¹ The defendant is a transgender woman. As such, female pronouns will be used to refer to the defendant in this opinion. 2022 IL App (2d) 200640 ¶2 I. BACKGROUND ¶3 On May 23, 2018, the defendant was charged by indictment with one count of predatory criminal sexual assault of a child (id.). The indictment alleged that, in 2010, the defendant, who was 17 years of age or over, committed an act of sexual penetration with A.B., a minor child under the age of 13 years, in that the defendant placed her mouth on the sex organ of A.B. ¶4 The defendant waived her right to a jury trial, and on January 27, 2020, the matter proceeded to a bench trial. The defendant was represented by the public defender. In opening statements, the State argued that the evidence would show that, in 2010, the defendant committed an act of predatory criminal sexual assault against her stepdaughter, A.B. Specifically, one evening when A.B. was about 10 years old, A.B. was left home alone with the defendant and one other sibling, her sister H.B. After H.B. was put to bed, the defendant allowed A.B. to try her marijuana pipe and take a sip of an alcoholic beverage. After this, the two went up to A.B.’s bedroom, as it was A.B.’s bedtime. After A.B. crawled into bed, the defendant removed A.B.’s pajama pants and pulled down her underwear. The defendant then placed her mouth on A.B.’s vagina. ¶5 Defense counsel’s opening statement began, “[t]he State’s Attorney is correct, this incident happened in 2010.” Defense counsel further explained that the defendant herself actually brought the case to the attention of medical staff, a social worker, and a detective in 2017. Defense counsel stated that the trial court would hear why the defendant disclosed the information and what the defendant wanted to do with the information. Defense counsel asserted that, after the trial court heard what happened in 2010, the State would not be able to prove the defendant guilty of predatory criminal sexual assault. ¶6 A.B. testified that she was born in the spring of 2001. She had two older siblings and four younger siblings. A.B. testified that the defendant was her stepfather. They lived in various places - 10 - 2022 IL App (2d) 200640 exception is so rare that, in the 30 years since Cronic was decided, our supreme court has found per se ineffectiveness under this exception in only two cases. Id. ¶ 27. ¶ 26 In arguing that counsel was per se ineffective under Cronic, the defendant relies on one of those two cases, People v. Hattery, 109 Ill. 2d 449 (1985). In Hattery, the defendant pleaded not guilty to the murder of a woman and her two children. Id. at 458. In opening statements, the prosecution described the circumstances of the murders. Despite the not guilty plea, defense counsel asserted, in opening statements, that the defendant “did everything” the prosecution stated he did and that he, defense counsel, was “not asking [the jury] to find [the defendant] not guilty.” (Internal quotation marks omitted.) Id. at 458, 464. Further, defense counsel advanced no theory of defense at trial, presented no evidence, and did not make a closing argument. Id. at 459. In holding that defense counsel was per se ineffective, our supreme court emphasized that defense counsel’s concession of guilt in opening statements was unequivocal. Id. at 464. The Hattery court also noted that defense counsel’s trial strategy, which attempted to show that the defendant was guilty of murder but undeserving of the death penalty, was at odds with the defendant’s plea of not guilty. Id. ¶ 27 In the present case, the defendant argues that, as in Hattery, defense counsel was per se ineffective in conceding her guilt during opening statements, failing to conduct meaningful cross- examination of the State’s witnesses or present any evidence in defense, and again conceding guilt and misapplying the law in closing arguments. ¶ 28 The defendant’s contention is without merit, as defense counsel did not fail to subject the State’s case to meaningful adversarial testing. Unlike in Hattery, defense counsel in this case did not unequivocally concede the defendant’s guilt in opening statements. Defense counsel acknowledged, in her opening statement, that “this incident happened in 2010” but did not state - 11 - 2022 IL App (2d) 200640 what specific acts the defendant committed. Further, defense counsel ultimately argued that the prosecution would not be able to prove that the defendant was guilty of predatory criminal sexual assault. This is in stark contrast to the circumstances in Hattery, where defense counsel stated that he was not asking the jury to find the defendant not guilty. ¶ 29 Further, defense counsel in this case did not fail entirely to cross-examine the State’s witnesses or present a defense. The defendant argues that defense counsel did not cross-examine either A.B. or Houghton in such a manner as to cast doubt on their credibility or bolster the defendant’s defense. However, defense counsel questioned A.B. about her marijuana and alcohol use on the day of the incident, implicitly attacking her ability to remember the events at issue. Defense counsel also questioned A.B. about her delayed disclosure of the event, thus challenging her credibility. The defendant argues that such a challenge was fruitless, as it is common for victims of child sex offenses to delay reporting, out of fear or shame. While we agree that attacking A.B.’s credibility on this basis was weak, it does not mean that defense counsel failed to provide meaningful adversarial testing. See People v. Ganus, 148 Ill. 2d 466, 474 (1992) (“A weak or insufficient defense does not indicate ineffectiveness of counsel in a case where a defendant has no defense. *** [I]t would appear that defense counsel used his imagination and resourcefulness to come up with something where he had nothing to go on.”). ¶ 30 While the defendant argues that defense counsel did not effectively cross-examine Houghton, the defendant does not indicate what line of questioning defense counsel failed to pursue. Houghton’s testimony was largely related to what was shown on the recorded interview, which the trial court was able to view. Further, defense counsel elicited testimony from Houghton indicating that he was aware of the content of A.B.’s CAC disclosure statement at the time of the defendant’s interview and counsel then argued in closing that Houghton used that information to - 12 - 2022 IL App (2d) 200640 prompt the defendant’s admission to making physical contact with A.B.’s vagina. The defendant’s argument that defense counsel failed to present a defense is without merit because, at a minimum, defense counsel required the State to put on its case and prove the defendant guilty beyond a reasonable doubt. See Cronic, 466 U.S. at 656 (the Cronic standard is not met where defense counsel holds the State to its burden of proof); Cherry, 2016 IL 118728, ¶ 29 (the Cronic exception applies only when counsel entirely fails to subject the State’s case to meaningful adversarial testing). ¶ 31 The defendant also argues that defense counsel failed to conduct any meaningful adversarial testing because counsel conceded the defendant’s guilt and misapplied the law during closing arguments. Upon our own review of the record, we conclude that defense counsel did not concede the defendant’s guilt. While defense counsel stated, in closing, that the defendant initially disclosed the incident and had no reason to lie during the police interview, defense counsel further argued that the defendant’s initial statement to the police was the truth, that she saw the look of horror on A.B.’s face, stopped herself, and never actually made physical contact with A.B.’s vagina. Defense counsel argued that the defendant admitted to making contact only when prompted by the police and that she did so because she was emotionally distraught and missing her children. Further, defense counsel argued that the defendant’s confession was equivocal in that she stated, “Yeah, maybe there is a kiss, or I don’t know. It was confusing.” ¶ 32 The defendant also asserts that defense counsel had a misunderstanding of the law. Specifically, the defendant asserts that defense counsel was arguing in closing that the evidence was insufficient to prove predatory criminal sexual assault because there was no penetration, only surface-to-surface contact. The defendant mischaracterizes defense counsel’s argument. Defense counsel never argued that the evidence was insufficient because there was no penetration. Rather, - 13 - 2022 IL App (2d) 200640 defense counsel argued that, if the trial court found that there was, in fact, contact between the defendant’s mouth and A.B.’s vagina, then the surface-to surface contact supported a finding of guilt on the lesser included offense of aggravated criminal sexual abuse. The argument was that, since the same alleged conduct satisfied both statutes, the statutes were vague and that a finding of guilt on the lesser offense was appropriate. Although this argument may have been weak, it does not indicate ineffective assistance of counsel. Ganus, 148 Ill. 2d at 474. ¶ 33 In summary, as defense counsel did not concede the defendant’s guilt, cross-examined the witnesses, and argued in closing that the defendant was not guilty, the defendant’s argument that defense counsel failed to conduct any meaningful adversarial testing is without merit. Cf. Hattery, 109 Ill. 2d at 458-59 (no meaningful adversarial testing where defense counsel conceded guilt in opening statement, advanced no theory of defense at trial, presented no evidence, and did not make a closing argument); People v. Morris, 209 Ill. 2d 137, 182-85 (2004), overruled in part on other grounds by People v. Pitman, 211 Ill. 2d 502 (2004) (no meaningful adversarial testing where defense counsel admitted the defendant’s guilt and introduced evidence of the defendant’s involvement in another grisly and unrelated murder). ¶ 34 The defendant alternatively argues that, even if defense counsel’s performance does not bring the case within the scope of Cronic and Hattery, defense counsel was ineffective under Strickland. As noted above, to prevail on a claim of ineffective assistance of counsel under Strickland, a defendant must show both that counsel’s performance was deficient and that the deficient performance prejudiced the defendant. Cherry, 2016 IL 118728, ¶ 24. More specifically, the defendant must demonstrate that counsel’s performance was objectively unreasonable under prevailing professional norms and that there is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. - 14 - 2022 IL App (2d) 200640 at 694. A defendant must satisfy both prongs of the Strickland test to prevail, and the failure to establish either prong precludes a finding of ineffective assistance of counsel. People v. Henderson, 2013 IL 114040, ¶ 11. ¶ 35 The defendant’s argument is based on the premise that defense counsel conceded the defendant’s guilt in closing argument and that defense counsel argued that surface-to-surface contact was insufficient to prove predatory criminal sexual assault, demonstrating a misapprehension of the law. As discussed above, these assertions are inaccurate representations of the record. Defense counsel did not concede the defendant’s guilt in closing argument. Further, defense counsel did not demonstrate a misapprehension of the law. Defense counsel argued that, since the alleged contact satisfied the elements of both predatory criminal sexual assault and aggravated criminal sexual abuse, the defendant should be found guilty of only the lesser offense, aggravated criminal sexual abuse. Accordingly, the defendant has failed to establish either prong of the Strickland test with these arguments. ¶ 36 The defendant also argues that defense counsel conducted insufficient cross-examination of the State’s witnesses, did not move to dismiss the indictment or present evidence that the predatory criminal sexual assault statute was unconstitutionally vague, and failed to move to suppress the defendant’s confession based on coercion. These arguments are also unavailing. The defendant has failed to establish that defense counsel’s performance was objectively unreasonable under prevailing professional norms. Defense counsel argued that the defendant’s confession was the result of being distraught and confused, and of prompting by the police, and that the State failed to prove that the defendant made any contact with the victim. While the defense was ultimately unsuccessful, this does not establish that defense counsel’s representation was objectively unreasonable. See People v. Shatner, 174 Ill. 2d 133, 148 (1996) (“If a defendant enters a not- - 15 - 2022 IL App (2d) 200640 guilty plea in the face of overwhelming evidence of his guilt, we are unwilling to find that his counsel was ineffective simply because he failed to contrive a leak-proof theory of innocence on defendant’s behalf.”). ¶ 37 The defendant argues that defense counsel conducted insufficient cross-examination of the State’s witnesses. However, the defendant has not established that defense counsel’s cross- examination was objectively unreasonable. As noted above, defense counsel’s cross-examination of A.B. elicited responses that challenged her credibility, and the cross-examination of Houghton suggested that the defendant’s confession had been coerced by the interrogation. On appeal, the defendant does not suggest any other lines of questioning that would have challenged A.B.’s credibility or elicited responses that would have supported an acquittal. ¶ 38 Finally, also without merit are the defendant’s arguments that defense counsel was ineffective in failing to file motions to suppress the indictment and her confession and in failing to present evidence that the predatory criminal sexual assault statute was unconstitutionally vague. The decision of whether or not to file pretrial motions is generally considered a matter of trial strategy, and a possible error in that strategy does not rise to the level of ineffective assistance. People v. Martin, 236 Ill. App. 3d 112, 121 (1992). Moreover, the defendant does not allege on appeal any facts that would have supported the filing of any pretrial motions or supported a vagueness challenge to the statute and has not shown that any such challenges would have had any probability of success. See People v. Patterson, 217 Ill. 2d 407, 438 (2005) (the failure to file a motion does not establish deficient representation when the motion would have been futile). Accordingly, the defendant has failed to establish ineffective assistance of counsel. ¶ 39 The defendant’s second contention on appeal is that her 11-year prison sentence is excessive. The defendant argues that the trial court did not properly weigh her significant potential - 16 - 2022 IL App (2d) 200640 for rehabilitation as demonstrated by her lack of criminal history, her ability to overcome a sexually abusive childhood, and her completion of over 180 courses during the two years she was incarcerated prior to sentencing. The defendant also argues that the trial court made comments indicating that it based her sentence, in part, on a desire to punish her for exercising her right to trial. ¶ 40 The Illinois Constitution provides that “[a]ll penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship.” Ill. Const. 1970, art. I, § 11. To achieve the constitutionally mandated balance between the retributive and rehabilitative purposes of punishment, the trial court must carefully consider all aggravating and mitigating factors, including “the defendant’s age, demeanor, habits, mentality, credibility, criminal history, general moral character, social environment, and education, 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). ¶ 41 “[T]he trial court is in the best position to fashion a sentence that strikes an appropriate balance between the goals of protecting society and rehabilitating the defendant.” People v. Risley, 359 Ill. App. 3d 918, 920 (2005). Thus, we may not disturb a sentence within the applicable sentencing range unless the trial court abused its discretion. People v. Stacey, 193 Ill. 2d 203, 209- 10 (2000). A sentence is an abuse of discretion only if it is at great variance with the spirit and purpose of the law or manifestly disproportionate to the nature of the offense. Id. at 210. We may not substitute our judgment for that of the trial court merely because we might weigh the pertinent factors differently. Id. at 209. ¶ 42 In determining an appropriate sentence, relevant considerations include the nature of the crime, the protection of the public, deterrence, and punishment, as well as the defendant’s - 17 - 2022 IL App (2d) 200640 rehabilitative prospects. People v. Kolzow, 301 Ill. App. 3d 1, 8 (1998). The weight to be attributed to each factor in aggravation and mitigation depends upon the particular circumstances of the case. Id. There is a presumption that the trial court considered all relevant factors in determining a sentence, and that presumption will not be overcome without explicit evidence from the record that the trial court did not consider mitigating factors or relied on improper aggravating factors. People v. Payne, 294 Ill. App. 3d 254, 260 (1998). ¶ 43 After reviewing the record, we conclude that the trial court did not abuse its discretion when it sentenced the defendant to 11 years’ imprisonment. The offense of predatory criminal sexual assault of a child is a Class X felony with a sentencing range of 6 to 60 years’ imprisonment. See 720 ILCS 5/11-1.40(b)(1) (West 2018). Because the defendant’s 11-year sentence fell within the applicable sentencing range, we presume that the sentence is proper. People v. Charleston, 2018 IL App (1st) 161323, ¶ 16. This presumption will be rebutted only if the defendant makes an affirmative showing that the sentence greatly departs from the spirit and purpose of the law or the constitutional guidelines. People v. Boclair, 225 Ill. App. 3d 331, 335 (1992). The defendant has not made such a showing. ¶ 44 The defendant argues that the trial court did not place enough weight on her rehabilitative potential, which was demonstrated in her lack of criminal history, self-imposed treatment for the sexual abuse she suffered as a child, and significant participation in educational courses while incarcerated. However, at the sentencing hearing, the trial court stated that it considered the defendant’s lack of criminal history and that she had, for the most part, led a law-abiding life. The trial court clearly weighed the factors in mitigation, as it sentenced the defendant to a term of years much closer to the minimum sentence than the maximum. Further, the trial court is presumed to have considered the defendant’s rehabilitative potential (Payne, 294 Ill. App. 3d at 260), and there - 18 - 2022 IL App (2d) 200640 is nothing in the record to rebut that presumption. Further, in imposing a sentence that was five years over the minimum, the trial court considered relevant factors in aggravation. Specifically, the trial court considered that the offense caused the victim serious psychological harm, the defendant was A.B.’s stepparent and thus in a position of authority and trust, and the sentence was necessary to deter others. The defendant’s potential for rehabilitation is not entitled to more weight than these aggravating factors. People v. Weiser, 2013 IL App (5th) 120055, ¶ 32. The defendant is essentially asking this court to reweigh the evidence in aggravation and mitigation. We decline to reweigh the evidence or substitute our judgment for that of the trial court. Stacey, 193 Ill. 2d at 209. ¶ 45 The defendant also argues that the trial court erred in basing her sentence, in part, on a desire to punish her for exercising her right to trial. A sentence will be set aside where it was imposed because the defendant refused to plead guilty and instead availed herself of her constitutional right to trial. People v. Ward, 113 Ill. 2d 516, 526 (1986). ¶ 46 In so arguing, the defendant refers to the following, which occurred at the sentencing hearing. The trial court noted that one of the defendant’s arguments in mitigation was that the defendant was the one who ultimately came forward with the information that resulted in her prosecution for the offense. The defendant asserted that she did so because she wanted to prompt A.B. to get help for the psychological harm that resulted from the incident. As to this argument, the trial court stated: “THE COURT: What is conveniently left out of that is while the defendant is doing all of that, exercising the constitutional rights that every one [sic] enjoys, the victim also came to court and had to testify in open court about what happened to her to people she doesn’t know. I say that as an aside. That’s not exactly looking out for the victim.” - 19 - 2022 IL App (2d) 200640 ¶ 47 The defendant’s argument that her sentence was imposed as a punishment for exercising her right to trial is clearly rebutted by the record. In the above quote, the trial court stated that this was only “an aside.” Further, after stating the above, the trial court also stated that it does “not punish people for exercising their rights.” The trial court explained that its sentence was based on the acts and character of the defendant and what it believed was an appropriate sentence. The trial court then reiterated: “THE COURT: I do not sentence people for exercising their rights. I cannot sentence people for some of the editorial comments that I hope sink in in the future while you are sitting in jail thinking about what you have done and what you have not done in relation to this case.” Accordingly, after noting that A.B. was required to come to court to testify, the trial court stated twice that it was not basing its sentence on this observation or on the defendant’s exercise of her right to trial. The defendant’s argument is thus without merit. ¶ 48 The defendant’s final contention on appeal is that the restitution order should be vacated because the trial court failed to consider the defendant’s ability to pay, to fix a method of payment, and to set a time period for it to be paid in full. The defendant concedes that she did not object at the sentencing hearing or raise the issue in a postsentencing motion but argues that we should review this issue under the plain-error doctrine or as an ineffective assistance claim. ¶ 49 In the sentencing context, unpreserved errors may be reviewed under the plain-error doctrine if (1) the evidence at sentencing was closely balanced or (2) the error was so egregious as to deny the defendant a fair sentencing hearing. People v. Walsh, 2016 IL App (2d) 140357, ¶ 17. The first inquiry under plain-error review is to determine whether error actually occurred. People v. Morrow, 2014 IL App (2d) 130718, ¶ 11. - 20 - 2022 IL App (2d) 200640 ¶ 50 Section 5-5-6(f) of the Unified Code of Corrections (Code) provides in relevant part: “Taking into consideration the ability of the defendant to pay, *** the court shall determine whether restitution shall be paid in a single payment or in installments, and shall fix a period of time not in excess of 5 years, *** within which payment of restitution is to be paid in full. *** However, if the court deems it necessary ***, [it] may extend [the period of time] beyond 5 years.” 730 ILCS 5/5-5-6(f) (West 2018). In setting the amount of restitution, the trial court “is not required to consider a defendant’s financial circumstances.” People v. Day, 2011 IL App (2d) 091358, ¶ 56. Rather, “the trial court is required to consider the ability to pay only when determining the time and manner of payment or when considering a petition to revoke restitution.” (Emphasis in original.) Id. Compliance with the statute is mandatory. People v. White, 146 Ill. App. 3d 998, 1004 (1986). ¶ 51 In the present case, the trial court’s restitution order did not set forth (1) the date by which the defendant was to pay restitution or (2) whether the defendant was to pay in a lump sum or in installments. In People v. Brooks, 158 Ill. 2d 260, 272 (1994), our supreme court excused a trial court’s failure to set the manner for payment of restitution where the trial court set a concrete deadline for the payment of restitution. Under those circumstances, the Brooks court held that it could be inferred that restitution was to be paid in a single payment. Id. Here, unlike Brooks, the trial court did not set a deadline for the restitution payment. A restitution order is “fatally incomplete” when the trial court “does not specify a particular time” for payment. In re Estate of Yucis, 382 Ill. App. 3d 1062, 1067 (2008). We thus conclude that the trial court erred in failing to set a time limit for payment of the restitution as required by the statute. ¶ 52 As we have determined that the trial court erred in failing to set a deadline for payment of the restitution, we must next determine whether this error rises to the level of plain error. We - 21 - 2022 IL App (2d) 200640 conclude that plain-error review is appropriate in this case under the second prong, as the error challenges the integrity of the judicial process and undermines the fairness of the defendant’s sentencing hearing. See People v. Mullen, 2018 IL App (1st) 152306, ¶ 38 (“We can and should review legal errors in the assessment of fines and fees as plain error.”). The defendant needs to know the deadline for payment of restitution, as there are consequences for not complying with a restitution order. See 730 ILCS 5/5-5-6(b) (West 2018) (if restitution is not paid in the time and manner specified by the court, the court may order the seizure of the defendant’s property). ¶ 53 Moreover, even if this error did not rise to the level of second-prong plain error, we could review the error in the interests of justice. See People v. Hibbler, 2019 IL App (4th) 160897, ¶ 81 (despite the defendant’s forfeiture, the matter was remanded for compliance with section 5-5-6(f) of the Code in setting the time and manner of payment of restitution); People v. Fontana, 251 Ill. App. 3d 694, 704-05 (1993) (noting that forfeiture was a limitation on the parties and addressing, in the interest of justice, the trial court’s failure to set the time and manner of payment of restitution). We note that one of the purposes of restitution is to make a victim of a crime whole. Id. at 707. Without a deadline for the payment of restitution, the defendant could not be found delinquent in failing to pay. Without a delinquency, a crime victim could not enforce a restitution judgment. See 730 ILCS 5/5-5-6(m)(3) (West 2018) (a restitution order acts as a judgment lien in favor of the victim, who may enforce any payment that is delinquent). Accordingly, we remand for the limited purpose of allowing the trial court to determine, taking into consideration the defendant’s ability to pay, the terms and timeframe for the defendant to satisfy her restitution obligation. Our resolution of this issue makes it unnecessary to address the defendant’s remaining claim that her trial counsel rendered ineffective assistance in failing to object to the restitution order. - 22 - 2022 IL App (2d) 200640 ¶ 54 III. CONCLUSION ¶ 55 For the reasons stated, the defendant’s conviction and sentence are affirmed and we remand for the limited purpose of allowing the trial court to set a time limit and terms for the payment of restitution. ¶ 56 Affirmed and remanded with directions. - 23 - 2022 IL App (2d) 200640 No. 2-20-0640 Cite as: People v. Boots, 2022 IL App (2d) 200640 Decision Under Review: Appeal from the Circuit Court of Kane County, No. 18-CF-659; the Hon. Donald J. Tegeler, Judge, presiding. Attorneys James E. Chadd, Douglas R. Hoff, and Bryon M. Reina, of State for Appellate Defender’s Office, of Chicago, for appellant. Appellant: Attorneys Jamie L. Mosser, State’s Attorney, of St. Charles (Patrick Delfino, for Edward R. Psenicka, and Victoria E. Jozef, of State’s Attorneys Appellee: Appellate Prosecutor’s Office, of counsel), for the People. - 24 -