People v. Gonzales

No. 2--95--0122
________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
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THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of Lake County.
)
Plaintiff-Appellee, )
) No. 94--CF--1293
v. )
)
MIGUEL D. GONZALES, ) Honorable
) Christopher C. Starck,
Defendant-Appellant. ) Judge, Presiding.
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JUSTICE GEIGER delivered the opinion of the court:
In July 1994, the defendant, Miguel D. Gonzales, was charged
by indictment with three counts of first degree murder (720 ILCS
5/9--1(a)(1) (West 1994) (count I); 720 ILCS 5/9--1(a)(2) (West
1994) (counts II and III)). He was also charged with aggravated
battery with a firearm (720 ILCS 5/12--4.2(a)(1) (West 1994) (count
IV)) and aggravated discharge of a firearm (720 ILCS 5/24--
1.2(a)(2) (West 1994)). The charges arose from the defendant's
shooting of his girlfriend's ex-husband, Carlos Rodriguez, on or
about July 3, 1994. The defendant appeals the sentence imposed in
this cause. We affirm.
Following a jury trial, the defendant was found guilty of one
count each of first degree murder, aggravated battery with a
firearm, and aggravated discharge of a weapon. The court sentenced
him to 42 years' imprisonment for the murder offense and 12 years'
imprisonment for the aggravated battery with a firearm. The court
vacated the judgment on the aggravated discharge of a firearm which
the court found to be a lesser-included offense.
In this timely appeal, the defendant argues that, in imposing
sentence, the trial court erred in considering two victim impact
statements where one subsection of the Rights of Crime Victims and
Witnesses Act (Crime Victims Act) defines a crime victim as "(3) a
single representative who may be the spouse, parent, child or
sibling of a person killed as a result of a violent crime
perpetrated against the person killed" (725 ILCS 120/3(a)(3) (West
1994)). Defense counsel failed to object to the consideration of
the impact statements appended to the presentence investigation.
The defendant nevertheless urges that their consideration either
amounted to plain error or resulted from the ineffective assistance
of his trial counsel. We disagree.
The failure to object to the consideration of allegedly
improper evidence during a sentencing hearing and to raise the
issue in a post-sentencing motion results in a waiver of the issue
on appeal unless the error is deemed plain error. People v.
Mahaffey, 166 Ill. 2d 1, 27 (1995); see People v. Simpson, 172 Ill. 2d 117, 147 (1996) (issue of relevance of victim impact evidence
waived). The failure to object to allegedly improper victim impact
evidence ordinarily results in waiver on appeal in noncapital
cases. See People v. Wright, 234 Ill. App. 3d 880, 899 (1992);
People v. Gutirrez, 205 Ill. App. 3d 231, 266 (1990); People v.
Lybarger, 198 Ill. App. 3d 700, 703 (1990). A reviewing court may
apply the plain error exception to the waiver rule where the
evidence is closely balanced or where the error is so substantial
that it denied the defendant a fair proceeding. Mahaffey, 166 Ill. 2d at 27.
We find neither circumstance present here, and we deem the
alleged error waived. Additionally, the error, if any, is not so
substantial that we would find the type of prejudice necessary to
conclude that defense counsel was ineffective. The defendant has
failed to show that the court's consideration of the impact
statements was so prejudicial that it undermines confidence in the
outcome. People v. Van Ostran, 168 Ill. App. 3d 517, 522 (1988).
Victim impact statements concerning the effects upon the
victim's family are both relevant and admissible during the
sentencing phase of a trial. People v. Pavlovskis, 229 Ill. App.
3d 776, 782 (1992). According to section 5--3--2(a)(3) of the
Unified Code of Corrections (Code), the impact of the offense upon
"the victim or victims" is to be set forth in the presentence
report. (Emphasis added.) 730 ILCS 5/5--3--2(a)(3) (West 1994).
Pursuant to section 6 of the Crime Victims Act, a victim also has
the right to present an impact statement orally to the trial court
at the sentencing hearing; that statement is to be prepared in
writing in conjunction with the State's Attorney prior to the
hearing. 725 ILCS 120/6 (West 1994); Pavlovskis, 229 Ill. App. 3d
at 780-82.
Notwithstanding the defendant's highly restrictive view that
one subsection of the statutory definitions of crime victim
contemplates only one representative addressing the court, our
review of the cases and the overall statutory scheme persuades us
that the trial court may consider victim impact evidence from more
than one source. See, e.g., Pavlovskis, 229 Ill. App. 3d at 780-
82; People v. Forbes, 205 Ill. App. 3d 851, 864 (1990); People v.
Hernandez, 204 Ill. App. 3d 732, 744-46 (1990). Moreover, it is
clear to us that the trial court gave no undue weight to the victim
impact statements and merely mentioned the written reports in
passing. No victim actually addressed the court. At most, the
statements amounted to cumulative evidence.
Our review of the record shows that the court considered many
factors in rendering its sentence, including, among others, the
seriousness of the offense, the reckless manner in which the
defendant returned to shoot the victim again in the presence of
others and the corresponding need to protect the public; the need
to deter others; and the defendant's attempt, while in custody, to
solicit assassins to harm family members of the victim.
Nevertheless, the court imposed an intermediate sentence. The
defendant waived the issue of the court's consideration of the
victim impact statements. Even if not waived, we find neither
plain error here nor any merit in the claim of ineffective
assistance of counsel.
The judgment of the circuit court is affirmed.
Affirmed.
INGLIS and RATHJE, JJ., concur.