Court of Appeals of Illinois, First District, Fourth Division
Rehearing denied April 27, 2018
from the Circuit Court of Cook County, No. 11-CR-15655; the
Hon. Michele McDowell Pitman, Judge, presiding.
Michael J. Pelletier, Patricia Mysza, and Meredith N. Baron,
of State Appellate Defender's Office, of Chicago, for
Kimberly M. Foxx, State's Attorney, of Chicago (Alan J.
Spellberg, Annette C. Collins, and Mary L. Boland, Assistant
State's Attorneys, of counsel), for the People.
JUSTICE GORDON delivered the judgment of the court, with
opinion. Presiding Justice Burke and Justice McBride
concurred in the judgment and opinion.
1 After a bench trial, defendant Darionte Jones was found
guilty of one count of predatory criminal sexual assault and
sentenced to 10 years in the Illinois Department of
Corrections (IDOC). The conviction stems from the sexual
assault of a 12-year-old victim on August 30, 2011, when
defendant was 17 years old. On appeal, defendant does not
challenge the sufficiency of the evidence against him.
2 Defendant claims (1) that his trial counsel was ineffective
for failing to move to dismiss the charges against him after
the State allegedly failed to bring him to trial within the
period required by section 103-5(a) of the Code of Criminal
Procedure of 1963 (Speedy Trial Act) (725 ILCS 5/103-5(a)
(West 2012)); (2) that, as applied to defendant, the statute
governing predatory criminal sexual assault is harsh and
violates the cruel and unusual punishment clause of the
eighth amendment, as well as the proportionate penalties
clause; and (3) that the trial court abused its discretion by
sentencing defendant to 10 years, in light of the fact that
he was 17 years old at the time of the offense, had only one
prior juvenile adjudication for a nonviolent offense, and
expressed remorse at sentencing.
3 For the following reasons, we affirm his conviction and
5 On this appeal, defendant does not raise any claims
concerning any of the evidence introduced at trial or the
sufficiency of the evidence or any arguments made by the
State concerning the evidence. Thus, we provide below only
the facts needed to understand the claims before us.
6 At trial, the State's evidence showed that defendant,
who was a school friend of the victim's sister, knocked
on the door of the victim's home and the victim let him
in. The 12-year-old victim returned to her bedroom to
continue watching "Sponge Bob" on television when
defendant entered, sat down next to her on the bed, and began
kissing her. After the victim told him to stop, he pushed her
back on the bed, laid on top of her, and pulled down her
pants and underwear. His penis then made contact with her
vagina. When the victim heard the door open, she
observed defendant run into the closet holding his clothes.
When the victim's sister walked into the bedroom, the
sister observed the victim on the bed without pants or
underwear and found defendant in the closet wearing a shirt
but no pants. The sister told him to leave and he did. The
sister then told their mother what happened, and the next day
the mother and sister told the victim's father who took
the victim and her sister to the police station. Three days
after the attack, a nurse examined the victim and observed,
during the genital exam, redness, irritation, and a
microabrasion, which was consistent with sexual assault. A
sexual assault kit was performed and was negative for the
presence of semen.
7 As noted, the trial court found defendant guilty of one
count of predatory criminal sexual assault of a child. Prior
to announcing the verdict, the trial court made specific
findings of fact, including that "the State has not
presented enough evidence for proof beyond a reasonable
doubt" (1) that "the defendant committed an
intrusion of his penis into the vagina" of the victim,
(2) that "there was any force" or threat of force
"in this matter," or (3) that "there was
unlawful restraint." The trial court did find that
"the State has proven beyond a reasonable doubt that
there was contact between the defendant's penis and [the
victim's] vagina," and "that the defendant knew
that the victim *** was under 13 years of age." As a
result, the court found "there will be a finding of
guilty with regards to *** contact between the penis and the
vagina of [the victim] with her being under 13 years of
8 Defendant filed a posttrial motion for a new trial that
raised claims concerning the sufficiency of the evidence and
the admissibility of certain pieces of evidence. However, the
posttrial motion did not assert any of the issues raised on
9 At the sentencing on April 9, 2015, the trial court denied
defendant's posttrial motion and then heard factors in
aggravation and mitigation. In mitigation, defense counsel
observed, among other things, that defendant was then
presently 20 years old and the father of a 5-year-old and a
4-year-old. The factors in mitigation included the following
statement by defendant. On appeal, defendant argues that this
statement shows remorse, so we provide it here in full:
"DEFENDANT: I'm here today because, you know I made
some wrong actions down the line and I do take full
responsibility of everything that has happened. I just ask
that you have lenience because I do have two children.
I made a mistake that should never have been made. I am sorry
for what I did. Sorry for what other people have been
through. That's it."
10 After listening to defendant's statement, the trial
court sentenced him to 10 years with IDOC. Since defendant
claims on appeal that the trial court abused its discretion
by sentencing him to 10 years instead of the six-year
minimum, we provide here the trial court's full statement
explaining its reasons for selecting a 10-year sentence:
"THE COURT: All right. Thank you, sir.
Well, this Court having entered a judgment on the finding of
guilt with regards to Count 1, predatory criminal sexual
assault of a child, that being a Class X felony which carries
a mandatory penitentiary sentence of between 6 to 60 years of
incarceration in the Illinois Department of Corrections, I
have considered the facts of this case, all of the matters in
aggravation and mitigation.
The Court has also thoroughly read the Pre-Sentence
Investigation Report noting that the defendant's first
contact with the law was at 13 years of age for a felony
offense of burglary in juvenile court. That was dismissed,
but that's the defendant's first contact with the
Second contact was a residential burglary where [the trial
court] found the defendant guilty-there was a finding of
delinquency for a residential burglary, which is a Class 1
felony. He received five years juvenile probation, 150 hours
of community service. He received some TASC as well.
And a violation of probation was filed in June of 2008 and a
sex evaluation was ordered. And that is State's Exhibit
No. 1, which was prepared for [the trial court] apparently
July 28th of 2008.
The defendant apparently did not comply further with
probation and his juvenile court judge sent him to the
Illinois Department of Corrections as a juvenile. He was
sentenced to IYC, which is the Juvenile Illinois Department
of Corrections. That was in October of 2009.
The State comments about numerous or lengthy criminal
histories. These cases have all been dismissed, so the only
one the Court is acknowledging basically is the residential
burglary where the defendant was found delinquent and sent to
the Illinois Youth Department of Corrections.
This case in which this Court found the defendant guilty of
predatory criminal sexual assault happened in 2011. He was
sent to IYC October 15th of '09. So a little less than
two years after he was sentenced as a juvenile to the
Department of Corrections, he commits this Class X felony
upon a very unsuspecting 12 year old girl who he knew from
the neighborhood, he knew her sister, and he committed an act
of sexual contact with her.
The Court has read the PreSentence Investigation Report. The
defendant does not have any adult criminal history. He has
completed only two years of high school. The defendant has no
job history. He has two children.
The Court finds based upon the aggravation, the mitigation
that this Court has heard, the findings that the Court made,
the Court finds that the following sentence is appropriate in
this matter. This is a Class X felony as indicated where a
sentencing range is between 6 to 60 years.
The Court finds that the sentence that is appropriate for
this matter is a period of incarceration of 10 years in the
Illinois Department of Corrections.
Based upon this sentencing range, based upon this Class X
felony and the facts of this case, the Court does not find
that 6 years is an appropriate sentence in this matter. The
Court does not find that the maximum sentence is appropriate
either. Ten years, which must be served at 85 percent, is an
appropriate sentence for this offense of predatory criminal
observe that 10 years, if served at 85%, is 8½ years.
The trial court then found that "[c]redit for 1, 316
days will be given to the defendant." This credit, if
served at 85%, is over four years. The sentencing on April 9,
2015, was almost three years ago.
¶ 11 Defendant then filed a motion to reconsider his
sentence that claimed, among other things, that his sentence
was "excessive in view of the Defendant's background
and the nature of his participation in the offense."
Before the trial court, defense counsel explained that she
was challenging only the portion of the sentence that
exceeded the minimum of six years. Thus, defendant did not
raise before the trial court an issue that he raises on
appeal, namely, that his conviction should be reduced to a
Class A misdemeanor and that he should be sentenced to less
than a year.
12 With respect to the motion to reconsider sentence, the
following colloquy occurred:
"THE COURT: Do you have a motion to file, counsel?
DEFENSE COUNSEL: Yes, Your Honor. To avoid-
THE COURT: A motion to reconsider?
DEFENSE COUNSEL: Yes. To avoid returning in 30 days, I'm
asking the Court to reconsider the sentence. The same
arguments that I presented in my mitigation regarding the
excessive nature of anything greater than 6 years.
THE COURT: State, your response?
ASSISTANT STATE'S ATTORNEY [(ASA)]: Your Honor, the
sentence is appropriate given the facts.
THE COURT: I'm sorry.
ASA: The sentence is appropriate given the facts.
THE COURT: All right. The defendant's motion to
reconsider sentence is denied. The sentencing range is 6 to
60 years. The Court does not find that the 10-year sentence
is excessive, therefore, counsel your motion is going to be
[Defendant], any questions about your sentence, sir?
Defendant then filed a timely notice of appeal, and this
14 On appeal, defendant claims (1) that his trial counsel was
ineffective for failing to move to dismiss the charges
against him after the State allegedly failed to bring him to
trial within the period required by the Speedy Trial Act (725
ILCS 5/103-5(a) (West 2012)); (2) that, as applied to
defendant, the statute governing predatory criminal sexual
assault is harsh and violates the cruel and unusual
punishment clause of the eighth amendment, as well as the
proportionate penalties clause; and (3) that the trial court
abused its discretion by sentencing defendant to 10 years, in
light of ...