Opinion
No. 1-11-1510
08-02-2013
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TONY CHILDS, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the
Circuit Court of
Cook County.
No. 08 CR 18945
Honorable
Frank G. Zelezinski,
Judge Presiding.
JUSTICE delivered the judgment of the court.
Justices Palmer and Taylor concurred in the judgment.
ORDER
¶ 1 Held: Defendant was proven guilty beyond a reasonable doubt when the victim testified that codefendant pointed a gun at her and there was no evidence in the record indicating that this gun was not a "real" gun. Defendant's procedural default must be honored when he failed to establish that the trial court erred at sentencing. ¶ 2 After a bench trial, defendant Tony Childs was convicted of aggravated vehicular hijacking, and sentenced to 19 years in prison. On appeal, defendant contends that he was not proven guilty beyond a reasonable doubt when the State failed to establish that codefendant's "gun" was a dangerous weapon. He next contends that his sentence is excessive and that the trial court erred when it considered unreliable evidence of another crime. Defendant finally contends that his sentence is unconstitutionally disparate to the seven-year sentence received by his codefendant. We affirm. ¶ 3 Defendant and codefendant William McDuffie were charged with aggravated vehicular hijacking following a September 2008 incident during which a gun was pointed at the victim Laquesha Martin and her Dodge Charger was taken. Codefendant subsequently entered a plea of guilty to aggravated vehicular hijacking and was sentenced to seven years in prison. Defendant proceeded to a bench trial. ¶ 4 The victim testified that after parking her vehicle, she began walking toward her house. Upon remembering that she left her bag in the vehicle, she turned around, returned to the vehicle, and opened the back driver's side door. The victim retrieved her bag and turned around to discover a man, later identified as codefendant, with a "gun." Codefendant told her to give him everything she had and she would be "straight." It was 7:10 p.m., and light outside, so the victim could see codefendant from where he stood about a foot away. He held a gun, which was pointed at the victim's stomach, in his right hand. The victim, who was pregnant, was able to get a good look at the gun. It was black and the victim assumed that it was an automatic rather than a revolver because it did not have a "barrel." ¶ 5 When the victim turned toward the other side of the car, she saw defendant. Defendant told her not to look at him. She then turned back around and codefendant repeated his instruction to give him everything. When she looked at defendant a second time, he again told her not to look at him. Defendant did not have a gun. The victim also saw a gray SUV that had pulled up behind her vehicle. At that point, the victim realized that she was "really" being robbed, put her head down and gave codefendant her keys, phone, and bag. She dropped to the ground, waited until her car and the SUV drove off, and then went to a neighbor's house to call the police. She gave the police a description of the vehicle, and subsequently identified defendant in a line-up. ¶ 6 During cross-examination, the victim denied telling a police officer that the man with the gun told her to put her stuff down and not to look at him. She explained that this statement combined what the two men said to her. ¶ 7 Officer Claflin testified that he was at a gas station when he saw a vehicle matching the description of one stolen earlier that evening. He moved closer and determined that the license plates matched. It appeared that three individuals were inside the vehicle. When the driver, who had just entered the gas station, saw Claflin, he went back to the vehicle and drove away. Claflin pursued the vehicle and contacted the Harvey police department for assistance. Claflin lost sight of the vehicle, and when he saw the vehicle again the doors were open and it was empty. As he and another officer attempted to set up a perimeter, Claflin heard two gunshots and went in that direction. He saw an officer pursuing defendant on foot. That officer ultimately caught up with defendant, and defendant was taken into custody. ¶ 8 Detective Tony Padron testified that after speaking with defendant, codefendant was located and taken into custody. As the result of a subsequent conversation with codefendant, Calvin Edwards was taken into custody. Padron then contacted the victim. She later identified defendant and codefendant in a line-up. ¶ 9 Officer Johnson testified that during an interview the victim stated that the man who took her vehicle at gunpoint told her to put her stuff down and not to look at him. She did not indicate that the second man said anything. ¶ 10 Ultimately, the trial court found defendant guilty of aggravated vehicular hijacking. At sentencing, the State presented the testimony of Detective Mitch Growe. Growe testified that in December 2007 he was assigned to the investigation of an aggravated vehicular hijacking. After speaking to the victim in that case, Growe met with defendant and advised defendant of his Miranda rights. During a subsequent conversation, defendant said that he had been out with three individuals looking for a car to steal, that they followed a car to a car wash, and that they then robbed the victim of the car at gun point. When driving around, they were followed by police officers and later taken into custody. Growe acknowledged during cross-examination that defendant did not admit to possessing a firearm or memorialize his statement in writing. The victim's impact statement was also read to the court. The victim indicated that she was eight months pregnant when codefendant pointed a gun at her abdomen, and she feared not only for her life, but for that of her unborn child. ¶ 11 The State then argued that although defendant did not have any prior felony convictions, he committed the instant offense while on bond for an unrelated aggravated vehicular hijacking and deserved a sentence close to the maximum. The defense responded that codefendant, who was the person with a gun, entered a guilty plea and was sentenced to seven years in prison. The defense further argued that defendant was only 21 years old at the time of the offense, was essentially still a child, and should be sentenced to the minimum sentence. After hearing all the factors in aggravation and mitigation and reviewing the presentence investigation report, the court noted defendant's youth and lack of previous felony convictions. The court then stated that defendant had several prior misdemeanor charges, was not a "newcomer" to the "system," and had previously received "the benefits of various breaks." In sentencing defendant to 19 years in prison, the court noted in aggravation that the victim in this case was visibly pregnant and that defendant had been involved in another "similar" type of incident. ¶ 12 On appeal, defendant contends that his conviction for aggravated vehicular hijacking must be reduced because the State failed to establish that codefendant's gun was a dangerous weapon. ¶ 13 In assessing the sufficiency of the evidence, the relevant inquiry is whether, considering the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Ross, 229 Ill. 2d 255, 272 (2008). This court does not retry the defendant or substitute its judgment for that of the trier of fact with regard to the credibility of witnesses, the weight to be given to each witness's testimony, and the reasonable inferences to be drawn from the evidence. Ross, 229 Ill. 2d at 272. A defendant's conviction will not be set aside unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt as to his guilt. People v. Siguenza-Brito, 235 Ill. 2d 213, 225 (2009). ¶ 14 Here, the victim testified that codefendant pointed a black gun at her stomach, that she was able to get a good look at it, and that it was probably an automatic because it did not have a barrel, i.e., a cylinder, like a revolver. Taking the evidence in the light most favorable to the State, this court cannot say that no rational trier of fact could have found that codefendant possessed a gun. Ross, 229 Ill. 2d at 272. ¶ 15 Defendant, on the other hand, contends that the State failed to establish that codefendant's gun was dangerous when no evidence indicated that it was loaded or operable, that it was used to bludgeon the victim, or that it could be used in a dangerous manner. ¶ 16 Our supreme court has defined a "dangerous weapon" to include "(1) objects that are dangerous per se, such as loaded guns; (2) objects that are not necessarily dangerous, but were actually used in a dangerous manner * * *; and (3) objects that are not necessarily dangerous, but may become dangerous when used in a dangerous manner." Ross, 229 Ill. 2d at 275. Whether an object constitutes a dangerous weapon is generally a question of fact. Ross, 229 Ill. 2d at 275-76. ¶ 17 Defendant contends that the outcome of this case is controlled by People v. Ross, 229 Ill. 2d 255 (2008). In Ross, although the victim testified that the defendant pointed a gun at him during the robbery, the "gun" recovered by the police was a BB gun. Our supreme court determined that the evidence in that case was insufficient to prove that the BB gun was a "dangerous weapon" because there was no evidence regarding the BB's gun's weight and composition or whether it was loaded. Ross, 229 Ill. 2d at 276-77. See also People v. McBride, 2012 IL App (1st) 100375, ¶ 49 (concluding that a rational trier of fact could have found that defendant's gun was of a size and weight sufficient to cause bleeding and was therefore used, within the meaning of Ross, in a dangerous manner). ¶ 18 This court is unpersuaded by defendant's reliance on Ross, as the evidence in that case established that the "gun" in question was actually an unloaded BB gun. In the case at bar, there is nothing in the record to suggest that the gun codefendant pointed at the victim was anything other than a loaded operable handgun. Accordingly, this court finds the reasoning of People v. Washington, 2012 IL 107993, more persuasive. ¶ 19 In that case, the victim testified that the defendant held a gun to his head. Washington, 2012 IL 107993, ¶ 10. Our supreme court determined that the victim's testimony and the circumstances under which he was able to see the gun was such that the jury could have reasonably inferred that the defendant had a real gun because, unlike Ross, there was no real dispute at trial as to whether the defendant had a gun. Washington, 2012 IL 107993, ¶ ¶ 35-36. See also People v. Malone, 2012 IL App (1st) 110517, ¶¶ 51, 52 (when the only evidence at trial was that defendant was armed with a "real gun," the victim's testimony that the defendant rested a gun on the counter and that it "looked like a gun," as well as the circumstances under which the victim viewed the gun and a videotape of the offense supported a finding that the defendant was armed with a gun). ¶ 20 Similarly, here, there is no evidence in the record to suggest that codefendant's gun was anything other than a "real gun" when the victim testified that codefendant pointed a black gun at her abdomen and that she could see the gun because codefendant was only about a foot away. Washington, 2012 IL 107993, ¶ ¶ 35-36. ¶ 21 Here, as in Washington, taking the victim's testimony and the circumstances under which she was able to observe the gun in the light most favorable to the State, a rational trier of fact reasonably could have inferred that codefendant possessed a "real gun," i.e., a dangerous weapon. (Washington, 2012 IL 107993, ¶¶ 35-37). Ultimately, this court reverses a defendant's conviction only when the evidence is so improbable or unsatisfactory that it creates a reasonable doubt as a defendant's guilt (Siguenza-Brito, 235 Ill. 2d at 225), this is not one of those cases. Consequently, we affirm defendant's conviction. ¶ 22 Defendant next contends that his sentence must be reduced. He argues that his 19-year sentence is excessive in light of the fact that he was not armed and the victim was not injured. He further contends that the trial court erred when it relied on unreliable evidence of his participation in a similar crime. Defendant finally argues that his sentence is disparate to the seven-year sentence received by codefendant. ¶ 23 Defendant admits that he has forfeited these contentions on appeal because he failed to object before the trial court, but urges this court to review his contentions for plain error. In the alternative, defendant contends that he was denied effective assistance of counsel when counsel failed to raise these points before the trial court. ¶ 24 The plain error doctrine permits this court to address unpreserved errors "when either (1) the evidence is close, regardless of the seriousness of the error, or (2) the error is serious, regardless of the closeness of the evidence." People v. Herron, 215 Ill. 2d 167, 186-87 (2005). The first step in determining whether the plain error doctrine applies is to determine whether any reversible error occurred. People v. Patterson, 217 Ill. 2d 407, 444 (2005). ¶ 25 A trial court has broad discretion at sentencing and its determination will not be disturbed absent an abuse of that discretion. Patterson, 217 Ill. 2d at 448. A sentence within the statutory range will not be considered excessive unless it varies greatly from the spirit of the law or is manifestly disproportionate to the nature of the offense. People v. Brazziel, 406 Ill. App. 3d 412, 433-34 (2010). When balancing the retributive and rehabilitative aspects of a sentence, a court must consider all factors in aggravation and mitigation including, inter alia, a defendant's age, habits, credibility, criminal history, character, education, and environment, as well as the nature and circumstances of the crime and the defendant's actions in the commission of that crime. People v. Raymond, 404 Ill. App. 3d 1028, 1069 (2010). A reviewing court should not substitute its judgment for that of the trial court merely because it may have analyzed the sentencing factors differently. People v. Streit, 142 Ill. 2d 13, 19 (1991). ¶ 26 Here, defendant was convicted of aggravated vehicular hijacking (720 ILCS 5/18-4(a)(3) (West 2008)), a Class X felony with an applicable sentencing range of between 7 and 30 years in prison (see 720 ILCS 5/18-4(b) (West 2008); 730 ILCS 5/5-8-1(a)(3) (West 2008)). ¶ 27 The record reveals that at sentencing, the parties presented evidence in aggravation and mitigation including, that defendant was involved in a similar offense in the past, that he was not armed during the commission of this offense, and that he had no prior felony convictions. In sentencing defendant, the court noted that although defendant did not have any felony convictions, defendant had prior misdemeanor charges and had not taken advantage of "the benefits of various breaks" in the past. This court cannot say that a prison sentence of 19 years was an abuse of discretion when defendant and codefendant used a gun to take the purse and vehicle of the victim. See Patterson, 217 Ill. 2d at 448 (a trial court has broad discretion in sentencing). ¶ 28 The trial court is not required to explain the value the court assigned to each factor in mitigation and aggravation (Brazziel, 406 Ill. App. 3d at 434). It is presumed that the court properly considered the mitigating factors presented and the defendant's potential for rehabilitation; it is the defendant's burden to show otherwise. Brazziel, 406 Ill. App. 3d at 434. In the case at bar, defendant cannot meet that burden, as he points to nothing in the record to indicate that the court did not take the facts that he was unarmed and the victim uninjured into consideration at sentencing. See Brazziel, 406 Ill. App. 3d at 434. Ultimately, the trial court did not abuse its discretion when, after properly considering factors in mitigation and aggravation (Brazziel, 406 Ill. App. 3d at 433-34), it sentenced defendant to 19 years in prison (Patterson, 217 Ill. 2d at 448). ¶ 29 Defendant next contends that the trial court erred when it considered Growe's testimony that defendant admitted to committing a similar offense because the testimony was unreliable. He argues that the only evidence of this prior offense was the detective's testimony as opposed to defendant's inculpatory statement or the testimony of a witness. ¶ 30 The evidentiary standards used at sentencing are much less rigid than those used in the guilt or innocence phase of trial because a defendant's guilt has been settled and the trial court is tasked with determining the type and extent of the defendant's punishment. People v. Jackson, 149 Ill. 2d 540, 547-48 (1992). Therefore, the trial court may inquire into a defendant's moral character, habits, age, family life, occupation, criminal record, and natural inclination or aversion to commit crime. People v. Harris, 375 Ill. App. 3d 398, 408-09 (2007), aff'd, 231 Ill. 2d 582 (2008). The court may consider not only the defendant's prior convictions, but also crimes for which the defendant has not been convicted or prosecuted (Jackson, 149 Ill. 2d at 548), and evidence of crimes of which the defendant has been acquitted (Harris, 375 Ill. App. 3d at 409). Evidence of prior criminal conduct is admissible at a sentencing hearing "even though it was not adjudicated" if it is relevant, reliable, and subject to cross-examination. People v. Thomas, 137 Ill. 2d 500, 547 (1990). The determination of whether evidence is reliable and relevant rests within the trial court's sound discretion. Harris, 375 Ill. App. 3d at 409. ¶ 31 At sentencing, Growe testified, under oath, that defendant stated that he was part of a group that took a car from an individual at gunpoint. Growe admitted, during cross-examination, that defendant did not admit to the possession of a firearm and did not reduce his statement to writing. Here, the trial court did not abuse its discretion when its inquiry into defendant's natural inclination or aversion to commit crime and criminal record (Harris, 375 Ill. App. 3d at 408-09), included inquiry into crimes for which defendant had not been prosecuted or convicted (Jackson, 149 Ill. 2d at 548). ¶ 32 Defendant finally contends that his 19-year sentence is unconstitutionally disparate because codefendant, who actually held the gun, was only sentenced to 7 years in prison. ¶ 33 Although similarly situated defendants should not receive grossly disparate sentences, a mere disparity in the sentences, in and of itself, is not sufficient to constitute a violation of fundamental fairness. People v. Spriggle, 358 Ill. App. 3d 447, 455 (2005). A difference may be justified by a defendant's degree of culpability, potential for rehabilitation, or criminal history (Spriggle, 358 Ill. App. 3d at 455). Generally, however, a sentence imposed on a codefendant following the entry of a guilty plea does not provide a valid basis of comparison to a sentence imposed following a trial. People v. Scott, 2012 IL App (4th) 100304, ¶ 25. ¶ 34 In the case at bar, defendant was convicted of a Class X felony and sentenced to 19 years in prison following a trial. Codefendant, on the other hand, was sentenced to seven years in prison following the entry of a guilty plea. Consequently, codefendant's sentence does not provide a valid basis of comparison to defendant's sentence. See Scott, 2012 IL App (4th) 100304, ¶ 25; see also People v. Portis, 147 Ill. App. 3d 917, 926 (1986) (sentences reached as part of plea agreements cannot be a basis for comparison with sentences reached after a trial). ¶ 35 Defendant concedes that there is "conflicting authority" as to whether, when determining whether a disparity exists between sentences, a court may compare a sentence imposed after trial to one imposed pursuant to a plea agreement. However, he urges this court to follow the reasoning of People v. Jackson, 145 Ill. App. 3d 626 (1986), People v. Daniels, 173 Ill. App. 3d 752 (1988), and People v. Milton, 182 Ill. App. 3d 1082 (1989), to conduct such a comparison. However, of these cases, only the Milton court considered a codefendant's guilty plea in its analysis of the sentencing disparity. See Jackson, 145 Ill. App. at 646-47 (reducing defendant's sentence when defendant was not the initiator of the crime and codefendant, who entered a guilty plea, was "the more active participant in a brutal and heinous crime"); Daniels, 173 Ill. App. 3d at 755-56 (reducing the defendant's sentence when it was codefendant, who pled guilty before trial and testified against the defendant, who took molding from a door frame and beat a woman during a home invasion). The others are therefore unpersuasive. ¶ 36 In Milton, the court found the defendant's 30-year sentence, imposed following a trial, was excessive in comparison to his codefendant's 8 1/2-year sentence imposed in exchange for a guilty plea. Milton, 182 Ill. App. 3d at 1093-95. The court determined that the facts that codefendant was unarmed, entered a guilty plea, and agreed to testify against the defendant, justified a "different" sentence for the defendant, but that a difference of more than 21 years was "too great." Milton, 182 Ill App 3d at 1095. The court therefore reduced the defendant's sentence to 12 years in prison. Milton, 182 Ill. App. 2d at 1096. ¶ 37 However, in People v. Garcia, 231 Ill. App. 3d 460, 478-79 (1992), the court concluded that the sentence in Milton was reduced not due to sentencing disparity, but, rather, because the defendant was young and had no prior record, the victim was not injured, and the trial court relied on dubious factors. Garcia, 231 Ill. App. 3d at 479. In light of the facts of Milton, the Garcia court concluded that the imposition of the maximum sentence in that case appeared to be excessive regardless of any comparison with the codefendant's sentence. Garcia, 231 Ill. App. 3d at 479. Therefore, the court concluded that Milton did not modify the general rule that a sentence imposed after a guilty plea does not form a valid basis of comparison with respect to a sentence imposed after a trial, adhered to that rule, and found no abuse of discretion in the defendant's 45 year sentence, even though his codefendants received 25 and 4 year sentences following guilty pleas. Garcia, 231 Ill. App. 3d at 478-79. ¶ 38 Similarly, in People v. Scott, 2012 IL App (4th) 100304, the defendant argued, relying on Milton, that his sentence was impermissibly disparate with respect to that of his codefendant. The court first reiterated that generally a sentence imposed on a codefendant who entered a plea does not provide a valid basis of comparison to a sentence entered after a trial because the court may properly grant leniency to a person who pleads guilty, i.e., insures prompt application of correctional measures, acknowledges his guilt and shows a willingness to take responsibility for his conduct. Scott, 2012 IL App (4th) 100304, ¶ 25. The court then noted that the trial court's decision whether to "ratify" a plea agreement, made following negotiations between a defendant and the State, "differs qualitatively from its finding of an appropriate sentence following a trial and a sentencing hearing." Scott, 2012 IL App (4th) 100304, ¶ 25. The court then questioned the relevance of Milton to a sentencing-disparity argument in light of Garcia. Scott, 2012 IL App (4th) 100304, ¶ 29. Ultimately, the court rejected the defendant's argument that a comparison with his codefendant's sentence, received after a plea, could establish that his sentence was excessive because a sentence imposed following a guilty plea provides no valid basis for comparison with respect to a sentence imposed following a trial. Scott, 2012 IL App (4th) 100304, ¶ 29. ¶ 39 In the case at bar, this court finds the reasoning of Garcia and Scott persuasive and rejects defendant's argument that his sentence, received after trial, is disparate when compared to that received by his codefendant pursuant to a plea agreement because a sentence imposed following a guilty plea does not provide a valid basis for comparison with respect to a sentence imposed after trial. See Scott, 2012 IL App (4th) 100304, ¶¶ 25, 29. ¶ 40 Because defendant has failed to demonstrate that the trial court erred (Herron, 215 Ill. 2d at 186-87), his procedural default must be honored. Defendant's claim of ineffective assistance of counsel must also fail as the "failure to object to proper conduct cannot render counsel constitutionally ineffective." People v. Wilson, 404 Ill. App. 3d 244, 250 (2010). ¶ 41 For the reasons stated above, we affirm the judgment of the circuit court of Cook County. ¶ 42 Affirmed.
Codefendant is not a party to this appeal.