Since defendant never challenged the constitutionality of these statutes in the trial court, we conclude that he has waived this issue. ( People v. Coleman (1983), 120 Ill. App.3d 851, 853, 459 N.E.2d 5, 6.) While we may decline to apply the waiver rule where a substantial question of constitutionality is raised, which, if sustained, would make void the statute under which a defendant was charged and convicted ( People v. McNeal (1983), 120 Ill. App.3d 625, 627, 458 N.E.2d 630, 631), the determinant factor is "the nature of the claimed constitutional question" ( People v. Coleman (1983), 120 Ill. App.3d 851, 854, 459 N.E.2d 5, 7 (see also supplemental opinion on denial of rehearing).) In this regard, we note that we rejected the same arguments raised by the defendant in People v. Sturlic (1985), 130 Ill. App.3d 120, 126-30, 474 N.E.2d 1, 6-8, and thus no substantial question of constitutionality has been raised.
• 1 Preliminarily, we consider the State's contention that the constitutional issue has been waived by defendant's failure to raise it in the trial court. While the general rule is that the failure to raise the issue of a statute's constitutionality in the trial court is a waiver of that issue on review ( People v. Amerman (1971), 50 Ill.2d 196, 279 N.E.2d 353; People v. Luckey (1969), 42 Ill.2d 115, 245 N.E.2d 769; People v. Coleman (1983), 120 Ill. App.3d 851, 459 N.E.2d 5), it has been held that where the conviction was under an unconstitutional statute, it is a nullity, and there is no need for a defendant to preserve the error by post-trial motion since the conviction is void and can be attacked at any time. ( People v. Wagner (1982), 89 Ill.2d 308, 311, 433 N.E.2d 267.)
Defendant has waived the issue. It is well settled that the question of the constitutionality of the statute is properly preserved for review only when it has been raised and passed upon by the trial court ( People v. Myers (1981), 85 Ill.2d 281; People v. Amerman (1971), 50 Ill.2d 196; People v. Coleman (1983), 120 Ill. App.3d 851), and the issue may not be raised for the first time on appeal ( People v. Shaw (1975), 31 Ill. App.3d 555). It is only where the unconstitutionality of the statute has first been established that it becomes a matter of fundamental justice to apply the ruling to subsequent cases on appeal even though the issue was not raised in the trial court. People v. Gully (1986), 151 Ill. App.3d 795, 798; People v. Koppen (1975), 29 Ill. App.3d 29.
Nor from our review of defendant's brief argument and authority cited in support of this contention in the reply brief do we believe a substantial question of constitutionality is raised to warrant relaxation of the waiver rule. See People v. Coleman (1983), 120 Ill. App.3d 851, 854, 459 N.E.2d 5. • 8 Defendant next contends that certain comments by the prosecutor during closing argument were part of a theme designed to inferentially remind the jurors that defendant failed to testify.
We find it is waived for that reason (107 Ill.2d R. 341(e)(7)), and for the reason that this particular challenge to the statute was not raised in the trial court. People v. Coleman (1983), 120 Ill. App.3d 851. For the reasons expressed above, the judgment of the circuit court of Du Page County finding J.M.
It is fundamental that the failure to raise the issue of a statute's constitutionality in the trial court is ordinarily a waiver of that issue on review. ( People v. Amerman (1971), 50 Ill.2d 196, 197, 279 N.E.2d 353; People v. Hope (1986), 142 Ill. App.3d 171, 173, 491 N.E.2d 785; People v. Coleman (1983), 120 Ill. App.3d 851, 853, 459 N.E.2d 5; see also People v. Dale (1986), 112 Ill.2d 460, 466-67, 493 N.E.2d 1060.) However, where a substantial question of constitutionality is raised which, if sustained, would make void the statute under which the accused was charged and convicted, a reviewing court will decline to apply the waiver rule.
We need not address defendant's contentions in this instance. Defendant did not raise the issue of the constitutionality of the criminal-sexual-assault statute before the trial court and therefore has waived the issue for purposes of appeal. See, e.g., People v. Coleman (1983), 120 Ill. App.3d 851, 853, 459 N.E.2d 5, 6; People v. Koppen (1975), 29 Ill. App.3d 29, 31-32, 329 N.E.2d 421, 423. See also People v. Myers (1981), 85 Ill.2d 281, 290-91, 426 N.E.2d 535, 539.
• 2 Defendant, however, failed to raise the present constitutional challenge to the sentencing statute in the trial court either at the sentencing hearing or by post-trial motion and his failure to do so constitutes a waiver of that issue on review. ( People v. Amerman (1971), 50 Ill.2d 196; People v. Coleman (1983), 120 Ill. App.3d 851, 853.) We note the same issue was recently considered and rejected in People v. Cartalino (1982), 111 Ill. App.3d 578.