Sentencing; Mandatory 25-year minimum sentence for CSC I; People v Benton; Lifetime sex-offender registration; The Sex Offenders Registration Act (SORA); Lifetime electronic monitoring (LEM); Cruel or unusual punishment; People v Stovall; People v Kiczenski; People v Hallak; People v Lockridge; 10-year departure from the mandatory minimum; Proportionality

The court rejected defendant’s claim that the mandatory minimum sentence for CSC I, lifetime sex-offender registration, and LEM constituted cruel or unusual punishments. And it held that the trial court’s 10-year departure in imposing a 35-year minimum sentence for his CSC I conviction was not disproportionate to the offense and offender. He was also convicted of CSC II and indecent exposure. He first argued “that SORA’s lifetime registration requirement for tier III offenders is facially unconstitutional.” But the court held in Kiczenski “‘that the 2021 SORA does not constitute punishment as applied to’” CSC I offenders. Because he is a CSC I “offender, SORA is not a punishment as applied to him. If a statute can survive any as-applied challenge, then it necessarily follows that it can survive a facial challenge because prevailing on a facial challenge requires a showing ‘that there is no set of circumstances under which the statute is valid.’” As to the LEM requirement, the court rejected defendant’s cruel or unusual punishment argument in Hallak. While the Supreme Court in Lockridge partially reversed Hallak, its analysis as to LEM “was left wholly undisturbed” and remains binding. As to his facial challenge to the 25-year mandatory minimum, the court rejected his argument that “Benton is distinguishable because it involved an as-applied challenge whereas he is bringing a facial challenge.” It again noted that “the existence of any unsuccessful as-applied challenge necessarily defeats any subsequent facial challenge because a facial challenge requires a showing that the statute can never be applied constitutionally.” As to his proportionality argument, the court found the record supported the trial court’s determination that the “10-year departure was proportionate. The [trial] court emphasized the impact that” defendant’s offense had on the victim (AA), “including the loss of her childhood, the impact on her relationships, and the impact on her marriage.” It emphasized his “lack of remorse, his extensive propensity for this type of offense, and the influence these factors have on his potential for rehabilitation. Lack of remorse and low potential for rehabilitation are both appropriate considerations for departure sentences.” The court concluded the trial “court was justified in believing that it was highly unlikely [he] could be rehabilitated, and this belief supported the departure sentence.” Affirmed.