People v. Phemister

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2026 IL App (5th) 250027-U
NO. 5-25-0027
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Williamson County.
)
v. ) No. 17-CF-250
)
MARK L. PHEMISTER, ) Honorable
) Michelle M. Schafer,
Defendant-Appellant. ) Judge, presiding.
______________________________________________________________________________
JUSTICE VAUGHAN delivered the judgment of the court.
Justices Sholar and Bollinger concurred in the judgment.
ORDER
¶ 1 Held: Defendant’s sentence is affirmed where the trial court properly considered the
aggravating and mitigating evidence.
¶ 2 Defendant, Mark L. Phemister, appeals the trial court’s six-year sentence in the Illinois
Department of Corrections (IDOC), after pleading guilty to aggravated criminal sexual abuse. On
appeal, he contends the court failed to sufficiently consider the mitigating evidence. For the
following reasons, we affirm the sentence.
¶ 3 I. BACKGROUND
¶ 4 On May 4, 2017, defendant was charged, by information, with one count of criminal sexual
assault (count I), a Class 1 felony, in violation of section 11-1.20(a)(1) of the Criminal Code of
2012 (Code) (720 ILCS 5/11-1.20(a)(1) (West 2016)), for placing his finger in the sexual organ of
NOTICE
This order was filed under
Supreme Court Rule 23 and is
not precedent except in the
limited circumstances allowed
under Rule 23(e)(1).
NOTICE
Decision filed 10/14/26. The
text of this decision may be
changed or corrected prior to
the filing of a Petition for
Rehearing or the disposition of
the same.

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K.P., and one count of aggravated criminal sexual abuse (count II), a Class 2 felony, in violation
of section 11-1.60(b) of the Code (id. § 11-1.60(b)), for placing an object on K.P.’s sex organ,
when K.P. was under the age of 18, for defendant’s own sexual gratification. On May 25, 2017,
defendant was charged with predatory criminal sexual assault of a child (count III), a Class X
felony, in violation of section 11-1.40(a)(1) of the Code (id. § 11-1.40(a)(1)), for placing his finger
on K.P.’s sex organ when she was under the age of 13.
¶ 5 On February 20, 2020, a sexual offender evaluation (SOE) performed by Linda Stover was
filed. Stover’s report revealed that defendant was 59 years old, was previously married for two and
half years, and had two biological children born in 1994 and 1997, along with three stepchildren.
One of his stepchildren died in a car accident six months earlier. Defendant resided in assisted
living, and had difficulty taking care of himself, due to a motorcycle accident in 2010 which broke
his back, ribs, and legs. Defendant was not physically, emotionally, or sexually abused as a child.
His parents were divorced. He graduated high school in 1979 and stated he had dyslexia. He lived
primarily in Marion, Illinois, and after graduating high school in 1979, he moved to Chicago and
became a carpenter. The defendant denied the charges, stating he did know why his daughter, K.P.,
accused him of the charges filed.
¶ 6 The report revealed that defendant attempted suicide in 2000 following his divorce and was
admitted to a mental facility in Anna, Illinois. Following his release, defendant was admitted to
Cornerstone. He denied any thoughts of harming himself or anyone else at the time of the
evaluation. He began drinking alcohol when he was 16 and was a binge drinker but had no legal
trouble related thereto. He also tried marijuana when he was in high school. He neither drank
alcohol nor smoked marijuana for the past three years but stated he had “tried everything there is
at least once during his wild and crazy life.”

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¶ 7 The report also revealed that defendant was currently in a wheelchair. He had two rods in
his back to hold it together and broke his pelvis, ribs, leg, arm, and hand in the motorcycle accident.
He stated he was a paraplegic from the waist down but could walk with a walker about 40 feet and
was able to drive. Defendant had no criminal history other than the pending charges.
¶ 8 Following numerous assessments, Stover determined that defendant had no issues with
depression, deviant sexual fantasies, social avoidance and distress, substance abuse, or anger
management. He did have issues with anxiety and cognitive distortions. He scored a minus 1 on
the Static-99R which gave him a 1.9% five-year sexual recidivism risk. This was considered Level
II, and below average risk. Stover opined that defendant would do well in a community-based
treatment program, one of which was near his current residence.
¶ 9 On September 5, 2023, the State moved to dismiss counts I and III. The court granted the
motion on September 6, 2023. On September 8, 2023, defendant pled guilty to count II. When
questioned by the court, defendant agreed the crime had a potential sentence of three to seven years
in IDOC, mandatory supervised release of one year, a fine up to $25,000, and mandatory sex
offender registration. The court noted this was an open plea and ordered a presentence
investigation (PSI) and an SOE. The parties advised the court that the SOE was previously
performed on February 20, 2020, and therefore, only an update was needed.
¶ 10 The PSI was filed on November 30, 2023, and confirmed no adult criminal history prior to
the charges filed in the current case. Defendant’s family history was similar to that set forth in the
SOE. His GPA when he graduated from high school was 1.382. Defendant was disabled from a
motorcycle accident in 2010 and received Social Security supplemental income. He was diagnosed
with incomplete paraplegia and, since the injury, used a wheelchair. Prior to his accident, he
worked as a carpenter. The PSI noted that defendant attempted suicide and was admitted to Choate

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Mental Health, but the facility stated they had no record of defendant. Defendant admitted to past
use of THC and methamphetamines, using the former in high school and the latter in the 1990s.
He began to abuse alcohol following his divorce and also used cocaine. Defendant stated that he
received substance abuse treatment in 2000 in Marion, but the report indicated that the facility had
no records of defendant receiving treatment at the facility. The PSI noted it was waiting for another
SOE performed at Counseling for Change, LLC. The PSI recommended facilities that would be
beneficial to defendant if he received a sentence for probation. Attached to the PSI were copies of
defendant’s high school grades, documentation from the Social Security Administration, insurance
documentation approving defendant for home healthcare services, and his medical records.
¶ 11 An amended PSI was filed on May 2, 2024. The amendment was to include the SOE
performed by Daniel Selock of Counseling for Change, LLC, in 2024. Selock’s SOE confirmed
the prior family history, medical history, and defendant’s current wheelchair-bound status
following his motorcycle accident. However, at this evaluation, defendant stated his home life
growing up was “not so good.” Selock reviewed documentation from the Williamson County
Sheriff’s Department that included an interview between a detective and the victim, K.P., when
she was 19 years old. K.P. advised the detective that defendant sexually assaulted her
approximately 50 times from ages 6 to 16 and described the assaults. K.P. further reported that one
of her stepsisters had also been sexually assaulted by defendant when she was under the age of 16
and that defendant “like to touch her friends” when they were in seventh and eighth grade. She
described those encounters and stated they ended when the friends became uncomfortable and told
defendant to stop. The memorandum further addressed defendant’s interview in which he told the
detective, “about rubbing [K.P.’s] back and maybe getting lower” and blowing on her stomach
“and maybe got a little low.” He stated, “his bare hand could have touched [K.P.’s] vagina ***.”

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He told the detective that he did not think K.P. would lie about what happened and “could not
remember if his fingers penetrated [K.P.’s] vagina while he was rubbing her. He stated he did
remember the scrub brush.” Defendant also admitted to sexually assaulting two other girls by
“getting too low.”
¶ 12 Selock’s interview with defendant revealed sexual activity beginning at age 16. Defendant
had hundreds of sexual partners in addition to being married from 1994 to 1996 and a variety of
sexually transmitted diseases (STDs). Defendant admitted to one incident with multiple partners
and one incident in a public forest.
¶ 13 Based on the victim’s statements, Selock opined that defendant had pedophilic disorder.
Selock noted that defendant minimized his sexual acts with K.P. and stated it happened only once.
Defendant further denied any other prior sexual misconduct with minors, despite defendant
admitting other instances in his police interview. Defendant stated the incident with K.P. occurred
after one of her sporting events. He stated that K.P. asked him to rub her back and he did but
“moved his hands lower and lower, rubbed her butt, and he put his hand(s) up between her legs to
her vagina.” He could not provide a date for the incident. He denied there being other victims, was
disappointed in himself, but did not know of anything about him that needed improvement.
¶ 14 Selock administered numerous assessments, and after considering defendant’s interview
and reviewing the results of the assessment, stated that defendant displayed criminogenic needs of
anti-social attitudes, pro-criminal peers, a shortage of pro-social peers, a history of anti-social
behavior, low levels of self-control, and regular use of alcohol and drugs. The diagnoses included
alcohol use disorder, high level, major depressive disorder, and pedophilic disorder if the victim’s
report was true. Selock opined that based on all the information provided by assessment, review
of reports, and his interview that defendant was at moderate-high level of risk to reoffend. He

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further opined that without treatment defendant was high risk to sexually reoffend and noted that
defendant’s admission of guilt was “guarded and minimal.” He recommended sex offender
treatment in a residential facility and not outpatient in the community, continued assessment of
substance abuse treatment, and a safety plan to prevent defendant from being around minor
children, stating defendant was “not safe to be in their company by himself or to be their
caregiver.”
¶ 15 Defendant’s sentencing hearing was held on September 19, 2024. The only changes to the
PSI were to indicate the correct mother of the victim and that defendant’s current income was from
Social Security. The parties further advised the court that Selock’s report indicated that defendant
pled guilty to criminal sexual assault with force, which was a Class 1 felony, instead of aggravated
criminal sexual abuse, which was a Class 2 felony. Defense counsel also submitted medical reports
substantiating the requested continuances of the sentencing hearing and contained the basis of
defendant’s most recent needs for medical treatment.
¶ 16 The State advised the court that it had no witnesses but asked the court to consider the PSI
and the sex offender evaluations. Defense counsel called Linda Stover to provide testimony. Stover
stated that she ran a specialized practice for treatment of sexual offenders as well as victims. She
had been evaluating or treating sex offenders for 35 years.
¶ 17 Stover explained that numerous evaluation tools existed, but the Static 99-R was generally
used every time. She used a holistic approach and used tools to determine mental health, substance
abuse, and anger management. She also considered the family dynamic, relationship skills, and
employment. As to the Static 99-R, defendant scored a minus 1, which was a 1.9% risk of
recidivism over a five-year period. She stated that was a below-average risk. She agreed that her
evaluation was performed before defendant pled guilty and stated that the plea reinforced her

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conclusions because admission put a person way ahead of the curve. Stover testified that
determining whether a person could be safely managed in the community was not an exact science,
but she believed defendant belonged in the regressed offender category that would be amenable to
treatment.
¶ 18 On cross-examination, Stover agreed that at the time of her evaluation, defendant denied
molesting K.P., and it was nearly three and a half years later before he admitted it. She also agreed
that defendant told her that he could walk 40 feet with a walker and could drive a car. Stover agreed
that the Inventory of Offender Risk, Needs, and Strength (IORNS) testing revealed irresponsibility,
manipulativeness, anger detachment, relational problems, hostility, and negative friends. Stover
further agreed that during the Abel and Becker Cognition Scale testing, defendant “agreed” with
each of the following statements: (1) that if a person is attracted to sex with children, he or she
should solve that problem themselves and not talk to professionals; (2) that sex between a 13-year-
old or younger and an adult causes the child no emotional problems; and (3) children do not tell
others about having sex with a parent or other adult because they like it and want it to continue.
¶ 19 On redirect, Stover explained that in the IORNS testing, the questions posed by the State
were from the “risk” and “needs” section of the testing. She stated those were treatment issues.
She could not recall any of defendant’s strengths but stated they would be in the report. As to the
Abel and Becker testing, she stated that they wanted the participants to be honest so cognitive
distortions could be recognized and treated. She believed defendant was honest during his testing,
but she knew there were some underlying issues in which he was not “being real truthful” and
agreed he was still in denial at that point. She also agreed that there had been no allegations made
of this type of criminal behavior against defendant since 2011.

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¶ 20 Following Stover’s testimony, K.P. read a victim impact statement. She stated that her
trauma and abuse began when she was 6 years old and lasted until she was 16. She stated that she
was silent during that time because of fear and shame. She thought she did something wrong to
deserve this and was extremely embarrassed. She stated that she told her sister about the incidents
after her sister gave birth to a little girl because she wanted to protect her family and did not want
it to happen to her niece. She provided details of the encounters that occurred personally as well
as when she had friends with her at his house. She stated that her grades suffered and she had to
attend a special school in order to graduate on time. She had to get tested for STDs and hepatitis
C and had bladder control issues due to the incidents. She also struggled with alcohol and self-
harm. She stated that she could not continue with counseling because it was too costly but still had
nightmares. She asked the court to provide the maximum possible sentence and requested financial
assistance with her future therapy. She also stated that she wished to change her name.
¶ 21 The State argued that defendant pled guilty but there were no mitigating factors to consider.
More specifically, the State argued that defendant’s conduct caused physical and emotional harm
to the victim. It then read each statutory mitigating factor and stated why it did not apply or was
not present. The State then went through each aggravating factor, noting that defendant’s action
caused or threatened serious harm because K.P.’s life was shattered. The State further argued that
the sentence was necessary to deter others from committing the same crime and asked for the most
severe sentence possible as a deterrent to others who prey on helpless children. The State also
argued that defendant held a position of trust or supervision as K.P.’s father. The State addressed
the SOEs, noting the hope for treatment in the first and the minimization of culpability in the
second. It also noted that defendant could walk and drive a car, stating that nothing about
defendant’s physical condition prevented a sentence in the IDOC. The State argued that given the

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findings in the second SOE of a likelihood of recidivism that probation should not be provided due
to admitted statements of substance abuse, stating probation would deprecate the seriousness of
the crime and would be inconsistent with justice. The State requested the court sentence defendant
to seven years in the IDOC and pay restitution to K.P. so she could obtain counseling in the future.
¶ 22 Defense counsel argued that defendant pled guilty and took responsibility for his actions,
which was a mitigating factor the court could consider. Counsel further argued that the last
historical act occurred in 2011 and no further allegations of criminal behavior had occurred since
the crime was reported in 2015. Counsel argued that defendant was not a danger to the public and
had no previous adult criminal record. As a child, his only crime was breaking into the VFW to
steal alcohol and argued that the lack of continued criminal acts was also evidence of mitigation.
Counsel argued that defendant’s ability to walk was unlikely due to his deteriorated physical ability
since completing therapy and stated that defendant could not walk unassisted and primarily used
a wheelchair. Counsel further argued that defendant had no control over his bladder or bowels,
used a catheter for urination, and was currently undergoing treatment for a mandibular tumor that
was benign. Counsel argued that a sentence in the IDOC “would be akin to a death sentence”
because if became known that he was a sex offender he would not be able to protect himself
because he was in a wheelchair. Counsel further argued that because defendant admitted his guilt,
he was already past the first step in treatment and scored a -1 on the Static 99-R, which qualified
as a low risk to reoffend. Finally, counsel argued that the maximum sentence, based on the Truth
in Sentencing Act, confirmed defendant would come back into society, but if he went to the IDOC,
he would not receive the sex offender treatment he needed to reenter society. Counsel requested
the court provide a sentence of probation and fashion the sentence in a manner that protected the
community and did not deprecate the seriousness of the crime.

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¶ 23 Defendant’s statement in allocution was provided in writing. It provided an apology to K.P.
and stated that he never meant to hurt or harm her in any way. He asked for K.P.’s forgiveness and
a future relationship. He stated that he cared about her and hoped she was doing well. Thereafter,
the court took a brief recess to review the points raised by the parties in the SOEs.
¶ 24 Upon return, the court addressed the aggravating and mitigating factors as well as the
different recommendations in the SOEs, the testimony provided, the victim impact statement, the
PSI, the factual basis, and the fact that defendant pled guilty. The court also addressed defendant’s
lack of criminal history and his medical documentation. As to the latter, the court noted that
defendant did not argue that incarceration would cause defendant’s medical condition to suffer but
instead claimed that defendant would not be able to protect himself from other inmates. The court
found that defendant’s conduct caused serious mental harm based on the victim’s impact
statement, and weighed “very heavily” in the court’s consideration of the proper sentence to
impose. The court also noted the factors in aggravation for deterrence and defendant’s position of
trust in that he was the victim’s father.
¶ 25 The court also addressed the contrary conclusions by the SOEs with one finding defendant
was unlikely to reoffend and the other finding he was. The court noted that the IORNS findings
during both tests were “extremely similar” despite the three-and-a-half-year time difference. It
found the 2024 evaluation contained additional information and further noted that while defendant
had not acknowledged fault in 2020, in 2024, after pleading guilty, Dr. Selock still felt that
defendant did not take full responsibility of his actions. Based on those considerations, the court
sentenced defendant to six years in the IDOC, one year mandatory supervised release, credit for
time served in jail, submission of DNA, and registration as a sex offender for the remainder of his
life. The court also applied defendant’s $1,000 bond as counseling restitution for the victim.

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¶ 26 On September 24, 2024, defense counsel moved for reconsideration of defendant’s
sentence. Therein, counsel alleged that the court failed to give consideration to factors in mitigation
related to defendant’s character and attitude that indicated he was unlikely to commit another crime
(730 ILCS 5/5-5-3.1(a)(9) (West 2024)), defendant’s likelihood to comply with terms of probation
(id. § 5-5-3.1(a)(10)), and endangerment of defendant’s medical condition (id. § 5-5-3.1(a)(12)).
The pleading requested a term of probation including participation in sex offender treatment.
¶ 27 The motion to reconsider was heard on January 16, 2025, and defense counsel filed a Rule
604(d) certificate (Ill. S. Ct. R. 604(d) (eff. Apr. 15, 2024)). Following argument, the court stated
that it considered the mitigating and aggravating factors, gave them appropriate weight at the time
of sentencing, and denied the motion. Defendant timely appealed.
¶ 28 II. ANALYSIS
¶ 29 On appeal, defendant argues that the court abused its discretion in sentencing him to six
years in the IDOC. In support, he argues that the sentence failed to fulfill the court’s obligation of
rehabilitation where the SOE found him suitable for community-based treatment. He further argues
that the court failed to sufficiently weigh factors in mitigation including his age (64 years old), his
“lack of prior criminal history, and a myriad of health problems that include his confinement to a
wheelchair *** and on-going treatment to remove a tumor” from his jaw. The State disagrees and
requests affirmation of the sentence.
¶ 30 “A reviewing court may not alter a defendant’s sentence absent an abuse of discretion by
the trial court.” People v. Alexander, 239 Ill. 2d 205, 212 (2010). An abuse of discretion occurs if
the trial court imposes a sentence that is greatly at variance with the spirit and purpose of the law
or manifestly disproportionate to the nature of the offense. Id. “Accordingly, a constitutional
sentence, devoid of error and resulting from a trial judge’s proper exercise of discretion, shall be

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affirmed on review.” People v. Webster, 2023 IL 128428, ¶ 32. A sentence that lies within the
statutory range is presumed appropriate and we will only reverse that sentence if it is “greatly at
variance with the spirit and purpose of the law or manifestly disproportionate to the nature of the
offense.” People v. Fern, 189 Ill. 2d 48, 54 (1999).
¶ 31 In determining an appropriate sentence, the trial court is required to consider the relevant
mitigating and aggravating factors (see People v. Palmer, 162 Ill. 2d 465, 483-84 (1994)) “as well
as the nature and circumstances of the crime and of defendant’s conduct in the commission of it.”
People v. Quintana, 332 Ill. App. 3d 96, 109 (2002). The court is not required to weigh mitigating
factors more heavily than aggravating factors. See People v. Weiser, 2013 IL App (5th) 120055,
¶ 32. Nor must the court “give greater weight to mitigating factors than to the seriousness of the
offense ***.” People v. Harmon, 2015 IL App (1st) 122345, ¶ 123. The seriousness of the crime
is the most important factor for the trial court to consider. Id.
¶ 32 Here, defendant concedes that his sexual misconduct constituted a serious offense and
acknowledges that the victim advised the court that she was abused by defendant “multiple times
between the ages of 6 and 16.” He argues, however, that the facts do not warrant a sentence near
the maximum. While he claims that the “evidence in mitigation and the objective of rehabilitation
must preclude a near-maximum sentence,” a court is not required to provide greater weight to
mitigating factors than the seriousness of the crime. Id.
¶ 33 Defendant contends that the trial court failed to adequately consider his character and
attitude that indicated he was unlikely to commit another crime, relying on the fact that he had
only minor traffic infractions and one juvenile incident in his past, all of which was consistent with
a lack of criminal propensity. However, such contention has little merit when considered with
K.P.’s statement that defendant’s abuse occurred over a 10-year period. Regardless, it is

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undisputed that the trial court stated that it considered the “character and attitude of the Defendant.”
As such, defendant’s argument is simply a request that we reweigh the evidence, which is not our
purpose. Alexander, 239 Ill. 2d at 213 (“Consequently, the reviewing court must not substitute its
judgment for that of the trial court merely because it would have weighed these factors
differently.”).
¶ 34 Defendant also relies on Stover’s SOE report which opined that defendant was a low risk
to reoffend and would do well in a community-based treatment program. He further contends that
while the more recent SOE assessed him as a moderate-high risk to reoffend, the risk factors were
lowered due to his confinement in a wheelchair, his need for medical treatment for his jaw, and
his age. However, the court acknowledged defendant’s physical disabilities, including his medical
records, when rendering its sentence. It also addressed the differences in the SOE reports, noting
that defendant had not yet acknowledged fault when the 2020 SOE was prepared but had pled
guilty to the charge when the 2024 SOE was performed. The court further noted Selock’s opinion
that defendant continued to minimize the incident and that, even after the guilty plea, defendant
did not take full responsibility of his actions. It is undisputed that the trial court was aware of both
SOE reports, listened to Linda Stover’s testimony at the sentencing hearing, and reviewed both of
the reports prior to issuing its sentence. As such, once again, defendant’s argument is merely a
request that this court reweigh the evidence, which we must not do. Id.
¶ 35 Defendant also contends the trial court failed to consider the mitigating factor that he was
likely to comply with his probation, noting that he was free on bond from June 2017 to September
2024. Defendant argues that he engaged in no criminal activity and complied with the terms of
bail during that period. While admirable, the court was well aware of defendant’s lack of criminal
behavior throughout the duration of the case. It also heard Linda Stover’s testimony opining that

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defendant’s rehabilitative potential was likely given his admission of guilt and “regressed”
classification. However, rehabilitative potential is not entitled to greater weight than seriousness
of the offense. People v. Hilliard, 2023 IL 128186, ¶ 40. As acknowledged by defendant, the crime
was quite serious. Further, the court considered a sentence of probation but found that “a sentence
of probation or conditional discharge would deprecate the very seriousness of the crime committed
and would be inconsistent with the ends of justice.” As there is no dispute that the court considered
the issue, defendant’s request that we reweigh the evidence must be denied.
¶ 36 Finally, defendant argues that the trial court failed to adequately consider the fact that
imprisonment would endanger his medical condition due to his confinement in a wheelchair, his
lack of control over his bowels and bladder, his jaw tumor, and the medical treatment to reconstruct
his jaw. He contends that his conditions require ongoing medical assistance, are potentially life-
threatening, and would be better treated in a community-based setting. However, the court noted
at the sentencing hearing that defense counsel’s argument was limited to defendant’s inability “to
protect himself if he is sentenced,” not that incarceration would worsen his current physical
condition. Our review of the record reveals that the trial court was correct in finding no “evidence
of that.” As there is no evidence in the record that defendant’s incarceration would worsen his
physical disabilities, we find no merit in defendant’s argument.
¶ 37 III. CONCLUSION
¶ 38 For the foregoing reasons, we affirm defendant’s sentence.
¶ 39 Affirmed.

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