2023 IL App (2d) 210690
Ill. App. Ct.2023Background
- Defendant Korem M. Johanson was convicted after a bench trial of predatory criminal sexual assault of a child for causing his penis to contact his daughter A.J.’s hand; the victim was under 13.
- After conviction, Johanson moved to be sentenced under aggravated criminal sexual abuse (Class 2) instead of predatory criminal sexual assault of a child (Class X), arguing the proportionate-penalties clause of the Illinois Constitution because the two offenses allegedly have identical elements but very different punishments.
- The trial court denied the motion, reasoning the statutes do not have identical elements: predatory criminal sexual assault requires contact involving a sex organ or anus, while aggravated criminal sexual abuse’s definition of “sexual conduct” (as applied to victims under 13) covers touching or fondling of any part of a child’s body.
- The trial court sentenced Johanson to 16 years’ imprisonment as a Class X offender; he appealed the sentencing ruling.
- The appellate court affirmed, construing the disjunctive statutory definition of “sexual conduct” to mean three distinct alternatives and holding the elements of the two statutes are not identical; thus the harsher Class X penalty does not violate the proportionate-penalties clause.
- The court relied on the objective identical-elements test (comparing statutory elements, not the specific facts of the case) and distinguished contrary appellate authority that had relied on the charging facts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether sentencing Johanson under the Class X predatory-criminal-sexual-assault statute violated the Illinois proportionate-penalties clause because aggravated criminal sexual abuse (Class 2) allegedly has identical elements but a lesser penalty | The State maintained sentencing must be authorized by law and the statutes have different elements; the harsher penalty is lawful | Johanson argued the two statutes have identical elements (the conduct here fits both statutes) so imposing the higher Class X sentence violates the proportionate-penalties clause | Affirmed: statutes do not have identical elements; “sexual conduct” is broader and statutorily disjunctive, so disparate penalties are constitutionally permissible |
Key Cases Cited
- People v. Williams, 2015 IL 117470 (Illinois Supreme Court) (identical-elements proportionality test is objective and compares statutory elements, not case-specific facts)
- People v. Hernandez, 2016 IL 118672 (Illinois Supreme Court) (statutory-element comparison governs proportionate-penalties analysis)
- People v. Ligon, 2016 IL 118023 (Illinois Supreme Court) (same principle: compare elements objectively)
- People v. Blair, 2013 IL 114122 (Illinois Supreme Court) (discusses proportionate-penalties frameworks)
- People v. Kitch, 2019 IL App (3d) 170522 (App. Ct.) (treats “contact” as any touching)
- People v. Coty, 2020 IL 123972 (Illinois Supreme Court) (legislature may impose harsher penalties to address particular harms)