People v. Smith

No. 2--95--1483

________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

_________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit
OF ILLINOIS, ) Court of Lake County.
)
Plaintiff-Appellee, )
) No. 92--CF--1176
v. )
)
TIMOTHY G. SMITH, ) Honorable
) Raymond J. McKoski,
Defendant-Appellant. ) Judge, Presiding.
________________________________________________________________

JUSTICE HUTCHINSON delivered the opinion of the court:

Defendant, Timothy G. Smith, appeals the order of the circuit
court of Lake County denying his motion to reconsider his sentence.
On appeal, defendant argues (1) that the trial court abused its
discretion when it sentenced defendant, and (2) that the mittimus
be corrected to conform to the trial court's oral pronouncement of
defendant's conviction. We affirm.
On May 20, 1992, defendant was charged with four counts of
aggravated criminal sexual assault (720 ILCS 5/12--14 (West 1992))
and one count of aggravated criminal sexual abuse (720 ILCS 5/12--
16 (West 1992)). On August 17, 1992, defendant admitted to
violating his probation and entered negotiated pleas of guilty to
one of the three counts of aggravated criminal sexual assault and
one count of aggravated criminal sexual abuse. In return for the
plea, the State agreed to (1) dismiss the remaining three counts of
aggravated criminal sexual assault, and (2) recommend a sentence
cap of 25 years' imprisonment.
Prior to the sentencing hearing, the trial court ordered an
updated presentence investigation report. The presentence report
indicated that defendant was originally sentenced to three years'
probation in July 1988 for aggravated criminal sexual abuse. In
August 1990 defendant was resentenced to two years' probation for
violating his probation sentence by failing to cooperate with
treatment for sexual offenders. In January 1991 defendant was held
in contempt of court for violating the terms of his probation and
ordered to complete the remainder of his sentence in the Lake
County jail. The report also contained information about
defendant's employment record, family background, and his
participation in counseling programs. Defendant was ordered to
attend counseling at the Community Youth Network as a condition of
his previous sentence of probation for aggravated criminal sexual
abuse. He was refused treatment in April 1992 because of his
failure to pay for the services; in May 1992 defendant committed
the offenses at issue in the present case. The report also
indicates that defendant admits to his criminal behavior, but he
"neither understands or [sic] is able to control his behavior."
Defendant paid his court obligations in full, reported regularly to
the probation department, and completed his public service.
Defendant gave a voluntary statement to the Waukegan police
department in May 1992 in which he described in detail his version
of the events of the sexual assault on the victim. Defendant
stated that he had "no intentions of hurting the little girl," but
that he "just wanted to do it and let her go."
A mental health evaluation of defendant conducted by Alfred
Marx, Ph.D., was filed on September 25, 1992. A June 1990 report,
partially described in the evaluation, characterized defendant's
intellectual functioning at the top of the "mentally deficient"
range and the "mild mental retardation" category. Dr. Marx' report
states in part:
"[Defendant] has little ability to see things in any
perspective, to connect past experiences with the present, or
to modify his present understanding or behavior in accordance
with anticipated future events or consequences."
Further, Dr. Marx observed recurring themes based on defendant's
comments: (1) acknowledgment that his behavior was wrong,
inappropriate, and illegal; (2) a lack of understanding about how
he could have allowed himself to engage in such behavior; (3)
projecting blame to others; (4) complaints that he is misunderstood
and unfairly treated; (5) anger; and (6) recognition that he needs
treatment. Dr. Marx concluded that defendant is emotionally
immature, "functioning at a child-like level," as well as
manifesting a significant problem with impulse control. Dr. Marx
went on to state:
"So far as efforts at helpful interventions are concerned,
[defendant] has a reported history of failure to consistently
follow through with the conditions of probation, with the
requirements of treatment programs, etc. Thus it was reported
that he failed to report consistently to probation, that he
'walked out of' work release, and that he was 'unsuccessfully
discharged from the Community Youth Network's sexual
offenders' program' because of 'an irresponsible and avoidant
stance with regard to his treatment.' *** [Defendant's]
failure to consistently follow through with the requirements
of probation or of any outpatient treatment program ***
appears *** to be a function of a combination of his
intellectual limitations and a severe personality disorder
which *** renders him emotionally and behaviorally unstable
and interpersonally dysfunctional[.] *** [Defendant] does not
seem to readily learn from experience so that prior offenses,
jail, probation, and the threat of consequences don't
'stick.' "
Dr. Marx diagnosed defendant with pedophilia, mild mental
retardation, and personality disorder. He opined that defendant is
a high risk for reoffending and too high of a risk for outpatient
treatment.
The trial court sentenced defendant to a term of 20 years'
imprisonment. Following two earlier remands of this case,
defendant now appeals the length of his sentence as well as the
correctness of the mittimus.
As a preliminary matter, we must dispense with defendant's
motion to strike a portion of the State's argument in its surreply
brief. Defendant contends that, because the State did not request
argument on defendant's second issue, the State exceeded its scope
by providing argument on the second issue. Defendant has moved to
strike this portion of the State's surreply brief. Supreme Court
Rule 341 (155 Ill. 2d R. 341) governs the form and contents of
appellate briefs. See also In re M.M., 156 Ill. 2d 53, 56 (1993).
Adherence to supreme court rules governing briefs is not an
inconsequential matter. Lagen v. Balcor Co., 274 Ill. App. 3d 11,
14-15 (1995). We have reviewed our order granting the State's
motion to file a surreply brief and the State's surreply brief. We
note that this court's order did not limit the contents or scope of
the State's surreply brief. We, therefore, deny defendant's motion
to strike.
Before addressing the merits of defendant's appeal, the State
contends that defendant is not entitled to challenge his sentence,
based on the recent decision of our supreme court in People v.
Evans, 174 Ill. 2d 320 (1996). The State argues that, because his
sentence was entered as part of a negotiated guilty plea, defendant
was bound to file a motion to withdraw the negotiated guilty plea.
Because defendant did not do so, the State maintains, he is
precluded from challenging his sentence on appeal.
Evans is a consolidation of two cases, People v. Meeks, 275
Ill. App. 3d ___ (unpublished order under Supreme Court Rule 23),
and People v. Evans, 275 Ill. App. 3d ___ (unpublished order under
Supreme Court Rule 23). In Meeks, the defendant and the State
negotiated a plea agreement whereby Meeks would plead guilty to one
charge; in exchange, the State would move to dismiss two other
charges, several other pending charges, and recommend a determinate
sentence of 10 years' imprisonment. The defendant in Evans
negotiated a plea agreement with the State whereby Evans would
plead guilty to two charges; in exchange, the State would move to
dismiss a third charge and recommend concurrent sentences of 11 and
5 years' imprisonment, to serve concurrently with other sentences
previously imposed in another county. The trial courts accepted
the negotiated plea agreements and sentenced the defendants to the
recommended prison terms. Following the entry of the trial court's
judgment, each defendant then sought to reduce his sentence by
filing a motion to reconsider the sentence under Supreme Court Rule
604(d)(145 Ill. 2d R. 604(d)).
Our supreme court analyzed the application of Supreme Court
Rule 604(d) to negotiated guilty pleas, as opposed to open guilty
pleas. The Evans court applied contract law principles to the
consolidated cases because the defendant and the State agreed that
the defendant would plead guilty to certain charges, and the State
would (1) dismiss other charges, and (2) recommend a specific
sentence. Evans, 174 Ill. 2d at 327. "[U]nder these
circumstances," the court stated, "the guilty plea and the sentence
'go hand in hand' as material elements of the plea bargain."
Evans, 174 Ill. 2d at 332. The supreme court, therefore, held that
"following the entry of judgment on a negotiated guilty plea, even
if a defendant wants to challenge only [her or] his sentence, [she
or] he must move to withdraw the guilty plea and vacate the
judgment." Evans, 174 Ill. 2d at 332. To hold otherwise, the
court stated, would render meaningless the negotiated plea
agreement entered into between the parties.
The Evans court seems to suggest that only two types of guilty
pleas exist: open guilty pleas and negotiated guilty pleas. The
court did not define "negotiated guilty plea," but defined "open
guilty plea" in the context of defendants who plead guilty "without
receiving any promises from the State in return." Evans, 174 Ill. 2d at 332. To some, this may imply that everything else is
relegated to the category of "negotiated" guilty pleas. As a
result of this implication, the State argues, defendants wishing to
challenge their sentence pursuant to anything other than an open
plea must first move to withdraw their guilty plea and vacate the
judgment entered thereon.
The State's position is overly simplistic. The criminal
justice system is blessed with a panoply of negotiated guilty
pleas. See generally 2 W. La Fave & J. Israel, Criminal Procedure
20, at 553 (1984) (discussing guilty pleas and providing
examples). Negotiated guilty pleas are generally the result of an
agreement between the defendant and the State. The two parties
usually agree upon two major areas, taken singularly or in
combination: charging matters and sentencing matters. One form of
negotiated plea consists of an arrangement whereby the defendant
and the State agree that the defendant will plead guilty to a
lesser offense than the actual crime, perhaps to limit the trial
court's sentencing discretion, or to avoid a record of conviction
on the more serious charge. Other forms of negotiated pleas exist
whereby the parties agree that the defendant will plead guilty to
the original charge in exchange for a specific disposition, such as
a certain sentence, or a promise of leniency, or a request for
probation. Yet another form consists of the defendant pleading
guilty to a charge in exchange for the State's promise to drop or
not file additional charges.
Combining the charging issues and sentencing issues may lead
to a negotiated plea with the defendant pleading guilty to a charge
or charges in exchange for the State's dismissal of other charges
and a period-specific sentence. See Evans, 174 Ill. 2d 320.
Another combination may occur when the defendant pleads guilty and
the State agrees to drop other charges and recommend a minimum and
maximum sentencing range. See People v. Catron, 285 Ill. App. 3d
36 (1996). Yet another may consist of the defendant pleading
guilty to certain charges in exchange for a dismissal of other
charges and a sentence not to exceed a certain number of years.
See People v. Wilson, 286 Ill. App. 3d 169 (1997).
With regard to sentencing issues, we are mindful that imposing
a sentence upon a defendant is the function of the trial court, not
the prosecutor. See 730 ILCS 5/5--8--1 (West Supp. 1995). It,
therefore, follows that, even if the defendant and the State were
to agree upon a specific sentence, the trial court possesses the
ultimate authority and discretion to impose that specific sentence,
decrease the length of the agreed-upon sentence, or increase the
defendant's incarceration, subject to the established statutory
guidelines.
We recognize the difference of opinion on this issue among the
districts of the Illinois Appellate Court since Evans was decided.
In People v. Leach, 284 Ill. App. 3d 4 (2d Dist. 1996), the
defendant and the State entered into a negotiated plea agreement
whereby the defendant would plead guilty to a charge of escape and
the State would recommend a sentence of two years' imprisonment,
served consecutive to a sentence imposed for a separate conviction.
The trial court accepted the plea agreement; subsequently, the
defendant petitioned to have his sentences run concurrently. The
Appellate Court, Second District, held that the defendant was not
entitled to a reduction of his negotiated sentence because it had
been specifically bargained for in his plea agreement, similar to
the defendants in Evans. Leach, 284 Ill. App. 3d at 6. Thus, the
Leach court noted relief could only be obtained by moving to
withdraw his guilty plea and vacate the judgment, as well as
showing that granting the motion was necessary to correct a
manifest injustice. Leach, 284 Ill. App. 3d at 6-7.
In People v. Catron, 285 Ill. App. 3d 36 (4th Dist. 1996), the
defendant pleaded guilty to six counts of residential burglary in
exchange for a recommended prison sentence ranging from 4 to 15
years. The trial court imposed concurrent terms of 15-year
sentences, and the defendant appealed, claiming the sentence was
excessive. The Appellate Court, Fourth District, applied contract
principles relied upon in Evans and affirmed, stating that the
defendant implicitly conceded that a 15-year sentence could not be
excessive because he had agreed to a range of sentences. The
Catron court proceeded:
"We recognize that Evans did not consider the situation
where the alleged sentencing was allowed to be something more
than a mere claim that the sentence is excessive. One such
claim is that which defendant attempts to raise here, namely,
that the trial court gave him the maximum sentence based, in
part, upon improper consideration of a factor inherent in the
crime. Had defendant raised this issue in the trial court, we
do not believe Evans would foreclose a motion to reconsider
sentence without vacating the plea." Catron, 285 Ill. App. 3d
at 37-38.
Similar to the present case is People v. Wilson, 286 Ill. App.
3d 169 (2d Dist. 1997). In Wilson, the defendant entered a
negotiated plea of guilty to various offenses. In exchange, the
State agreed to nol-pros one charge and recommend a sentence cap of
nine years' imprisonment for the other three charges. The trial
court accepted the plea agreement and imposed concurrent sentences
of nine years' imprisonment. Defendant appealed. The Wilson court
distinguished Evans, in that the defendants in Evans agreed to
specific sentences in exchange for their guilty pleas and the trial
courts exercised no discretion in sentencing the defendants. The
Appellate Court, Second District, thus held that, because the trial
court had the discretion to determine the appropriate sentence for
defendant, the defendant could raise the issue on appeal as to
whether the trial court abused its discretion when it sentenced the
defendant without moving to withdraw his plea. Wilson, 286 Ill.
App. 3d at 172-73.
In People v. Johnson, 286 Ill. App. 3d 597 (1997), the State
agreed to dismiss several charges in exchange for the defendant's
guilty plea to the remaining counts. No agreement on sentencing
was reached. The Appellate Court, Second District, held that the
defendant was not precluded from challenging the trial court's
sentence only because the imposition of the sentence was left to
the discretion of the trial court.
Finally, in People v. Sanders, No. 3--95--0294 (March 21,
1997), the defendant pleaded guilty to one charge of first degree
murder in exchange for a sentencing cap of 45 years. The trial
court imposed a 45-year sentence. The trial court subsequently
denied the defendant's motion to withdraw his guilty plea.
Defendant appealed, claiming his sentence was excessive. The
Appellate Court, Third District, modeled its ruling after Evans and
Catron. The Sanders court simply affirmed, determining that the
defendant knew that the trial court could impose a 45-year sentence
when he entered his negotiated plea. By agreeing to the plea, the
Sanders court stated, the defendant effectively agreed that a 45-
year sentence was not manifestly unjust. Sanders, slip op. at 2.
However, the specially concurring opinion by Justice Holdridge
maintains that Catron impermissibly expanded the Evans holding, and
analogized the plea in Sanders to an open plea. Justice Holdridge
would have allowed a discussion on the merits of the defendant's
claim because "[w]here a defendant pleads guilty in exchange for a
sentencing cap, the trial court will choose from a range of
potential sentences." Sanders, slip op. at 2 (Holdridge, J.,
specially concurring). Further, "there is always the danger that
the court will not properly exercise its discretion. To prohibit
such a defendant from appealing an excessive sentence simply
because [the defendant] 'bargained for' that range is ***
fundamentally unfair." Sanders, slip op. at 2 (Holdridge, J.,
specially concurring).
In each of the cases permitting review of a defendant's
sentence following a negotiated plea agreement without requiring a
motion to withdraw the plea, the common denominator of law seems to
be that when a trial court exercises any discretion in imposing a
sentence, a defendant should be allowed to challenge that sentence
to determine whether the trial court abused its discretion. In the
present case, defendant entered a negotiated plea of guilty to one
count of aggravated criminal sexual assault and one count of
aggravated criminal sexual abuse. In return, the State agreed to
dismiss three other counts of aggravated criminal sexual assault
and recommend a sentence cap of 25 years' imprisonment. Because
the trial court exercised its discretion to impose a sentence of 20
years' imprisonment for defendant, we determine that defendant's
subsequent motion to only reconsider his sentence was proper and
we, therefore, have jurisdiction to review the trial court's order
denying it.
Defendant contends that the trial court erred in refusing to
consider certain mitigating factors of defendant, i.e., that
defendant is mentally retarded, functions at a child-like level,
suffers from a severe personality disorder, and did not intend to
cause serious harm to the victim.
Reviewing courts have the power under Supreme Court Rule
615(b)(4) (134 Ill. 2d R. 615(b)(4)) to reduce sentences. The
determination and imposition of a sentence is a matter involving
considerable judicial discretion, and our standard of review to be
applied is whether the trial court abused its discretion. People
v. Shaw, 278 Ill. App. 3d 939, 953 (1996), citing People v. Harris,
187 Ill. App. 3d 832, 843 (1989); see also People v. Streit, 142 Ill. 2d 13, 15 (1991). The trial court has broad discretionary
powers in choosing the appropriate sentence a defendant should
receive. People v. Jones, 168 Ill. 2d 367, 373 (1995). The trial
court is in a superior position to assess the credibility of the
witnesses and to weigh the evidence presented at the sentencing
hearing. Jones 168 Ill. 2d at 373, citing People v. Younger, 112 Ill. 2d 422, 427 (1986), quoting People v. La Pointe, 88 Ill. 2d 482, 492-93 (1981). Further, a reviewing court will not substitute
its judgment for that of a sentencing judge simply because it might
have balanced the sentencing factors differently. Streit, 142 Ill. 2d at 19, citing People v. Pittman, 93 Ill. 2d 169, 178 (1982);
People v. Orsby, 286 Ill. App. 3d 142, 153 (1996).
After reviewing the record, we find that the trial court did
not abuse its discretion in sentencing defendant to 20 years'
imprisonment. The record shows that the trial court did not merely
give "lip service" to defendant's mitigating factors, but
thoroughly considered the evidence presented and weighed the
appropriate factors in aggravation and mitigation that influenced
his sentencing decision. Factors specifically mentioned were
defendant's use of a vibrator on the victim; defendant's cognizance
that he was on probation at the time of the assault; defendant's
functioning at the top of the mentally deficient range; and
defendant's suffering from a personality disorder. The trial court
also took into account defendant's criminal history and his failure
to maintain his probation. The trial court further considered
defendant's explanation that he was turned away from counseling
approximately two weeks prior to the instant offense occurring.
Nevertheless, weighing the mitigating evidence against the
aggravating circumstances, the trial court chose to impose a
lengthy term of imprisonment, stating that defendant is a danger to
the community and needed to be sentenced for a lengthy term. In
light of these observations of the trial court at the sentencing
hearing and the hearing to reconsider defendant's sentence, the
record fails to demonstrate an abuse of discretion, and we see no
reason to disturb the sentence.
Defendant's second issue on appeal is that the mittimus must
be corrected to conform to the trial court's oral pronouncement of
defendant's conviction. During the sentencing hearing, the trial
court stated:
"[T]his sentence is on Count 1 [aggravated criminal
sexual assault] ***. Count 5 [aggravated criminal sexual
abuse] *** arises from the same conduct in the same
transaction as the other offense, Count 1, and as a result I
enter no judgment of conviction on that, and judgment of
conviction is just entered on Count 1 ***."
The mittimus contained in the common-law record shows that
defendant was convicted of both aggravated criminal sexual assault
and aggravated criminal sexual abuse.
Where the report of proceedings conflicts with the common-law
record, the report of proceedings will prevail and the common-law
record must be corrected. People v. Peeples, 155 Ill. 2d 422, 496
(1993); People v. Stingley, 277 Ill. App. 3d 239, 242 (1995); see
also People v. Mitchell, 234 Ill. App. 3d 912, 921 (1992)(holding
that misstatements made on a mittimus should be corrected to
reflect the proper judgment of the court). A reviewing court has
a duty to resolve contradictions that exist between the common-law
record and the report of proceedings by looking at the record as a
whole. Stingley, 277 Ill. App. 3d at 242, citing People v. Fike,
117 Ill. 2d 49, 56 (1987).
In the sentencing hearing, the trial court imposed a 20-year
sentence of incarceration upon defendant. The trial court
proceeded to inform defendant of his right to appeal, procedures
that defendant must comply with should he desire an appeal, and the
nature of the hearings that would take place if defendant continued
in his appeal. After defendant indicated his understanding of the
trial court's instructions, the trial court specifically made its
statements regarding the judgment of conviction as to aggravated
criminal sexual assault. The only other issue discussed following
the trial court's judgment of conviction concerned the
certification of defendant as an habitual child sex offender.
Upon review of the record as a whole, we find that the plain
language of the transcript at the sentencing proceeding reveals
that the trial court entered a judgment of conviction as to
aggravated criminal sexual assault and entered no judgment of
conviction as to aggravated criminal sexual abuse. Remand is
unnecessary because this court has the authority to directly order
the clerk of the circuit court to make the necessary correction.
134 Ill. 2d R. 615(b)(1); People v. McCray, 273 Ill. App. 3d 396,
403 (1995). Accordingly, we direct the clerk to amend the mittimus
to reflect only defendant's conviction of aggravated criminal
sexual assault.
For the reasons stated, the judgment of the circuit court of
Lake County is affirmed.
Affirmed.
INGLIS and THOMAS, JJ.,concur.