2023 IL App (4th) 220704
Ill. App. Ct.2023Background:
- Defendant Tyler S. Shaw-Sodaro was charged with aggravated criminal sexual abuse for knowingly touching the breasts of A.R., who was 10 at the time; the State relied on a recorded interview (days after the incident) and live testimony.
- No pretrial notice was given that the State would seek an extended-term sentence; defendant was released on bond, later had bond exonerated and spent substantial pretrial time in custody after new charges were filed.
- At trial the prosecutor repeatedly argued in closing that the only way to acquit would be to find the victim was lying; defense counsel did not object but directly addressed the presumption of innocence and burden of proof in his closing.
- The jury convicted; at sentencing the State sought an extended term on two theories: (1) victim under 12 and (2) defendant had a prior Class 1 felony within 10 years when excluding time spent in custody.
- The trial court imposed an extended-term sentence of nine years; defendant appealed raising (a) improper burden-shifting in closing (and ineffective assistance for failure to object), (b) improper extended-term eligibility based on victim age and on calculation excluding pretrial custody (and a related equal-protection claim), and (c) alleged double enhancement by considering victim’s age at sentencing.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Prosecutor’s closing remarks shifted burden to defendant | Prosecutor conceded error but contended remarks were not prejudicial given instructions and overall argument | Comments forced jurors to treat belief in victim as equivalent to meeting reasonable-doubt standard; constitutes plain error or, alternatively, counsel ineffective for not objecting | Court accepted concession of improper comment but found no plain error (neither prong): evidence was not closely balanced, jury instructions and defense closing cured prejudice; counsel’s strategic choice to rebut rather than object was reasonable, so no ineffective-assistance relief |
| Whether victim’s age could support extended-term when charge already enhanced for age | State argued age under 12 could be considered to raise sentence range under §5-5-3.2(b)(3)(i) | Defendant argued using age again at sentencing is double enhancement and unlawful | Court applied People v. Ferguson: age could not be used to justify extended-term eligibility because the underlying offense was already enhanced by age; age therefore not a basis for extended-term eligibility (but may be considered in fashioning sentence within applicable range) |
| Whether "time spent in custody" exclusion for the 10-year recidivism window excludes pretrial detention | State argued statute excludes all "time spent in custody," which includes pretrial detention; excluding that time made defendant within 10 years of prior felony | Defendant argued excluding pretrial custody punishes indigent defendants who cannot post bond and raises equal-protection issues | Court held "time spent in custody" includes pretrial detention; exclusion is consistent with statute's purpose and Robinson; defendant’s equal-protection challenge failed under rational-basis review |
| Whether trial court committed impermissible double enhancement by mentioning victim’s age at sentencing | People noted victim age is relevant to seriousness and sentencing factors; court may consider nature and circumstances of offense | Defendant argued the sentencing court relied on an element of the offense (victim age) as aggravation, producing an improper double enhancement | Court held merely mentioning victim’s age does not automatically constitute improper double enhancement; age is relevant to nature/circumstances and may inform the sentence within the statutory range |
Key Cases Cited
- People v. Banks, 237 Ill. 2d 154 (2010) (prosecutor may not argue that jurors must believe state witnesses were lying to acquit defendant)
- People v. Coleman, 158 Ill. 2d 319 (1994) (distinguishes permissible credibility argument from impermissible burden-shifting)
- People v. Williams, 2022 IL 126918 (2022) (plain-error review of improper closing arguments; prosecutorial comments must be damaging enough to "severely threaten to tip the scales")
- People v. Robinson, 89 Ill. 2d 469 (1982) (statutory purpose of excluding "time spent in custody" is to measure recidivism based on post-custody conduct)
- People v. Ferguson, 132 Ill. 2d 86 (1989) (cannot use victim's age to impose an additional penalty under §5-5-3.2 when the underlying offense already was enhanced by victim's age)
- People v. Macri, 185 Ill. 2d 1 (1998) (proper jury instructions can cure prejudice from improper prosecutorial remarks)