from the Circuit Court of McHenry County. Nos. 13-CF-652,
13-CF-653 16-CF-832 Honorable Sharon L. Prather, Judge,
JUSTICE JORGENSEN delivered the judgment of the court, with
opinion. Justices McLaren and Bridges concurred in the
judgment and opinion.
1 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 (1966). Despite the
Miranda warning, per People v. Kidd, 129 Ill.2d
432, 453-54 (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.)
3 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
(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
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 (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 sentencing hearing.
5 Finally, defendant argues that the trial court relied on an
improper sentencing factor. We disagree. Accordingly, we
6 I. BACKGROUND
7 This case involves three charged offenses: (1) the
predatory criminal sexual assault of CD. 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 by defendant).
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.
10 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 CD., 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 CD.
Defendant responded by describing his actions against CD.
Defendant again claimed that he had been in a dreamlike state
when he assaulted A.A. and CD. 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.
11 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
CD.?]"; "[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
12 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.
14 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, 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.
15 The trial court agreed with the State and admitted the
"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
16 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
17 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.
18 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.
19 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.
20 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.
21 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
22 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.
23 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 life."
24 Defendant did not call any witnesses. The parties
presented their arguments. Part of the State's argument
was as follows:
"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. That's because in 2000 the
legislature enacted a statute-
DEFENSE COUNSEL: Objection, Your Honor. This is not relevant
for purposes of sentencing. It's before the court as
charged when the violations took place.
THE COURT: Overruled. It's argument, [counsel]. Go
THE STATE: In 2000, the legislature enacted a statute
indicating that an individual who is convicted of two
separate incidents of predatory criminal sexual assault
receives a sentence of natural life in prison. We
wouldn't have to sit here hearing about all these
stories, reading the written statements, listening to the
interview, going through the victim impact statements. We
wouldn't have to do that because Your Honor wouldn't
have the discretion.
When the legislature makes a law, think about it. When
they're thinking about punishment, when they're
thinking about laws, they're taking lots of things into
consideration. They're taking damage to the public.
They're taking the harm to the victim. They're taking
the likelihood that the individual would commit the offense
again. After all that consideration, after all those things,
the legislature said predatory criminal sexual assault, one
of the worst crimes there is, and a person who does it more
than once should never be released from prison. He is a
danger to society, and the world is better with him inside.
Your Honor, I'm not saying that because I believe that
this is the law that applies here today. ...