[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
from the Circuit Court of McHenry County, Nos. 13-CF-652,
13-CF-653, 16-CF-832; the Hon. Sharon L. Prather, Judge,
E. Chadd, Thomas A. Lilien, and Steven L. Walker, of State
Appellate Defender's Office, of Elgin, for appellant.
Patrick D. Kenneally, State's Attorney, of Woodstock (
Patrick Delfino, Edward R. Psenicka, and John G. Barrett, of
State's Attorneys Appellate Prosecutor's Office, of
counsel), for the People.
Defendant, Robert Q. Maron, pleaded guilty to two counts of
predatory criminal sexual assault of a child (720 ILCS
5/12-14.1(a)(1), (b) (West 1996)) and one count of aggravated
criminal sexual abuse ( id. § 12-16(c)(1)(i)).
There were three separate victims, each of whom was under age
13. The trial court sentenced defendant to two 14-year
sentences and one 4-year sentence, to run consecutively, for
a total of 32 years.
¶ 2 On
appeal, defendant challenges the admission at the sentencing
hearing of videotaped statements he made to police. At the
sentencing hearing, the State admitted that the statements
were taken in violation of defendant's sixth amendment
right to counsel. The theory was that the statements were
obtained during the course of a separate investigation of an
uncharged offense, concerning a victim who is not part of
this case. The interview occurred, however, while defendant
was in custody for the charged offenses and represented by
counsel for the charged offenses. Defendant received a basic
Miranda warning for the investigation concerning the
uncharged offense. See Miranda v. Arizona, 384 U.S.
436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Despite the
Miranda warning, per People v. Kidd, 129
Ill.2d 432, 453-54, 136 Ill.Dec. 18, 544 N.E.2d 704 (1989),
the State violated defendant's right to counsel in
this case. Once the State charged defendant with the
offenses in this case, the right to counsel
attached to those charged offenses. Also, once defendant had
retained counsel for the charged offenses, the State had an
affirmative duty to honor that relationship, which it
breached when it failed to notify counsel of the interview on
the uncharged offense and instead elicited statements that
would be used against him at sentencing here. (The State
changes its position on appeal to argue that no sixth
amendment violation occurred, but the record does not support
affirming on that new ground.)
Defendant contends that, because the statements were obtained
in violation of his sixth amendment right to counsel, they
should not have been admitted at sentencing under any
circumstances. He acknowledges that evidence obtained in
violation of the fourth amendment may be allowed at
trial for nonsubstantive purposes, such as impeachment, or at
sentencing for substantive purposes, pursuant to the
exclusionary-rule balancing test. See People v.
Rose, 384 Ill.App.3d 937, 942, 323 Ill.Dec. 597, 894
N.E.2d 156 (2008). However, citing Bishop v. Rose,
701 F.2d 1150, 1156-57 (6th Cir. 1983), defendant asserts
that the sixth amendment affords stronger protections than
the fourth amendment as it pertains to the admission of
unlawfully obtained evidence.
¶ 4 We
disagree with defendant's reading of Bishop.
Instead, we determine that Bishop, together with
Kansas v. Ventris, 556 U.S. 586, 590-91, 129 S.Ct.
1841, 173 L.Ed.2d 801 (2009), supports the conclusion that
what matters is not which constitutional guarantee was
violated, the fourth or the sixth, but when and how the
constitutional guarantee was, or could be, violated. If the
introduction of the evidence could itself constitute or
exacerbate the violation, then the evidence is inadmissible.
If, on the other hand, the violation has already occurred and
the purpose of the exclusion would be to deter unlawful
police conduct in the future, then the exclusionary-rule
balancing test applies. Here, the violation occurred when the
police obtained the statements, and the purpose of the
exclusion would be to deter unlawful police conduct in the
future. Therefore, the trial court properly applied the
exclusionary-rule balancing test, and it did not abuse its
discretion in deciding to admit the statements at the
Finally, defendant argues that the trial court relied on an
improper sentencing factor. We disagree. Accordingly, we
¶ 6 I.
This case involves three charged offenses: (1) the predatory
criminal sexual assault of C.D. in that defendant placed his
finger in C.D.'s vagina (No. 13-CF-652); (2) the
predatory criminal sexual assault of J.S. in that defendant
placed his finger in J.S.'s vagina (No. 16-CF-832); and
(3) the aggravated criminal sexual assault of A.A. in that
defendant touched A.A.'s vagina (No. 13-CF-653). Each of
the crimes occurred between 1996 and 1998, and each of the
victims was under age 13. Defendant, who was born in 1968,
was over age 17.
¶ 8 In
2013, while defendant was in custody in McHenry County for
the charged offenses, the Schaumburg Police Department sought
to investigate defendant for the uncharged offense. The
victim was defendant's stepdaughter, who alleged that
defendant placed his finger in her vagina when she was 16
years old in the mid-2000s. She reported that defendant
assaulted her when her mother was in the
hospital, having just given birth to twins (who were fathered
¶ 9 The
McHenry County Sheriff allowed a Schaumburg detective to
interview defendant concerning his stepdaughter's
allegations. The officers did not notify defendant's
retained counsel. The interview was videotaped. Defendant
received a basic Miranda warning, and he signed a
waiver. Defendant confessed to assaulting his stepdaughter.
He claimed that he began giving his stepdaughter an ordinary
muscle massage, "like he would give his wife," when
he entered a dreamlike state. When he realized that his
finger was in his stepdaughter's vagina, he awoke from
his dreamlike state. He knew that he had gone too far, and he
felt remorse. This portion of the interview lasted
approximately three to four minutes.
After defendant confessed to assaulting his stepdaughter, the
Schaumburg detective asked defendant if there was anything
else that defendant "wanted to get off his chest."
Defendant asked the detective if he meant A.A. and C.D., two
of the victims of the charged offenses. The
detective appeared to assent, asking "what
happened?" Defendant proceeded to describe his actions
against A.A. The detective then reminded defendant of C.D.
Defendant responded by describing his actions against C.D.
Defendant again claimed that he had been in a dreamlike state
when he assaulted A.A. and C.D. He did not awake from the
dreamlike state until he realized that he had violated the
girls. He said that he felt remorse. This portion of the
interview lasted approximately two to three minutes.
During the portion of the interview concerning the charged
offenses, the detective asked defendant approximately 20
questions. These ranged from general prompts, such as
providing defendant with a summary and then asking, "Is
that correct?," to specific questions, such as "And
you put your hand where?" Other questions included:
"What was the name?"; "What happened with
that?"; "You want to stress again [that you were]
tired?"; "Tell me if this is correct";
"Did you ever [take out] your penis?"; "Did
you ever anally penetrate?"; "What was that—
same thing? [ i.e., Did you do the same thing to
C.D.?]"; "[Did that occur] in a tent or somewhere
else?"; "Was it planned?"; and "Once you
touched the vagina, did you pull out because you realized it
The stepdaughter's allegations ultimately resulted in
separate charges, pending in another county. In the meantime,
in February 2017, defendant accepted a partially negotiated
plea arrangement and pleaded guilty to the three charged
offenses at issue here. (The terms of the partially
negotiated guilty plea are not in the record.)
¶ 13 In
April 2017, the trial court conducted a sentencing hearing.
The State moved to admit the video of the interview by the
Schaumburg detective. Defense counsel stated that in
preparation for trial he had drafted a motion to suppress the
interview on sixth amendment grounds. However, after counsel
spoke with the State, defendant chose not to go to trial and
instead entered the partially negotiated guilty plea.
The State admitted that defendant's sixth amendment right
to counsel had been violated, stating, "If this matter
had proceeded to trial, it [is] the State's
position that most likely under almost no circumstances could
I think of how that would not have been suppressed."
(Emphasis added.) Despite the violation, the State maintained
that the video was admissible. It cited Rose, 384
Ill.App.3d 937, 323 Ill.Dec. 597, 894 N.E.2d 156, noting
that, there, the sentencing court had allowed evidence that
was obtained in violation of the fourth
amendment, even though that evidence would have been
suppressed at trial. Defendant responded that Rose
was inapposite, because it concerned a fourth amendment, as
opposed to a sixth amendment, violation.
The trial court agreed with the State and admitted the video:
"I would grant that [ Rose ] is factually
distinguishable from this case in that the Rose case
dealt with [a] fourth amendment violation and in this case we
have a sixth amendment violation regarding statements.
However, the reasoning in Rose is well applicable to
this case. The case indicates that the exclusionary rule does
not generally apply to sentencing hearings. Defendant's
objection to the admission of the tape will be
Next, the State submitted victim-impact statements from all
three victims in this case. Two of the victims were present
and read their statements aloud. One of the victims explained
that she had been so innocent at the time of the offense that
it took her years to understand what had happened to her. All
of the victims reported that defendant's actions had
damaged their lives and their psychological well-being.
Cary police detective Susan Ellis testified to her
investigation of the charged offenses. While investigating
the charges, she contacted the police departments in
municipalities where defendant had lived previously. This led
to the discovery of other offenses. Also, defendant himself
told Ellis of an offense he committed against his sister.
Thus, in addition to the three victims at issue in this case,
Ellis learned of four other victims. These victims included
his stepdaughter, two young girls in Rock Falls, and his
12-year-old sister (when he was 16). Additionally, defendant
had child pornography on his computer, and he once physically
harmed his pregnant wife.
Regarding his stepdaughter, and as set forth in the video,
defendant gave her a massage and then inserted his finger
into her vagina. He also hid in her closet, wearing only his
underwear, and he watched through the door's wood slats
as she showered. When she caught him, he told her that he had
only been trying to scare her.
Regarding the young girls in Rock Falls, he engaged in a game
of truth or dare with them. They were 12 or 13 years old. He
dared them to pull down their pants. When they refused, he
spanked them. The incident was reported to the police but did
not result in charges. Defendant explained that he had only
been trying to teach them a lesson, because they had asked
him to disrobe first.
Regarding his sister, defendant had sexual relations with
her. His sister came forward soon after, and defendant was
"shipped off" to a sexual-predator rehabilitation
program in Minnesota. Ellis could not locate the program.
After Ellis interviewed defendant, defendant immediately
called his wife and told her to destroy information on his
computer. The police heard the phone call, because defendant
made the call from the interview room. Officers were able to
obtain a warrant in time to search the home. They obtained
evidence from the computer, including a pornographic image of
an eight-year-old girl in an explicitly sexual position.
There was also a record of an online communication between
defendant and an unknown girl. The girl stated that she was
having sexual intercourse with her father. Defendant replied
that "there should be more girls out there like
Finally, Ellis spoke with defendant's ex-wife, who told
her that defendant once physically hurt her. When she was
pregnant and asleep, defendant fired a taser weapon at her.
She awoke, and defendant laughed and told her that he just
wanted to see what would happen.
The State also submitted presentencing reports, sex-offender
risk-assessment reports, and a psychological evaluation. The
reports showed that defendant had no major psychiatric
illness, though he did have clinically significant levels of
anxiety. Defendant had been sexually abused as a child. The
reports ultimately concluded that defendant was at
moderate-high risk for recidivism, based on "his lack of
empathy for the victims, his lack of responsibility for his
actions, his history of sexual trauma, and instability in his
Defendant did not call any witnesses. The parties presented
their arguments. Part of the State's argument was as
"THE STATE: Your Honor, when sentencing the defendant
today, I think it's very important to keep in mind that
if defendant had committed these offenses a mere three or
four years later, Your Honor really wouldn't have as much
a decision to make today. ...