Appeal from the Circuit Court of Jefferson County. No. 01-CF-169. Honorable Terry H. Gamber, Judge, presiding.
The opinion of the court was delivered by: Justice Kuehn
Following a plea of guilty to criminal sexual assault, Kelly Alexander filed a motion seeking a declaration from the trial court that the statute under which he was to be sentenced was unconstitutional because it failed to provide probation as a sentencing option. The trial court denied Alexander's motion and sentenced him to four years in the Illinois Department of Corrections. Thereafter, Alexander filed a motion to reconsider based on the same grounds and asked the trial court to reduce his sentence accordingly. The trial court denied that motion as well and Alexander now appeals. We affirm.
 On March 22, 2001, the State charged Alexander with the Class 1 felony of criminal sexual assault pursuant to section 12-13 of the Criminal Code of 1961 (720 ILCS 5/12-13 (West 2000)) based on allegations from a 15-year-old girl that Alexander had engaged in sexual intercourse with her in early 2001. The young girl worked for Alexander as a server at a restaurant in Centralia, Illinois. After entering an open plea of guilty in December 2002, Alexander filed a motion to declare the statute under which he would be sentenced unconstitutional and to declare that he was eligible for probation.
In Illinois, a person commits the Class 1 felony of criminal sexual assault if he or she "commits an act of sexual penetration with a victim who was at least 13 years of age but under 18 years of age when the act was committed and the accused was 17 years of age or over and held a position of trust, authority[,] or supervision in relation to the victim." 720 ILCS 5/12-13(a)(4) (West 2000). At the relevant time, section 5-5-3(c)(2)(H) of the Unified Code of Corrections provided that a period of probation was not allowed for criminal sexual assault "except as otherwise provided in subsection (e) of this Section." 730 ILCS 5/5-5-3(c)(2)(H) (West 2000)*fn1. Under subsection (e), probation could be considered only in the following cases:
"In cases where prosecution for criminal sexual assault or aggravated criminal sexual abuse under Section 12-13 or 12-16 of the Criminal Code of 1961 results in conviction of a defendant who was a family member of the victim at the time of the commission of the offense, the court shall consider the safety and welfare of the victim and may impose a sentence of probation ***." (Emphasis added.) 730 ILCS 5/5-5-3(e) (West 2000).
In other words, whether or not a defendant is eligible for probation depends on whether or not he is "a family member of the victim."
On appeal, Alexander contends this sentencing scheme violates the proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, §11), as well as the equal protection and due process clauses of the United States and Illinois Constitutions (U.S. Const., amends. V, XIV; Ill. Const. 1970, art. I, §2). As the party challenging the statute, Alexander bears the burden of establishing the alleged constitutional violation. People v. Johns, 153 Ill. 2d 436, 442, 607 N.E.2d 148, 151 (1992). When considering the constitutionality of a statute, we are not obligated to give deference to the findings or conclusions made by the trial court. Allen v. Woodfield Chevrolet, Inc., 208 Ill. 2d 12, 21, 802 N.E.2d 752, 758 (2003).
We begin our constitutional analysis with the presumption that the statute at issue is constitutional, and we will resolve all reasonable doubts in favor of upholding its validity. People v. La Pointe, 88 Ill. 2d 482, 499, 431 N.E.2d 344, 352 (1981). We also recognize that the legislature has the inherent authority to set the nature and extent of criminal penalties, and we may not interfere unless the challenged penalty is clearly in excess of the very broad and general constitutional limitations available. People ex rel. Carey v. Bentivenga, 83 Ill. 2d 537, 542, 416 N.E.2d 259, 262 (1981).
We address the proportionate penalties clause first. Under the Illinois Constitution, "[a]ll penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship." Ill. Const. 1970, art. I, §11. The constitutional guarantee of proportionate penalties is violated where the penalty prescribed for an offense is greater than the penalty prescribed for a more serious offense. People v. Grano, 286 Ill. App. 3d 278, 295, 676 N.E.2d 248, 262 (1996). There are three separate tests to identify a proportionate penalties violation. People v. Lombardi, 184 Ill. 2d 462, 474, 705 N.E.2d 91, 98 (1998).
First, a penalty violates the proportionate penalties clause if it is cruel, degrading, or so wholly disproportionate to the offense committed that it shocks the moral sense of the community. People v. Hill, 199 Ill. 2d 440, 452, 771 N.E.2d 374, 381 (2002). Second, a penalty is invalid under the proportionate penalties clause where similar offenses are compared and conduct that creates a less serious threat to the public health and safety is punished more severely. Hill, 199 Ill. 2d at 452, 771 N.E.2d at 381. Third, there is a violation of the proportionate penalties clause when identical offenses are given different sentences. Hill, 199 Ill. 2d at 452, 771 N.E.2d at 381.
Alexander argues that sections 5-5-3(c)(2)(H) and (e) of the Unified Code of Corrections (730 ILCS 5/5-5-3(c)(2)(H), (e) (West 2000)) violate the second and third tests set forth above. As to the second test, Alexander points out that section 5-5-3 provides the possibility of probation for a person who has committed incest but prohibits probation for a person who engaged in identical conduct with an unrelated person between the ages of 13 and 18 over whom he exercises authority. Alexander argues that incest presents a more serious threat to the public health and safety than the latter crime and, therefore, should be punished more severely.
As stated above, the United States and Illinois Constitutions provide very broad and general limitations with regard to the nature and extent of criminal penalties. Bentivenga, 83 Ill. 2d at 542, 416 N.E.2d at 262. In this case, the legislature determined that when a certain type of sexual abuse occurs within a family, the offense is probationable. As the appellate court has already found, this distinction was made in an effort to keep the family intact and to minimize the disruption to the other family members. Grano, 286 Ill. App. 3d at 296, 676 N.E.2d at 263. That said, probation is not given in every case, and a defendant being considered for probation still must comply with strict probationary conditions. Nevertheless, probation may be imposed so that if a defendant is a major financial provider for the family, that defendant may be able to continue to do so. In many cases, the victim and other family members would be harmed again without such income. Therefore, providing probation for the sexual abuser of a family member often promotes the welfare of the minor victim. Thus, the distinction within the sentencing statute made for family members is not unconstitutional under the proportionate penalties clause.
Alexander makes a similar argument with regard to the third test-that the sentencing statute treats identical crimes differently depending upon whether the victim and the defendant are members of the same family. Under the statute, a "family member" includes an accused who has resided in the household with the minor continuously for at least 12 months. 730 ILCS 5/5-5-3(e) (West 2000); 720 ILCS 5/12-12(c) (West 2000). Since that "family member" is eligible for probation and a non-family member who has lived within the household for 11 months is ineligible, Alexander argues that the statute fails the third test as well.
We first note that whether someone unrelated to the victim is considered a "family member" or not is irrelevant to this case. Alexander is not a "family member" of his victim under any definition; he was her boss. Thus, Alexander lacks standing to assert that argument. See People v. Rauh, 197 Ill. App. 3d 692, 693, 554 N.E.2d 819, 819-20 (1990) (citing People v. Upton, 114 Ill. 2d 362, 366-67, 500 N.E.2d 943, 945 (1986)); People v. Matkovick, 101 Ill. 2d 268, 277, 461 ...