SECOND DIVI SION September 28, 2010

No. 1-08-1536

THE PEOPL

E OF THE

STATE OFIL

LI NOI S, ) Appeal from the

) Circuit Court of Plaintiff-Appellee, ) Co ok Co un ty. ) v. ) 06 CR 25626 ) CORDELLO

FREEMAN, ) Honorab le ) Stanley

J. Sacks, Defend ant-App ellant. ) Judge Presi ding.

PRESID ING

JUSTICE

THEI S deliver

ed the opi nion of the

court: Following a jury

trial, defendant Cordello Freeman was c onvicted of predatory criminal sexual ass ault of a

child (72 0 ILCS 5/12-14. 1(a)(1 ) (West 200 4)) and was sente nced to 12ye ars’ imprisonment. He raises three issues on appeal: (1) the circ uit court erred in admitting testimony in violation of the rape shield statute (725 ILCS 5/115-7 (West 2004)); (2) the circuit court erred in failing to make a timely ruling on his motion in limine to preclude admission of his prior convictions; and (3) the circuit court impermissibly enhanced his sentence based on the victim’s age when that was an element of the crime for which he was convicted. F or the following reasons, we affirm defendant’s c onviction and sentence. The following facts were adduc ed from the trial testimony of the victim, B.A.; her sister, Adrea; her mo ther, Renee B allar d-Ros s; and Carey Kato , a fore nsic i nterv iewer w ith t he Chi cago Children’s Advocacy

Center, who interviewed B.A. after the assault. The victim, B.A., is the younge r sister of Tiffany

Ballard, defendant’s former g irlfriend and the mother of his son. In the summer of 2006, B.A. was 12 y ears old and had just completed sixth grade. On July 18, 2006,1-08-1536

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defenda nt was at t

he home in

which B. A. lived w

ith Tiffa ny a nd the re st of their

family to visit his son. At approximately 11:30 p.m. that evening, B .A. was lying on the bed in Tiffany ’s basement bedroom watching television. Tiffany went to the store but defendant stay ed at the house and watched television with B.A. During a commercial break, B.A. attempted to leave the room. De fendant

grabb ed her by

the arm a nd pulled her down onto the be d. He the n used his legs to force her leg s apart, slid her underwear to the side, and vag inally penetrate d her. She testified that his penis was fully inside of her and that the assault lasted for about five minutes. During the assa ult, defe ndant cov ered B .A.’s mou th with one

hand and used his ot

her hand to hold her arm over her head. B.A.’ s younge r sister, Adrea, walked past Tiffany ’s bedroom at that time and saw B.A. cry

ing while defendant was on top of her. Adre a entered the room and interrupted the assault. Defendant then stood up and Adrea went upstairs to tell her mother what had happened. Defendant left the house a nd B.A. went upstairs. B.A.’s mother called the police, who took B.A. to the hospital. Befor e calling the emer gency room doct

or, Dr. N agui Ha

nna, to te stify

at trial, the State requested a sidebar, during which the f ollowing colloquy took place : “MS. E GAN [A ssistant St ate’ s Attorney

]: Dur ing m y prep o f [Dr. Hann a], there is indication [ sic ] in his notes that he a sked the v

ictim if she

ever en gage d in sexual behavior before. I unde rstand from rape shield laws that is not admissible, but the victim told the [d]octor she had never had sex before. THE COURT: He didn’t have to ask that, does he?1-08-1536

- 3 - MS. EGAN: I

n this par ticular c ase, this

knowledg e helped

him form hi s opinion. In other words, the *** size of the tear to the hy men, location of the tear, th e fact that she ha

d never had sex bef

ore bec ame rele

vant in his determination *** [that] he believes the combination of the *** injury to the outside of the vagina and hy men tear is consistent with sexual penetration. Becau se she ha

d never had sex bef

ore, he s aid that w as a rel evant fa ct in his making that determination. THE COU RT : W hat do yo u sa y, Mr . Ga ll agh er [ def ens e co uns el] ? If that’s part of the diagnosis, I can see if she never had sex before. I t’s a 12-yea

rold girl

. MR. GALL

AGHER: It is and she already testified. There is no way we

can cro ss examine her. *** T here is no way

for us to q

uestion he

r about that topic at this time

since it’ s now bein

g broug ht up and she alrea

dy t estified . I su

ppose if we had kn

own that it

was par t of the dia

gnosis [a nd that the

State inte

nded to use that information] beforehand, the Court might have found that *** we would be allowed to ask her about that topic.

*** THE COURT: Do you want me to ca ll her back and ask her that? It’s part of the [d]octor’s dia

gnosis ba sed on the

fact she is a 12-y ear-ol d girl. T

here is injury to the girl’s va

ginal area. He said he consider ed that fact in determining1-08-1536

1 The effect of the court’s order , although poorly worded, was to admit the

testimony with the lim

iting inst ruction that it may

only be introd uced for diagno stic purposes . - 4 - there was sexual abuse[,] the fact there was no prior sexual conduct of the 12- ye ar-old g

irl. MR. GALL

AGHER: I understand. THE COURT: You can bring it out. Don’t emphasize. MS. EGAN: I

will. THE COURT: It’s a violation of the rape shield a ct. As part of the diagnosis you c an bring it out, but don’t dwell on it.” 1 Dr. Hanna then testified that he treated B.A . upon her arrival to the hospital emergency room. B. A. indica

ted that she was 12 y

ears old and desc ribed he r injury as a sexua

l assault w

ith penetration. He asked her about her pre vious sexual history and she told him that she had “never had sex before.” He collected evidence as part of a criminal sexual assault kit and performed a genital exam on B.A. He observed bruising a nd tenderness in the external areas of the vagina, indicating that force had been used. He then began an examination of the internal are as of the vagina. He explained that when a person has not had any prior sexual contact, he would expect the hy men, a membrane that separates the inner and outer parts of the va gina, to be “intact, meaning there are no tears.” It would not be “broken and [would] still [be] in its native shape and form[,] meaning that1-08-1536

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there’s been no penetration through it into the vagina.” When asked whether B.A.’s lack of prior sexual contact was relevant to his diagnosis, he replied:

“Yes. When I examined her, I was expecting to see a hy men that was intact and had not been broken before. *** [I nstead,] I saw [a] one millimeter tear[,] which is a very small tear [,] in the lower part of the hymen indicating there was an attempt to break it. *** [The tear] was recent, meaning it happened in the last few day s.” He also explained that, generally, when examining a sexual assault victim, he inserts a speculum into the vagina to conduct an examination inside of the vagina. Howe ver, he does not perform that test when the victim has not had previously ha d sex because it is likely to rupture the hy men. Dr. Hanna concluded that the combination of the bruises on the outside of the va gina, the tenderness and pa

in B.A. d escribe d, and the

tear in the hy

men indic ated tha

t “there was some force or attempt at penetrating the va gina. Usually

it’s assumed from intercourse or attempt at intercourse.” He further testified that this combination of injuries is consistent with a sexual assault allegation. As part of his cross-examination, defense counsel explored Dr. Hanna’ s observations about B.A.’s hy

men. Defense counsel acknowledg ed that B.A. had not previously had sex before and prompted Dr. Hanna to ag ain testify that B.A.’ s hymen was “intac t,” except for what he described as a “minute tear” of a bout one millimeter. Defense counsel then prompted Dr. Hanna to testify that if a

n erect penis fully

penetrated the vagina for f ive minutes, the hymen would have ruptured or the tear in the hy men would have been larger tha n one millimeter. Dr.1-08-1536

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Hanna agreed that the injury to B.A.’s hymen was consistent with the tip of the penis entering the vagina. Additionally , Dr. Hanna testified that he did not observe any bleeding around the tear in B.A.’s hy

men. Defense counsel also elicited testimony that Dr. Hanna documented no ot he r s ig ns of

tr au ma or br ui si ng on B. A. ’s bo dy. Following Dr. Hanna’s testimony and the dismissal of the jury, the cour t informed defenda nt that he would hav e to deci de wheth er he wo uld testif y on his own be

half. De fense counsel then requested a ruling on his motion in limine to bar the State from introducing evidence of defendant’s two prior fe lony convictions for impeac hment purposes. The court determined that it would not rule on the motion at that time because it was “premature,” citing Luce v. United States , 469 U.S. 38, 41-42, 83 L. Ed. 2d 443, 448, 105 S. Ct. 460, 463 (1984). The cour t further stated: “In order for

me to make [an] intelligent ruling [on] whether or not the State ca n use any evidenc e for impe achment convicti ons [ sic ] which the y wish to offer[,] which is the question to begin with, I cannot do that unless the [d]efendant do es , i n f ac t, te st if y. I w il l n ot sp ec ul at e w ha t h e w ou ld sa y if he we re to te st if

y, to begin with. I am not making a ruling at this point on your motion because at this point[,] it’s premature.” The State presented two more witnesses and entere d two stipulations before resting its case. Defendant then unsuccessfully moved for a directed verdict. Defendant’s theory

of the case was that Renee Ballar d-Ross, the victim’s mother, did not want defendant living in her home because she could not afford to support him along with her1-08-1536

- 7 -

six children and her grandchild. I n support of that theory, de fendant called Janelle AllenHolloway. She was de fendant’s caseworker at Kids’ Hope United, a private agency

affiliated with the Department of Children and Family Services (DCFS). She testified that at the time of the offense, defendant was 18 y ears old and was still under the care of DCFS. She testified that defendant and Ballard-Ross sought to have defendant placed with Ballard-Ross as a f oster child. She testif ied that if Ballar d-Ross be came de fendant ’s foster parent, she would

collect a stipend to defray the cost o f support

ing him. H owever , her ef forts to pl ace def

endant in Ballar d-Ross’ home ultimately were unsuc cessful. According to defendant’ s theory, when B allard-Ross was unable to secure defenda nt’s plac ement an

d collec t the stipe

nd, she ha

d B.A. ma

ke a fal se claim of sexual assault against defendant to ensure that he would not re turn to the household. The jury ultimately

found defendant guilty . In his posttrial motion, he asserted 21 errors that he claimed should result in a new trial. The circuit court denied his motion. Defendant’s presentence investig ation report (PSI) disclosed that he was 18 y ears old at the time of the offense and 20 y ears old at the time of sentencing. The PSI revealed that defendant had been convicted of two prior f elonies. In 2005, defendant pled g uilty to unlawful restraint. He served 194 day s in the Joliet Adult Detention Center and completed a 2-ye ar probation sentenc e. Defe ndant wa s later c onvicted of posses sion of a c ontrolled substanc e with intent to deliver and was serving a 3-y ear probation sentence at the time he committed the present crime. T he PSI also rev ealed that defe

ndant ent ered DCF S custody

at age three be cause of his mother’s drug addiction. He lived with various family members throughout his life and experienced physic al abuse at the hands of his cousin from ages thre e to six. However, he1-08-1536

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maintaine d positive

relation ships with h

is mother a

nd sibling s and has a

“wonder ful” relationship with his son. At the sentencing hearing, de fendant again called Allen-Hollowa y to testify

in mitigation. She testified to his history in the DCFS system and his experience with neglect and phy sical abuse. She testified that he received his high school equiva lency deg ree while he was incarcerated and later enr olled in a trade school to pursue a barber’s license

. In a llocution, defenda

nt stated t hat he wa s “hurt th

rougho ut this whol e situation” beca use he “look[e d] at the vic

tim as fam

ily. ” He said

that the e ncounter betwee n him and B .A. was a “misunderstanding.” He said that he would “just look towards the future ; and, hopefully, [he] will get a chance to be back out there with [his] son and continue to live [his] life.” The State then argued in agg ravation that defendant showed no remorse for assaulting B.A. an d was only

upset abo

ut how the

incident affec ted his lif

e. The Sta

te highl ighted h

is criminal history and arg ued that a lthough he had a r

ough ch ildhood, that did not ju stify sexually assaultin g a y oung g irl. The St

ate also argue d that the

assault on B.A. wa s not a “misunderstanding,” as defendant cha racterized it, but was “forced, sexual penetration” in which defendant held B.A. down and took advantag e of her in her own home, where she f elt safest. Defens e counse l respond

ed that de fendant

is entitle d to the mini

mum senten

ce beca use he is intelligent, able to improve himself, and capable of being rehabilitated. He took the initiative to procure his high school equivalency degree and sought a ba

rber’s license. Additiona

lly, he enrol led in sex a

buse cou nseling and expre ssed his de sire to continue his relationship with his son.1-08-1536

- 9 -

The cour t criticize d defend

ant’s characte

rization of

the sexual

assault o f a 12-y

ear-ol d girl as a “misunderstanding,” finding it to be “an odd choice of words.” I t also criticized defenda nt’s ref erence to B.A. a s “family

” and re marked t hat “hav ing sex wit

h a 12 y ear old i s not exactly looking upon someone as be ing part of y our family.” Additionally , referring to the assault of B.A. as a misunderstanding was “inse nsitive on his part[;] looked upon her as family[,] again[, ] insensitiv e to what t he girl went thro

ugh.” T he court remark ed that in gener al, defendants end up in prison through their own actions and “w hen you dec ide to have sex with a 12-year -old girl, that’s what will get y ou there.” The court also stated that sexual assault is the “kind of a crime that a [victim] lives with for a long time.” The court commented further on defenda nt’s prior criminal history, noting tha t he had two prior felony c onvictions and was on probation at the time of the current offense. T he court further noted that defendant previously served 194 day s in prison, which “apparently didn’t phase [him] in the slightest.” The court remarked that defendant wa s not a “first timer in the sys tem, which is other

aggr avation c ircumsta

nces [ sic ] besides that girl was [12], besides the fact that she someone [ sic ] who probably looked at him for support being the father of *** her niece or nephew *** but he looked upon her as just another person he wanted to have sex with at the age of 12.” The court considered other disclosures in the PSI as well. It acknowledg ed that defendant had a difficult upbringing , but others who have similar childhoods “don’t go around having sex with a 12 yea

r old. They have

to deal with the situation. And dealing with it is not having sex with a 12 yea

r old.” The court noted that there was no evidence that defendant was1-08-1536

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sexually abused himself, but that in any event, that would not mitigate the abuse perpetrated on B.A. Ultimately, the c ourt noted that as a Class X offender, defendant wa s eligible for a sentence between 6 and 30 y ears, and sentenced him to 12 y ears’ imprisonment. Defense counsel then filed a motion to reconsider the se ntence. In it, counsel arg ued, inter alia , that the court “improperly considered in aggrava

tion matters that are implicit in the offense.” The court denied the motion, stating that the sente nce was “reasonable” but “significant [because] the crime was significa nt and the prior record significant also.” De fendant then filed this appeal from his conviction and sentence. Defendant first argues that the c ircuit court committed reversible error in admitting Dr. Hanna’s testimony that B .A. had “never had sex before” in violation of section 115-7( a) of the Code of Cr

iminal Proc edure of

1963 (Code ) (725 I

LCS 5/1 15-7(a)

(West 2004 )), whic

h limits the admiss ibility

of evide nce rel ated to th e prior s exual histor y or reputat ion of a se

xual assau

lt victim. In response, the State arg ues that Dr. Hanna’s testimony was admissible under section 115-13 of the Code (725 ILCS 5/115-13 (West 2004)), which makes a sexual assault victim’s out of court statemen ts to a doc tor made

for the p urpose of medical t reatmen t or diag nosis admissible as substantive evidence. Defendant concedes that he did not preser ve this issue for appeal and that it is forfeited. Nevertheless, we

may review t his issue f

or plain e rror und er Supre me Court Ru

le 615(a ) (134 Ill. 2d R. 615(a)). The plain error doctrine per mits a reviewing court to consider unpreserve d errors where: (1) an error occ

urs and the evidence is so closely balanced that the error alone “threatened to tip the scales of justice aga inst the defendant,” regardless of the seriousness of the1-08-1536

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error; or (2) an error occ

urs which is so serious that it affected the fairness of the trial a nd undermined the integrity

of the judicial process, regardless of the closeness of the evidence. People v. Piatkowski , 225 Ill . 2d 55 1, 565 (2007 ), cit ing People v. Herron , 215 Ill. 2d 167, 186- 87 (2005). Defend ant arg ues that the court’ s error

require s rever sal under

either prong of

a plain error analy sis. He argues that the evidence wa s closely balanc ed because there was no phy sical evidence to support B.A.’s claim of sexual assault and the testimony provided was inconsistent. Thus, Dr. Hanna’s testimony “tipped the scales” against him because the State relied on that testimony as proof that B.A . had been assaulted. Defendant also arg ues that the court’s admission o f the test

imony , in contr

avention of section 115-7, w as so ser ious that it

denied hi m a fair trial. Nevertheless, if

there is n o error , there c an be no p lain err or. Thus, we must fi

rst determine whether admitting Dr. Hanna’ s testimony was error

. Piatkowski , 225 Ill. 2d at 565. In I llinois, we do not have a uniform system of c odified evidentiary rules; rather, our rules of evidence gener

ally derive f

rom the common law. But see I ll. R. Evid. 101 et seq

. (adopted Sept. 27, 2010, eff. Jan. 1, 2011). However, in certain cir cumstances, our legislature has created statutory

rules of evidence. See, e.g. , 725 IL CS 5/115-5 et seq . (West 2008). The challenged evidence in this case is ar guably governed by

two statutory rules of evide nce, sections 115-7(a) and 115-13 of the Code. Thus, we must examine the applicable statutes a nd determine which statute the legislature intended to apply to the admissibility of Dr. Hanna’s te st im on y.1-08-1536

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Section 11 5-7(a)of the Cod e, common

ly r eferr ed to as th e “rape

shield sta

tute,” wa s first enacted in Illinois in 1978 (Ill. Rev. Stat. 1979, ch. 38, par. 115-7) and has since been amended several times. The statute in effect at the time of the off ense in this case provided in relevant part: “In prosecutions for pre datory cr iminal sexual assault of a child [720 IL CS 5/12-14.1 (West 2004)] *** the prior sexual activity or the reputation of the allege d victim *** is inadmiss ible exce pt (1) as evidenc e conce

rning the past sexual con

duct of th e alleg ed victim * ** with the accuse d when thi s evidenc e is offered by

the accused upon the issue of whether the alleg ed victim *** consented to the sexual conduct with respect to which the offense is alleg ed; or (2) whe n constitu tionally require d to be adm

itted.” 7 25 IL

CS 5/115-7( a) (West 2004). Our supr eme cour t has on two

occasions interpreted se ction 115- 7(a) as “absolut ely bar[ring] evidence of the alleged vic tim’s prior sexual activity or reputation, subject to” the two exceptions contained in the statute. People v. Santos , 211 I ll. 2d 395, 4 01-02 (20 04); People v. Sandoval , 135 Ill. 2d 159, 170-71 (1990). The court c oncluded that the statute is “neither vague nor ambiguous” in preventing either pa rty from introducing

evidence of the victim’s prior sexual history, specif

ically noting that it “doe s not limit its proscri ption to a d

efenda nt’s atte mpts to introduce evidence of the victim’s prior sexual encounters.” Sandoval , 135 Ill. 2d at 170. Further more, the statute ma

kes “no exception ba sed on the purpose f

or which the evide nce is1-08-1536

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offered.” Santos , 211 I ll. 2d at 39 5. Thus, se ction 115- 7(a), a s interpr eted by our supre me court , is unambiguous in making evidence of the victim’s prior sexual history inadmissible. The General Assembly

subsequently enac

ted section 115-13 of the Code, which provides : “I

n a pr osec ution for violat ion of Sect ion ** * 12- 14.1 * ** of

the [C ode], statements made by the victim to medical personnel for purposes of medical diagnosis or treatment including descriptions of the ca use of the symptom, pain or sensations, or the inception or general cha racter of the cause or external sourc e thereof insofar as reasonably pertinent to diagnosis or treatment shall be admitted as an exception to the hearsay rule.” 725 IL CS 5/115-13 (West 2004). Section 115-13 is a “codification of the common law rule permitting the he arsay use of information revealed in medical treatment.” People v. Falaster , 173 Ill. 2d 220, 229 (1996), citi ng People v. Roy , 201 I ll. App. 3d 166, 179 ( 1990). The admission of such t estimony is limited to those cases involving certain sex offenses, including the offe nse for which defendant was prosecuted. 725 IL

CS 5/115-13 (West 2004). We have pr

eviously observe d that the

plain lan guag e of section 115-1 3 “evinc es a legislative intent to apply this provision broadly ,” encompassing testimony from nurses, treating doctors, evaluat

ing doc tors, or a

ny o ther med

ical pro fessiona

l that is re asonably

pertine nt to diagnosis or treatment where it provides details of the sexual act c ommitted, “including how, when, and where the act occur red.” Roy , 201 Ill. App. 3d at 178; see also People v. Davis , 337 Ill. App. 3d 977, 990 (2003). I n In re T.T. , we explained that a doctor’s testimony r egarding1-08-1536

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other circumstances of the attack, including “ how [the victim] was penetrated, the pain, and the offender’s use of a lubricant,” wa s admissible because it was relevant to the doctor’s assessment that the victim sustained sexual abuse. In re T. T. , 384 Ill. App. 3d 147, 164 (2007). Significantly, in Falaster , our supreme court further expanded the scope of a dmissible testimony to include statements regarding the victim’s prior se xual history with the defendant. See Falaster , 173 Ill. 2d at 223, 229. I n that case, the court admitted a nurse’s testimony in which she rec ounted the

victim’s d

isclosure that she had beg

un enga ging in oral and vagina l sex with the defendant, her father, approximately five yea rs earlier. Falaster , 173 I ll. 2d at 22 2-23. Thu s, section 1 15-13, a s interpr eted by our supre me court and appe llate cou

rts, is una mbiguous in making a doctor’ s testimony

recount ing a vic tim’s sexua

l history admissible , provide d that it is relevant to the doctor’s opinion that the victim was, in fact, sexually abused. See Falaster , 173 Ill. 2 d at 228-2 9; In re T. T. , 384 Ill. App. 3d at 164-65. Thus, we are confronted with one statutory rule of evidence that would make Dr. Hanna ’s testimony that B.A. had “ never had sex before” inadmissible and one statutory rule of evidence that would

make the statemen t admissibl e. Ordinarily , when two rules of evidenc e confli ct, courts may consider

whether the evidence is admissible for one purpose, but not for a nother. See, e.g. , People v. Moss , 205 I ll. 2d 139, 1 56 (2001)(eviden ce of other crime s is gene rally inadmissible to demonstrate a propensity to commit another c rime; however, other-crimes evidence is admissible to prove intent, modus operandi , identity, motive, or absence of mistake). In such cases, trial cour

ts exercise their broad discretion to make those determinations in light of the parties’ arguments for and against admissibility. Moss , 205 Ill. 2d at 156.1-08-1536

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Howeve r, in this c ase, we

are pre sented with two una mbiguous legisla tive ena ctments that make the same piece of evidenc e simultaneously admissible

and inadm

issible; th us, we mus t turn to the rules of statutory c onstruction to resolve this conflict. See Moore v. Green , 219 I ll. 2d 470, 479(2006). Where the plain lan guag e of one s tatute ap

pears to conflic t with the p lain language of another

statute, we must look beyond the plain lang uage of the statutes to determine the legislature’s intent, which is of paramount importance. Moore , 219 Ill. 2d at 479. The legislature is presumed to know of existing statutes at the time it enacts new statutes. People v. Jones , 214 I ll. 2d 187, 1 99 (2005) . Thus, we cannot pr

esume tha t the leg islature

would ena

ct a law that completely c ontradicts an existing law, thereby repealing the predece ssor statute by implication. Moore , 219 Ill. 2d at 479. Rather, we must attempt to construe the conf licting statutes together, in pari mate ria , where such an interpretation is reasonable. Moore , 219 Ill. 2d at 479. Additionally, to resolve this conflict, we ma y ascer tain the legislature’s intent by consider ing the p urposes o f the stat

utes, the problems that they targe t, and the goals they

seek to achieve. Moore , 219 Ill. 2d at 479-80. As Sandoval recounts, prior to the enactment of section 115-7, evidence of a victim’s sexual history was admissible at trial when the def endant asserted an affirmative defe nse of consent. Sandoval , 135 Ill. 2d at 167-68. However, c onsistent with traditional evidentiary rules regarding the admissibility of evidence of a witness’s charac ter and reputation, such evidence was limite d to testimony r egard ing the v ictim’s g eneral

reputat ion for immorality

and unchastity and did not include specific acts of immorality or promiscuity. Sandoval , 135 Ill. 2d at 167-68, citi ng People v. Ellison , 123 I ll. App. 3d 615, 624 ( 1984); se e also Fe d. Rs. Evid. 404(a) ( with1-08-1536

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limited exc eptions, e

vidence of a person’s cha

racter is inadmiss ible for p

roving c onformity therewith), 608(b) (with limited exceptions, specific instances of a witness’s conduct a re inadmissible for demonstrating truthfulness). Because la ck of consent was an element of the sexual assault offense, it was deemed permissible to allow a defendant to introduce evidence of the victim’s general reputation for uncha stity and immorality as it was more likely that “ ‘ an unchaste woman would assent to such an act than a virtuous woman.’ ” Sandoval , 135 Ill. 2d at 168, q uoti ng People v. Collins , 25 Ill. 2d 605, 611 (1962). However, with the passage of sec tion 115-7, the legislature prohibited defendants from introducing any

evidence of the victim’s sexual history, e xcept as between the defendant and the vi cti m wh ere it was per ti nen t t o a c ons ent def ens e. Il l. Rev . S tat . 19 79, ch. 38, par . 11 5-7 . In enactin g the sta tute, the bill’s spon sor decl ared tha t its purpos e “is to pr

otect the rape victim from bein g hara ssed and a

bused as t hey have be en in the p ast.” 80t h Ill. Gen. Asse

m., House Proceedings, May

11, 1977, at 65 (statements of Representative Jaffe). Speaking in f avor of the bill, Representative Geo-Karis stated that the statute would prevent def ense attorney s from “destroy[ing] and victim

iz[ing] a victim in a ra

pe case .” 80th I

ll. Gen. A ssem., Ho

use Proceedings, November 3, 1977, at 58 (statements of Repr esentative Geo-Karis). Representative Cunningham added that the bill is a “compassionate” one, “desig ned to protect the dignity ” of sexual assault victims. 80th Ill. Gen. Assem., House Proceedings, N ovember 3, 1977, at 58 (statements of Representative Cunningham).1-08-1536

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Represe ntative Jaf

fe also r eferr ed to a fl oor deba

te on an e arlier, albeit un success ful, version of the bill in which he summarized the findings of the General Assembly ’s Rape Study Committee, which concluded: “We have the problem [that] many women neve r report rape because they fear the publicity and the r apist[s’] thr

eats and they fear th e police

and the c ourt system. *** [A] woma

n who has c laimed to b e raped can be q uestione d about he

r past sexual behavior even [if] it has nothing to do with the case, which in effect turns her into the defen

dant. *** Whenever

you have a r ape cas e you have the victim really being

turned into the defendant. The victim is constantly asked over and over and over again about her e [ sic ] sex history. It happe ns on the trial level and it happens when the State’s Attorney interrogates her. I

t happens when the police interrogate her. So as a result of that *** y ou’ll find that women are very hesitant to com e forwa rd and report the cri me of r ape and they’re ve ry hesita nt to go through the entire of [ sic ] rape because they felt that they ar

e abused time and time and time again.” 79th Ill. Ge n. Assem., House Proceedings, March 19, 1975, at 29-30 (statements of Representative Jaffe). The evidentiary

rationale for precluding a def endant from introducing evidence of the victim’s sexual history with people other than the defe ndant is rooted in the fact that such evidence is irrelevant to the issue of whether the victim conse nted to sexual relations with the defendant. See Sandoval , 135 Ill. 2d at 177-78; see also Ellison , 123 Ill. App. 3d at 624 (quoting Senator Wa shington

in a floor debate a s stating , “ ‘I

find just im

possible to

understa nd how pas t1-08-1536

- 18 -

sexual con

duct is re levant a

t all to the

case’ ” ), quoting

80 Ill . Gen. As sem., Sena te Proce edings, Novembe r 22, 1977 , at 8-9 ( statemen ts of Sena tor Washing

ton). We su

mmarized t

his policy in People v. Summers by stating that sec tion 115-7 was intended to: “preve nt the def endant f rom hara ssing an

d humiliati

ng the c omplaining

witness with evidence of either her reputation for c hastity or specific a

cts of sexual conduct with persons other than defendant, since such evide nce has no bearing on whether she consented to sexual relations with the defendant.” Summers , 353 I ll. App. 3d 367, 373 (2004), aff’d , 214 Ill. 2d 548 (2005). Moreover, in Santos , the supreme court rejected the defe ndant’s attempt to introduce two conflicting statements made by the victim involving a false allegation of rape as an improper attempt to introduce evidence that was collateral to any material issue in the case. Santos , 211 Ill. 2d at 405-06 (“[w]hether [the victim] had, unbeknownst to defendant, eng aged in sexual relation s with some one else is wholly unrelat

ed to the q

uestion of whether defenda nt reasonably believed that [the victim] was of age when the act of sexual penetra tion took place, which was the only controver

ted issue on this charge” (emphasis in origina l)). However, the policies underly ing section 115-7 took shape long before the legislature had ena cted section 115-1 3 and in a d iffere nt context. Section 11 5-13 was enacte d in 1998 a s a codification of the holding in People v. Gant , 58 Ill. 2d 178, 186 (1974), in an effort to pre vent the incon sistent ap

plication of that le gal rul e in the tr ial cour ts. 85th Ill. Gen. A ssem., Ho use Proceedings, May

22, 1987, at 268 (statements of Representatives McCracken and H omer). In Gant , the supr

eme cour t adopted the propo sition:1-08-1536

- 19 - “ ‘State ments of a

present ly e xisting bod

ily c ondition ma

de by a patien t to a doctor consulted for treatment are almost universally admitted as evidence of the facts stated ***. *** [T]heir reliability is assured by the likelihood that the patient believes that the effectiveness of the trea tment he receives may

depend largely upon the accuracy

of the information he provides the phy sician. *** ‘The exce ption [to the

hearsa y r ule] might

be taken one step f

urther to encompass statements made to a phy sician concerning the cause or the external source of the condition to be treated.’ ” Gant , 5 8 Il l. 2d at 18 6, qu ot in g E . C le ar y, McCormick on Evidence § 292, 690-91 (2d ed. 1972). The legislature made clear tha t it only intended for the rule to apply in those cases involving certain sexual offenses. 85th Ill. Gen. A ssem., House Proceedings, May 22, 1987, at 269 (stateme nts of Repr

esentat ives Home

r and McCracken

) (Repre sentative

Homer: “ Your bill codifie s [ Gant ] with reg ard to sex offense s. *** [W]as it y our inten t to chang e the cur

rent rule with r espe ct to t

he ad missi bilit y o f such stat

emen ts in t he pr osec ution of other ki

nds of case s[?]” Represe ntative Mc Cracke

n: “No. Not at all an

d it should not be inte

rprete d as such” ); 725 I

LCS 5/115-13 (West 2004). Moreover, the sexual assault victim’s statements must be admitted “as evidence of the facts stated.” 85th I ll. Gen. Assem., House Proceedings, May 22, 1987, at 268 (statement of Representative Homer). As discussed above, section 115-13 codified a common law rule of e vidence. Historically, the evidentiar y rationale f

or admitting such hearsay testimony as substantive evidence was rooted in the “substantial guar antees of trustworthiness” and “special g uarantees of1-08-1536

- 20 -

credibi lity” inhere

nt in such s tatement s made by patients t o medica l personnel beca

use patie nts know that a false statement may cause misdiagnosis or mistreatment. White v. Illinois , 502 U.S. 346, 355, 116 L. Ed. 2d 848, 859, 112 S. Ct. 736, 742 (1992) (construing section 115-13) ; see also Roy , 201 Ill. App. 3d at 179 (medical hearsay testimony has historically been r

egarded as highly re liable because a patient’s desire for pr oper diagnosis and treatment outweighs any motive to lie). In lig ht of the a

bove, we can con strue se ctions 115 -7(a) a nd 115-13 togethe

r so as not

to offend the purpose of either statute: their construction turns on rele vance. The purpose of excluding evidence under section 115-7(a) is to bar irrelevant and prejudicial evidence of the victim’s sexual history that has no bearing on whether the victim consented to sex with the defendant but instead is used to harass the victim. The purpose of admitting evide nce under section 115-13 is to admit evidence that is otherwise relevant and reliable , but would be barred by the hearsay rule. Thus, a victim’s sexual history, or lack thereof , taken by the e

xamining doctor following a sexual assault examination comports with both statutes because it is relevant to a determination of whether the victim was sexually assaulted but does not have the effect of harassing the victim. We find support for this conclusion in Sandoval . In e xamining M ichiga

n’s rape shield statute, Sandoval acknowledged the possibility that under certain “extraordinary circumstances,” a sexual assault victim’s prior sexual history could be releva nt and admissible to explain “ ‘ “a victim’s physical condition indicating inter course.” ’ ” Sandoval , 135 Ill. 2d at 184-87, quoting People v. Hacket

t , 421 M ich. 3 38, 35 5 n.4, 421 N. W.2d 120, 1 28 n.4 (1984 ), quo ting United1-08-1536

- 21 -

States v. K

asto , 584 F.2d 268, 271 n.2 (8th Cir. 1978). Similarly, Sandoval recog nized that a New Hampshire court permitted evidence of a victim’s prior sexual history where it was r elevant to explain physical injuries. Sandoval , 135 Ill . 2d at 187, c itin g State v. LaClair , 121 N.H. 743, 746, 433 A.2d 1326, 1329 (1981). Here, Dr. Hanna testified that the fact that B.A. had “never had sex before” was relevant to his examination and ultimate conclusion that she had been sexually assaulted. Dr . Hanna testified that the lack of prior sexual contact was an important fact that explained the pre sence of the rec ent tear

he obser ved in the hymen. Addit

ionally, he alte

red the i nternal vagina l exam to avoid further damage to the hy men. Moreover, the combination of the hy men tear and the external vaginal bruising led Dr. Hanna to c onclude that “there was some force or attempt at penetra ting the vagina . Usually

it’s assumed from in

tercourse or atte

mpt at inte

rcourse .” Thus,

we conc lude that

Dr. Hann a’s state ment that B .A. had “

never ha d sex befor

e” was a dmissible under section 115-13 as relevant evidence of the fact that a sexual assault occurred, without offending the legislature’s intent in ena cting section 115-7 to avoid undue harassment of B.A. Becau se there

was no er

ror in ad mitting th e testimon

y, t here ca n be no pla

in error and, thus, defendant’s argument is procedur ally defaulted. Defendant next argues that the circuit court e rred in administering a “blanket policy ” of reserving ruling on his motion in limine to exclude prior convictions for impeachment purposes until afte r the def endant ha s testifie d, despite that fact that he d

id not ultima

tely testify in this case. A t the time that defe

ndant file d his appe llate bri ef, the s upreme c ourt had i ssued its opinion in People v. Patrick , 233 Ill. 2d 62, 80 (2009), a consolidated ca se addressing our1-08-1536

- 22 -

holdings in People v. Patrick , No. 1-04-1895 (2006) (unpublished order under Supreme Court Rule 23) and People v. Phillips , 371 Ill. App. 3d 948 (2007) . The supr eme cour t held tha t a circuit court abuses its discretion if it administers a “blanket policy ” of refusing to rule on a pending motion in limine and that the error is reversible where the defendant testified notwithstanding the court’s failure to rule. Patrick , 233 Ill. 2d at 74-75. However, Patrick also held that if the defendant chose not to testify , then he had forfeited review of the c ircuit court’s failure to rule on his motion. Patrick , 233 Ill. 2d at 77. The supreme court had also grante d petitions for leave to appeal in People v. Averett , 381 Ill. App. 3d 1001 (2008), appeal allowed , 231 Ill. 2d 671 (2009), and People v. Tucker , No. 1- 06-2619 (2008) (unpublished order under Supreme Court Rule 23), appeal allowed , 231 Ill. 2d 684 (2009 ), at tha

t time. The

court the n issued a subseque nt per curiam order c larify ing that it allowed those appeals to consider the specific question of whe ther a defendant could seek review based on the circuit court’s “blanket policy ” of refusing to rule on his motion in limine , even if he ultimately chose not to testify

. People v. Averett , 237 Ill. 2d 1, 5 (2010). It appears that def

endant’s argument on appeal was pr emised on the possibility that the supreme court would find a circuit court’s “blanket policy ” of refusing to rule on pending motions in limine to be so eg regiou s that it wo

uld overc ome the f

orfeitur e that re sulted fr

om a defendant’s failure to testify . However, after reviewing the issue as a matter of structural error, constitutional error, and plain error, Averett reaffirmed the holding in Patrick , further concluding that a circuit court’s application of a “blanket policy ” of refusing to rule on a pending motion in1-08-1536

- 23 -

limine is not reviewable on appeal where the def endant did not testify at trial. Averett , 237 I ll. 2d at 15-16. He re , a s i n t he ca se of

de fe nd an t P hi ll ip s, th e c ir cu it co ur t d id no t, in fa ct , a pp ly a “blanket policy”

of refusing to rule on a motion in limine . See Patrick , 233 Ill. 2d at 77. Rather, the court determined that it would be “premature” to rule on the motion before defendant testified and that it would have to “speculate” on defenda nt’s testimony in order to determine whether the prejudicial effect of the pr ior convictions outweighed their probative value. See Patrick , 233 Ill. 2d at 77; see also Averett , 237 I ll. 2d at 15 (“I n [defend ant] Phillips ’ case [in Patrick , 233 I ll. 2d at 77 ], the tria l judge d id not use a

blanket p olicy

”). Howe ver, it is a distinction without a difference; defendant did not testify in this case. Thus, regardless of whether the cour t had a “b lanket po licy

” to rese rve rulin g on motions in limine , we conclude that the issue is unreviewable under either Patrick or Averett . See Patrick , 233 I ll. 2d at 77 (a circ uit court’s discrete decision to defer ruling on a motion in limine is not preserved for review where the defe ndant doe s not testif

y a t trial); Averett , 237 Ill. 2d at 7, 15 (although apply ing a “blanket policy” to defe

r ruling on a motion in limine is an abus e of discretion, it is ultimate ly unreviewable where the defe ndant does not testify at trial). Additiona

lly, contrar

y to defenda nt’s cont ention, w e canno t review

this issue f

or plain

error. Averett , 237 Ill. 2d at 12. As explained above, the plain error doctrine bypasse s normal forfeiture principles and permits review of unpre served errors in certain circumstanc es. Averett , 237 Ill. 2d at 11. However, def endant’s decision not to testify “goes beyond norma l forfeiture.” Averett , 237 Ill. 2d at 12. By not testifying, a r

eviewing court is deprived of an ade quate record1-08-1536

2 The State argue d in passin

g that de fendant

waived the senten

cing iss ue beca use defense counsel withdrew his argume nt in the postsentencing motion that defendant erroneously r

eceived an “enhanced pe

nalty.” See Gallagher v. L enart , 226 Ill. 2d 208, 229 (2007) (waiver is the “intentional relinquishment of a known right” ). However, defense counsel withdrew an arg ument based on an “extended-term sentence,” whic h rightly did not apply

because defendant’s sentence was within the statutory rang e. - 24 - with which to evaluate the circuit court’s decision on the admissibility of the prior convictions. Averett , 237 Ill. 2d at 12. The reviewing court would be forced to speculate on the substance of the defe ndant’s t estimony as well a s the ques tions aske d by the prose cution on c

rossexamination. Averett , 237 Ill. 2d at 12. Thus, we cannot apply the plain error doctrine to review an otherwise unpreserved error because there would be nothing to review

. Finally, defe

ndant argues that the circuit court impermissibly considered B.A.’s age a s an aggravating f

actor in sentencing where it was a lso an element of the crime for which he convicte d, result

ing in a “ double en

hanceme nt.” Altho

ugh nei ther def endant nor the State address ed the iss

ue, we mu st conclu

de that de fendant

has forf eited this argume nt as well

. 2 The supreme court recently

reiterated the “well settled” proposition that to preserve a claim of sentenc ing err

or, a def endant mu st object t

o the err or at the sentenc ing hea

ring as well as r aise the objection in a postsentencing motion. People v. Hillier , 237 Ill. 2d 539, 544 (2010), citing People v. Bannister , 232 Ill. 2d 52, 76 (2008); see also People v. Hall , 194 Ill. 2d 305, 352 (2000). Although defendant included the double enha ncement argument in his postsentencing1-08-1536

- 25 -

motion, he did not make a contemporaneous objection at the sentencing he aring. Thus, he has not preserved the issue for review. Nevertheless, forfeited arg uments related to sentencing issues may properly be

reviewed for plain error. Hillier , 237 I ll. 2d at 54 5. As with t rial err ors, a de fendant

must show e ither tha

t: “(1) the evidenc e at the s entenci

ng hea ring wa s closely

balance d, or (2)the err

or was so egregious as to deny

the defendant a fair sentencing hearing.” Hillier , 237 Ill. 2d at 545. Under either prong of the plain error rule , defendant bears the burden of persuasion. Hillier , 237 Ill. 2d at 545. We m

ust “hold t

he defe ndant to hi s burden o f demonst rating plain er ror” an d if he fa ils to meet that burden, we must honor the procedural defa ult. Hillier , 237 Ill. 2d at 545, 549. The supr eme cour t continua lly e xpresses that one of

the most imp ortant fu

nctions of this court is to determine whether an issue has been prope rly preser ved for review. People v. Smith , 228 Ill. 2d 95, 106 (2008) (the other par amount function is to determine whether we have jurisdict ion to ente

rtain the appeal) . Thus, we

must perf

orm a pro per for feiture analy sis to avoid the “regrettable” conse quence that results when the supreme court “a llows leave to appeal on an issue that it deems sufficiently important for [its] consideration and then must find the issue forfeited” as a result of an appellate court’s failure to first determine whether the issue ha d been properly pre served for review. Hillier , 237 I ll. 2d at 54 9. Be caus e def

enda nt fa iled t o rec ogni ze his forfeiture on this issue, he has not made any argument under either prong of the plain error doctrine. As such, he “obviously cannot meet his burden of persuasion.” Hillier , 237 Ill. 2d at 545. Thus, he has forfeited plain error revie w. Hillier , 237 Ill. 2d at 545.1-08-1536

- 26 -

However, the supreme court has rec ently clarifie d that the forfeiture rule may be relaxed and an issue substantively re viewed where “the basis for the objection is the conduc t of the trial judge.” People v. McLa

urin , 235 Ill. 2d 478, 485-88 (2009). Notwithstanding trial counse l’s obligation to raise contemporaneous objections to allow for the immediate cor rection of trial errors, forfeiture may

be relaxed in certain “extraordinary circumstances” under People v. Sprinkle , 27 Ill. 2d 398, 400-01 (1963). McLa urin , 235 Ill. 2d at 487-88 . Specifically, for feiture may only be relaxed where: (1) counsel’s objection to the court’s inappropria te comments to the jury risk alie nating t he jury by a ppearin g disre spectfu

l of the c ourt’s a

uthority ; (2) def

ense counsel’s objection to the court’s conduct outside the presence of the jury “ ‘would have fallen on deaf ears’ ”; or (3) the cour t relies on social commentary , rather than evidence, in sentencing a defendant to death. McLa urin , 235 I ll. 2d at 48 7-88; People v. Sprinkle , 27 Ill. 2d 398, 400-01 (1963). Such a limited application of the Sprinkle principle “underscores the importance of uniform application of the forfeiture rule except in the most compelling of situations.” McLa urin , 235 Ill. 2d at 488. Arguably , only the second exception applies to def endant’s double enhancement argument. McLa

urin notes parenthetically

that in People v. Saldivar , 113 Ill. 2d 256, 266 (1986), the supreme court held that counsel need not “interr upt the judge and point out that he was considering wrong fa ctors in aggravation” in orde r to preserve a sentencing issue f or review because such an objection would “fall on deaf ears.” McLa

urin , 235 Ill. 2d at 488. However, McLa urin also suggests that a defendant must specific ally invoke the Sprinkle principle in order to take advantage of its leniency , which defendant did not do here. McLa urin , 235 Ill. 2d at 4871-08-1536

- 27 -

n.1 (“a d efenda nt who suc cessful ly in

vokes Sprinkle

is not limite d in the sa

me way s as a defenda nt rely ing sole ly on plain-e

rror re view”). Nevertheless, in

the inter est of co mpletene ss, we apply the Sprinkle

principle here and conduct a substantive review of the merits of defendant’s argument as thoug h the error were properly

preserved. Defendant contends that the court improperly considered B.A.’s age, w hich is an element of the crime for which he was convicted, a s an aggravating factor in imposing his 12-y ear sentence. It is well settled that g enerally, a factor that is implicit in the offense for which the defenda nt has bee n convict ed cannot also be

used as a n agg ravatin g fact or in dete rmining his sentence. People v. Phelps , 211 I ll. 2d 1, 11 (2004). The rationale for this prohib ition ag ainst “double enhancement” is based upon the assumption that the leg islature considered the factors inherent in the offense in designating the r ange of punishment. Phelps , 211 Ill. 2d at 12. Defendant relies on People v. White , 11 4 Ill . 2d 61 ( 198 6), in sup por t o f hi s ar gum ent . In White , the supreme court held that because a victim’s ag e is an element of the crime of aggr avated b attery

of a chil d, age

cannot a lso be con sidered

as an aggrava

ting fa ctor in sentencing a defendant for tha t offense. White , 114 Ill. 2d at 66; see also Phelps , 211 Ill. 2d at 12. Defendant argues that the same logic applies where, as here, de fendant was convicted of predatory criminal sexual assault of a child under the age of 13. See 720 I LCS 5/12-14.1(a) (West 2004). At the sentencing hearing, the c ourt referred to B.A. as the “12-year- old” girl more than a dozen times , rarel

y r eferr ing to he r by name. I n many instance s, the cou

rt used B .A.’s ag e to comment on the natu

re of the crime by undersc oring de fendant ’s abuse of a posit ion of tru st,1-08-1536

- 28 -

refuting defenda nt’s cont ention tha t B.A. wa s “like fa

mily” to him, a

nd explaini

ng that s ex with a 12-yea r-old girl could not be a “misunderstanding,” a s defendant maintained. Nevertheless, at one point, the cour

t noted tha

t B.A.’s age wa s one of ma

ny “ aggr avati[ng ] circumst

ances” in this case. I n light of that comme

nt, and the

freque ncy with which the cour

t invoked her age , we must conclude that, under White , the circuit court improperly considered the victim’s age as an aggravating f

actor in sentencing. See White , 114 Ill. 2d at 66. Howeve r, as White went on to explain, reliance on an improper factor in aggravation does not require that we remand for rese ntencing. White , 114 I ll. 2d at 66 -67. I mproper double enhancement occurs only if consideration of that factor results in a “ ‘harshe r sentence than might otherwise have been imposed.’ ” Phelps , 211 Ill . 2d at 11-12 , quot ing People v. Gonzalez , 151 Ill. 2d 79, 83-84 (1992). Thus, if it appears f rom the record that the weight placed on the improperly-conside

red factor was so insignificant that it did not result in a gr eater sentence, then we need not remand for resentenc ing. White , 114 Ill . 2d at 67, ci ting People v. Bourke , 96 Ill. 2d 327, 332 (1983). Predatory c

riminal sexual assault of a child is a Class X felony. 720 I LCS 5/12- 14 .1 (b )( 1) (W es t 2 00 4) . A t t he ti me of se nt en ci ng in th is ca se , t he of fe ns e w as pu ni sh ab le by 6 to 30 years’ imprisonment, with the possibility that a court could impose an extended term sentenc e of 30 to 6 0 ye ars’s imprisonmen t. (720 I LCS 5/1 2-14.1(b )(1) (We st 2004)) ; 730 ILCS 5/5-5-3.2(c) (West 2004) (the court may impose an extended term sentence “upon any offender who was convicted of *** predatory criminal sexual assault of a child *** where the victim was under 18 yea

rs of age at the time of the commission of the offense ); 730 IL CS 5/5-8-2(a)(2)1-08-1536

- 29 -

(West 2004) (“for a Class X felony , [an extended-]term [sentence] shall be not less than 30 years and not more than 60 ye ars). Defendant, who was 18 y ears old at the time of the assault on B.A., had been c onvicted of three felony

offenses in as many

years. I n fact, defendant was serving a three-year probation sentence at the time that he committed the instant offense. Both of these circumstances by themselve s constitut

e statutor y a ggra vating f actors. 730 I LCS 5/5 -5-3.2( a)(3), (a)(12 ) (West 2004). Moreover, the court noted that defendant pre viously served 194 day

s in an adult prison on his first conviction, which “apparently didn’t phase [him] in the slightest.” Additionally, the court found that defendant display ed no remorse for his actions, calling him “insensitive” for suggesting that the sexual assault of B.A. wa s a “misunderstanding.” The court also noted that defend ant, a s the f

ather o f B.A.’ s neph ew, was in a po siti on of t rust, and th at he t ook ad vanta ge of that position with B.A. in her own home. Defense counsel did not arg ue that any statutory mitigating factors applied here, a nd the court cited none. The court recog nized defendant’s difficult upbringing, but found that that did not “condone” the cr ime or minimize the effect that the assault would have on B.A. in the future. As in White , the record in this case disclosed the presence of two statutory aggravating factors and the absence of any mitigating factors. See White , 1 14 Ill . 2 d a t 6 7- 68 . A dd it io na ll y, the court here acknowledge d the defendant’s lack of remorse. As a result of these findings, the court sentenced defendant to 12 y ears’ imprisonment, rather than the 30 or 60 y ears for which he was eligible. Thus, we find that the weight plac ed on the improperly c onsidered factor of the victim’s age did not result in a “harsher sentenc e than might otherwise have been imposed.”1-08-1536

- 30 -

Phelps , 211 Ill. 2d at 11-12. Therefor e, as in White , we decline to remand the matter for resentencing. See White , 114 Ill. 2d at 67-68. For the foregoing r

easons, we affirm defendant’s conviction and sentence. Affirmed. CUNNINGHAM and KARNEZIS, JJ., concur.REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT

_________________________________________________________________ THE PEOP LE OF THE STAT E OF ILLINO IS,

Plaintiff-Appellee,

v. CORDELLO FREEMAN,

Defendant-Appellant.

________________________________________________________________ No. 1-08-1536 Appellate

Court of Ill

inois First District, Second Division Filed: September 28, 2010

_________________________________________________________________ PRESIDING JUSTICE THEIS delivered the opinion of the court.

Cunningham and Karnezis, JJ., concur.

_________________________________________________________________

Appeal from the Circuit Court of Cook County Honorable S tanley J. S acks, Judge Presid ing

_______________________________________________________________ __ For PLAI NTIFF- Anita A lvarez, Cook C ounty S tate’s Attorney APPELLEE Alan J. Sp ellberg, Assis tant State’s Attorney Ma ry P. Needh am , Assistant State’ s Attorney Mikah Soliunas, Assistant State’s Attorney Richard J. Daley Cent er, Room 309 Chicago, Il li nois 60602 For DEFENDANT- Micha el J. Pell etier, State App ellate Defend er APPELLANT: Brian M cNeil, Assist ant Ap pellate Defender Off ice of the State Appellate Defend er 203 N. LaSall e Str eet , 24t h Floor Chicago, Il li nois 60601