702 N.E.2d at 1278. In 

reaching its conclusion, the Espinoza court noted the armed-violence charges had one 

more element than the aggravated-battery charge. Espinoza, 184 Ill. 2d at 259, 702 

N.E.2d at 1278. 
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Accordingly, we find the elements of predatory criminal sexual assault of a 

child, predatory criminal sexual assault of a child while armed with a firearm, and 

predatory criminal sexual assault of a child involving the discharge of a firearm do not 

have identical elements, and thus defendant has failed to prove the punishment for 

predatory criminal sexual assault of a child violates the proportionate-penalties clause. 

While the penalty for predatory criminal sexual assault of a child does not 

violate the proportionate-penalties clause under the identical-elements test, the failure 

of section 5-5-3.2(c) of the Unified Code of Corrections (730 ILCS 

5/5-5-3.2(c) (West 2002)) to also provide an extended term for 

convictions of predatory criminal sexual assault of a child under 

subsections (a)(1.1) and (a)(1.2) of section 12-14.1 of the 

Criminal Code (720 ILCS 5/12-14.1(a)(1.1), (a)(1.2) (West 2002)) 

does produce some sentencing inconsistencies that the legislature 

should consider addressing.

For the reasons stated, we affirm the trial court's judgment. 

Affirmed. 

MYERSCOUGH and KNECHT, JJ., concur.