Opinion
4-23-0086
12-05-2023
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TEVIN L. CURRIE, Defendant-Appellant.
This Order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Woodford County No. 21CF42 Honorable Charles M. Feeney III, Judge Presiding.
ZENOFF, JUSTICE delivered the judgment of the court. Justices Doherty and Lannerd concurred in the judgment.
ORDER
ZENOFF, JUSTICE
¶ 1 Held: The appellate court affirmed defendant's five-year prison sentence upon the revocation of his probation, as the record showed the trial court did not abuse its discretion because it sentenced defendant for the underlying offenses, not for his conduct while on probation.
¶ 2 Defendant, Tevin L. Currie, appeals from the trial court's judgment sentencing him to 5 years in prison for unlawful possession of less than 15 grams of cocaine (720 ILCS 570/402(c) (West 2020)) (count I) and 300 days in the county jail for unlawful possession of less than 100 grams of cannabis (720 ILCS 550/4(c) (West 2020)) (count II). Defendant argues the court erred because it sentenced him based on conduct while on probation rather than for the underlying offenses. We affirm.
¶ 3 I. BACKGROUND
¶ 4 In March 2021, the State charged defendant with the aforementioned offenses. The charges arose from a traffic stop for no rear registration light. After the stop, the deputy detected a strong odor of cannabis from the vehicle. A search of the vehicle revealed cocaine and cannabis in bags.
¶ 5 Defendant pleaded guilty to both counts on August 27, 2021. He received concurrent sentences of 30 months' probation on count I, a Class 4 felony, and 24 months' probation on count II, a Class A misdemeanor. The terms of probation included not violating any criminal statute, not possessing or being under the influence of any unlawful substance, and successfully completing the recommended substance abuse treatment.
¶ 6 A. Petition to Revoke Probation
¶ 7 On November 10, 2021, the State filed a petition to revoke defendant's probation. The State alleged defendant violated probation conditions by committing new criminal offenses, including (1) aggravated battery and battery on September 13, 2021, (2) speeding 35 miles per hour over the speed limit on October 7, 2021, and (3) unlawful use of cannabis by a driver on October 7, 2021.
¶ 8 The trial court arraigned defendant on the petition to revoke probation on December 10, 2021. The court explained the allegations in the petition and informed defendant he could be "resentenced on these underlying offenses." The court then recited the charges in count I and count II and the possible sentences, including the possibility of an extended-term prison sentence. Defendant requested time to obtain counsel, and the court continued the case.
¶ 9 At the continued arraignment on June 15, 2022, the trial court explained the allegations in the petition to revoke, the underlying charges in each count, and the possible sentences, and it said that defendant "can be resentenced on those two offenses." Defendant requested more time to obtain counsel. The court continued the case to July 6, 2022.
¶ 10 On July 6, 2022, defendant informed the trial court he was unable to pay for counsel. The court appointed the public defender. The court continued the case to August 4, 2022.
¶ 11 On August 4, 2022, defendant admitted the first allegation in the petition to revoke probation: committing the new offenses of aggravated battery and battery on September 13, 2021. The State dismissed the other allegations in the petition to revoke probation. The trial court explained the underlying charges in counts I and II and the possible sentences. The State then provided a factual basis for the offenses of aggravated battery and battery, including that defendant pleaded guilty to those new charges. The court accepted defendant's admission, finding it was knowing and voluntary and there was a factual basis supporting that admission. The court granted the petition, ordered the presentence investigation report (PSI), and set a sentencing hearing.
¶ 12 The PSI detailed defendant's criminal history beginning in 2015. Defendant had eight felony convictions: (1) burglary in 2017, (2) theft in 2018, (3) reckless driving in 2020, (4) threatening a public officer in 2020, (5) aggravated battery in a public place in 2020, (6) unlawful possession of a controlled substance in 2021 (the case at bar), (7) aggravated battery in a public place in 2021, and (8) another aggravated battery in a public place in 2021. Defendant presently was on probation in three of the felony cases. Defendant also had a misdemeanor conviction on his record for driving under the influence of a drug, six traffic convictions, and the two pending traffic cases cited in the petition to revoke probation. Defendant was unemployed. He had no children or spouse. He did not believe he had any substance abuse issues. He completed a substance abuse evaluation. While treatment was recommended, he did not complete treatment.
¶ 13 B. Sentencing Hearing
¶ 14 On September 8, 2022, the trial court held a sentencing hearing. The court acknowledged its receipt of the PSI, and neither party had any additions or corrections. The State called a sheriff's deputy to testify about the October 7, 2021, traffic stop. The deputy testified he stopped a car going 99 miles per hour in a 55 mile-per-hour zone. Defendant drove the car with three passengers, and there was a strong smell of cannabis inside the car. The deputy found cannabis on the floorboard, in the center console, and in the rear hatch compartment. On crossexamination, the deputy acknowledged that other passengers had access to the areas of the car where he discovered cannabis.
¶ 15 Defendant made a statement in allocution acknowledging he was not supposed to get in trouble. He stated he had a job interview for a union job as an electrician. He wanted to pursue that career. He acknowledged he did not complete his alcohol classes but planned to do so. He wanted another chance and stated he would not mess up.
¶ 16 The State argued, "defendant is being resentenced for a-Count I was an unlawful possession of a controlled substance Class 4 felony, and Count II is a cannabis case, misdemeanor. The-Class A misdemeanor. The defendant was ordered not to possess cannabis. Not to possess, not to consume." The State argued defendant violated the terms of his probation by committing new offenses. Defendant was extended-term eligible, and the State asked for a four-year prison sentence.
¶ 17 Defendant's counsel argued for a sentence of 180 days in jail based on the nonviolent nature of the charges and the opportunity for defendant to pursue a job in the electrical union.
¶ 18 In issuing its sentencing decision, the trial court stated it had considered (1) the fact that defendant pleaded guilty, (2) the factual basis at the time of the plea, (3) evidence in aggravation and mitigation, (4) defendant's statement on his own behalf, and (5) arguments as to sentencing alternatives. The court reviewed defendant's criminal history, including the seven felony convictions in addition to this case in the past five years.
¶ 19 After reviewing defendant's felony criminal history through 2020, the trial court detailed defendant's conduct since being charged in the present case. The court stated that the underlying offenses were
"followed by two more aggravated batteries subsequent to this case, for which [he] now has four crimes of violence.
In looking at this case, based on the multiple felonies preceding it, he is extended-term eligible. He was charged in this case. The aggravated battery, the first one, 21-CF-191 out of Henry County, that was committed while he was on bond in this case. And then he is sentenced in this case on August 27th of 2021, and less than a mere-less than a month-two weeks, basically, after he is sentenced in this case, two lousy weeks, he commits an aggravated battery in a public place."
¶ 20 The trial court stated defendant did not complete his substance abuse treatment as required by probation, and he continued to consume cannabis and cocaine. The court then questioned why defendant was driving 99 miles per hour with reckless disregard for his passengers and others on the roadway. The court stated society had a right to avoid violence and expect concern from their fellow man. The court stated the following:
"And the court has considered the circumstances of this offense and, most significantly, the history, character, and condition of the offender. I find the defendant to be an incorrigible criminal who acts without any regard for others and total regard for himself. And I think his statement in allocution today well
punctuates that. He never told me he learned anything. He never indicated a desire to change. His statement was I've got a job opportunity, and I would like-it's all about me, Judge. I would like that job opportunity.
And so I'm sentencing the defendant to five years in the Illinois Department of Corrections. And as to the Count I, $1,000 fine as previously imposed. As to Count II, he is sentenced to 300 days in the Woodford County jail, which will be concurrent on Count I, and a $500 fine. Defendant's probation is revoked as unsuccessful."
¶ 21 Defense counsel did not object to the trial court's comments at the sentencing hearing.
¶ 22 C. Motion to Reconsider
¶ 23 On October 5, 2022, defendant filed a motion to reconsider, arguing the sentence was excessive. In support of this motion, defendant asked the trial court to consider that (1) the offense neither caused nor threatened physical harm to another, (2) he volunteered as a high school basketball coach for summer leagues, (3) he was ready to start an apprenticeship with the electrical union, (4) his girlfriend was pregnant and he had to support the unborn child, (5) he helped his grandparents with rides, translation, and bills, (6) he understood he had a substance abuse issue and was willing to get treatment, and (7) he asked for a sentence at the lower end, with consideration of bootcamp or probation with house arrest and substance abuse treatment. He did not allege the court erred by sentencing him exclusively for conduct that occurred while on probation.
¶ 24 On January 30, 2023, the trial court held a hearing on the motion to reconsider. The court denied the motion to reconsider but amended the sentencing order to show defendant should have received 67 days of pretrial detention credit instead of 3days.
¶ 25 Defendant's appeal followed.
¶ 26 II. ANALYSIS
¶ 27 Defendant argues the trial court abused its discretion in resentencing him to 5 years in prison and 300 days in jail where the court gave no consideration to the original offenses and instead punished him exclusively for conduct that occurred while on probation.
¶ 28 A. Forfeiture of the Issue
¶ 29 As an initial matter, the parties disagree whether defendant forfeited his argument by failing to include it in his motion to reconsider. However, defendant also invokes the plain error doctrine. We do not need to address this issue of forfeiture, however, as there was no error, let alone plain error. Specifically, irrespective of whether the issue is preserved, the record shows that the trial court properly sentenced defendant for the underlying offenses, not for his conduct while on probation.
¶ 30 B. Plain Error Review
¶ 31 "To prevail under the plain error doctrine, the defendant must first demonstrate a clear and obvious error occurred." People v. Galarza, 2023 IL 127678, ¶ 45. If a clear and obvious error occurred,
"this court will only reverse where (1) the evidence is so closely balanced that the error alone threatened to tip the scales of justice against the defendant, regardless of the seriousness of the error or (2) the error is so serious that it affected the fairness of the defendant's trial and challenged the integrity of the judicial process,
regardless of the closeness of the evidence." (Internal quotation marks omitted.) Galarza, 2023 IL 127678, ¶ 45.Here, defendant invokes both prongs of plain error, asserting that the evidence at sentencing was both closely balanced and the error so serious it affected the fairness of his sentence. Defendant bears the burden of persuasion. People v. Piatkowski, 225 Ill.2d 551, 565 (2007). Before there can be plain error, we must determine if a "clear or obvious error occurred." Galarza, 2023 IL 127678, ¶ 46.
¶ 32 Relying on People v. Varghese, 391 Ill.App.3d 866 (2009), defendant contends that the trial court improperly sentenced him because it erroneously relied upon his conduct while on probation. While defendant acknowledges that criminal history is a relevant consideration at a sentencing hearing, he argues the evidence weighed in favor of a sentence "closer to the minimum."
¶ 33 Specifically, defendant highlights such mitigating factors as (1) his substance abuse issue, (2) the drug possession did not harm another, (3) he would become a father, (4) he "was looking forward to a career as an electrician," and (5) he had strong ties to his community. Defendant contends this shows "he is unlikely to commit further crimes." He goes on to argue the trial court improperly enhanced his sentence for prior offenses. In addition, he argues that the disparity between the original probation sentence, the State's recommended four-year sentence after his probation was revoked, and the final sentences demonstrates that he was punished for conduct while on probation, rather than his original offenses.
¶ 34 The State also relies on Varghese, arguing the trial court did not err in sentencing defendant because it merely considered his conduct on probation as it related to his rehabilitative potential.
¶ 35 In Varghese, the defendant pleaded guilty to aggravated criminal sexual abuse and received sex offender probation. Varghese, 391 Ill.App.3d at 868. His probation was revoked, and he was sentenced to seven years in prison, after conflicting testimony that he allegedly lured a minor with the intent to engage in another act of criminal sexual abuse. Varghese, 391 Ill.App.3d at 868-72. The appellate court recognized that, while the trial court cannot punish a defendant solely for conduct that was the basis of probation, the "trial court was authorized to consider defendant's conduct while he was on probation as evidence of his capacity for rehabilitation." Varghese, 391 Ill.App.3d at 877. In doing so, a court may give a defendant a more severe sentence than it originally imposed. Varghese, 391 Ill.App.3d at 876. The appellate court explained that relevant factors to consider in reviewing a sentence issued after the revocation of probation include (1) whether the sentence was within the proper statutory range, (2) the consistency of the sentence with other defendants of similar backgrounds, and (3) whether the record clearly shows the court considered the original offense. Varghese, 391 Ill.App.3d at 876. The court noted that reviewing courts are to look to the trial court's remarks during sentencing. Varghese, 391 Ill.App.3d at 876. The court explained that, in context, the trial court's references to "this conduct" referred to the defendant's conduct while on probation. Varghese, 391 Ill.App.3d at 877. The appellate court further noted that the trial court sentenced defendant after a lengthy discussion of the uncharged conduct while on probation. Varghese, 391 Ill.App.3d at 877. The court in Varghese found that the totality of the trial court's remarks indicated that it did not consider the underlying offenses in resentencing the defendant. Varghese, 391 Ill.App.3d at 877.
¶ 36 Varghese is distinguishable since the record in this case clearly shows the trial court considered the original offenses in fashioning the sentence. The sentences imposed were within the statutory ranges for the underlying offenses since defendant was extended-term eligible. See 730 ILCS 5/5-4.5-45(a), 55(a) (West 2022). The court stated that it considered the original guilty plea, the factual basis at the time of the plea, evidence and information in aggravation and mitigation, defendant's statement in allocution, and sentencing alternatives. Here, the court referenced "this case" six times at the sentencing hearing. When the court referenced "this case," it highlighted the original date of sentencing for the underlying offenses. The court also referenced criminal charges and convictions before and after the original sentencing date. In both the totality of the record and specific mentions of dates, the court was referring to the underlying drug possession offenses when referencing "this case." The court also explicitly referenced counts I and II when issuing the final sentences.
¶ 37 Additionally, the trial court discussed defendant's criminal history only as it related to his rehabilitative potential. Defendant's history included the felony aggravated battery that he had already pleaded guilty to and admitted to in the petition to revoke his probation. This is distinguishable from Varghese, where the allegations in the petition to revoke probation were uncharged and had not yet resulted in convictions. In the instant case, defendant had three felony aggravated battery convictions from 2020 to 2021, including the one at issue in the petition to revoke probation. In the context of the court's sentencing decision, the court highlighted this criminal history to emphasize that defendant was extended-term eligible, he did not follow the terms of his probation, and he did not show rehabilitative potential.
¶ 38 We find People v. Pina, 2019 IL App (4th) 170614, to be instructive. In Pina, the defendant pleaded guilty to unlawful delivery of a controlled substance for selling one gram of cocaine and was sentenced to 30 months' probation. Pina, 2019 IL App (4th) 170614, ¶ 1. The State filed a series of petitions to revoke probation based on the defendant's continued drug use. Pina, 2019 IL App (4th) 170614, ¶¶ 6-8. In the fourth petition to revoke probation, the State alleged defendant's failure to report to probation and four instances of cocaine use. Pina, 2019 IL App (4th) 170614, ¶¶ 8-9. At the revocation and resentencing hearing, the defendant argued she was not violent, did not cause harm to others, suffered from addiction, made bad choices, and wanted another chance. Pina, 2019 IL App (4th) 170614, ¶ 11. The court revoked her probation and sentenced her to five years in prison. Pina, 2019 IL App (4th) 170614, ¶ 12. The appellate court affirmed the sentence. Pina, 2019 IL App (4th) 170614, ¶ 1. The court concluded that the trial court properly punished the defendant for the underlying offense, not for her conduct while on probation, and that the defendant's conduct while on probation "reflected negatively on her rehabilitative potential." Pina, 2019 IL App (4th) 170614, ¶¶ 24, 31. The court found that at the time of resentencing, the defendant showed that she was "continuously noncompliant with the terms of her probation." Pina, 2019 IL App (4th) 170614, ¶ 36. Thus, she was "not in the same position she was in at the original sentencing hearing, and the court was not required to ignore evidence related to the violations of her probation." Pina, 2019 IL App (4th) 170614, ¶ 36.
¶ 39 Here, defendant was also not in the same position as he was at his original sentencing hearing. After he was originally sentenced for the underlying offenses on August 27, 2021, he was convicted of and sentenced for five felonies, including: threatening a public officer, reckless driving, and three separate aggravated batteries in a public place. Three of these felonies were pending criminal cases at the time of the original sentencing hearing. By the time of the resentencing hearing in 2022, defendant had five new felony convictions. The trial court's review of this extensive criminal history in a short time frame was relevant to defendant's rehabilitative potential and was an appropriate sentencing consideration. The court also explicitly acknowledged that it was sentencing defendant for the original, underlying offenses.
¶ 40 Despite defendant's arguments, the record shows the trial court expressly considered all the evidence in aggravation and mitigation. The record shows the court considered defendant's five new felony convictions since his original sentence to show he was likely to commit other crimes. The court stated that it "considered the circumstances of this offense and, most significantly, the history, character, and condition of the offender." Relevant sentencing factors include the defendant's demeanor, credibility, social environment, age, mentality, and moral character. People v. Snyder, 2011 IL 111382, ¶ 36. Absent explicit evidence to the contrary, we presume the court considered all mitigating factors. People v. Harris, 2015 IL App (4th) 140696, ¶ 57. Here, the court's statements show it considered that factors in aggravation showed his lack of rehabilitative potential and the need for deterrence. It is left to the sound discretion of the trial court to decide the weight of the sentencing purposes of retribution, deterrence, incapacitation, and rehabilitation in each case. People v. Page, 2022 IL App (4th) 210374, ¶ 52. The reviewing court will not disturb a trial court's sentencing decision unless it is greatly at variance with the spirit or purpose of the law or disproportionate to the nature of the offense. Page, 2022 IL App (4th) 210374, ¶ 52.
¶ 41 We find no merit in defendant's argument that the 5-year prison term on count I and 300 days in jail on count II were intended to punish him for conduct while on probation rather than for the underlying offense. Since we find no clear and obvious error by the court, there can be no plain error. Galarza, 2023 IL 127678, ¶ 52.
¶ 42 In conclusion, defendant's arguments are not subject to plain error review as no clear and obvious error occurred. Even were we to deem defendant's sentencing argument preserved, for the same reasons articulated above, defendant has failed to show reversible error.
¶ 43 III. CONCLUSION
¶ 44 For the reasons stated, we affirm the trial court's judgment.
¶ 45 Affirmed.