Opinion
1-22-0823
09-29-2023
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RAUL MARTINEZ, 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 Cook County. No. 16 CR 8493 Honorable Alfredo Maldonado, Judge, Presiding.
PRESIDING JUSTICE ODEN JOHNSON delivered the judgment of the court. Justice Tailor concurred in the judgment. Justice Hyman dissented.
ORDER
ODEN JOHNSON, PRESIDING JUSTICE
¶ 1 Held: Trial court's imposition of a 14-year sentence for unlawful use of a weapon by a felon (UUWF) is affirmed where defendant failed to establish that: (1) his sentence was the result of a clear and obvious error which was required to invoke application of the plain error doctrine, and (2) the trial court considered an improper factor in aggravation when the sentence was within the trial court's discretion and was within the statutory range. Trial counsel was not ineffective for failing to challenge defendant's sentence on this basis where the record did not support such claim and defendant's sentence was within the statutory guidelines.
¶ 2 Following a jury trial, defendant Raul Martinez was convicted of first degree murder and unlawful use of a weapon by a felon (UUWF). He was originally sentenced to an aggregate, consecutive prison term of 105 years: 50 years for murder, 25 years for a firearm enhancement and a Class X sentence of 30 years for UUWF. On direct appeal, we affirmed in part and remanded for resentencing on defendant's UUWF conviction. On remand, defendant was sentenced to a 14-year prison term for his UUWF conviction. Defendant now appeals, contending that the trial court improperly considered an element inherent in the offense in aggravation. For the following reasons, we affirm.
¶ 3 The underlying facts were fully set forth in defendant's first appeal, People v. Martinez, 2021 IL App (1st) 182553, and will only be repeated to the extent necessary to resolve the current appeal. As noted above, defendant was convicted of first degree murder and UUWF in connection with the shooting death of Robert Roseneau on May 2, 2016. Id. ¶ 3. On direct appeal, defendant contended that: (1) the trial court erred in denying his motion in limine to present Lynch evidence of decedent's 2006 robbery conviction to support his self-defense claim, and (2) his Class X sentencing for UUWF was improper because it was based on an improper double enhancement and an offense that was no longer criminal. Id. ¶ 1. We affirmed defendant's convictions and sentences except for his UUWF sentence; we found that defendant's prior robbery conviction committed when he was 17 years old was not an offense that could serve as the basis for Class X sentencing for that offense. Id. ¶¶ 71, 64.
¶ 4 Defendant's new sentencing hearing was held on May 25, 2022. The State argued in aggravation that defendant's UUWF conviction was a Class 2 felony with a sentencing range of between 3 and 14 years imprisonment. The State noted that the predicate offense was another UUWF offense in case number 13 CR 2175101 where defendant was sentenced to three years' imprisonment, which in turn was based on a conviction for possession of a stolen motor vehicle (PSMV) in 2010 for which defendant was sentenced to four years' imprisonment. The State further noted defendant's prior robbery conviction when he was 17 years old that was not Class X eligible.
¶ 5 Defense counsel argued for the minimum sentence of three years and noted defendant's good conduct in prison and his familial support.
¶ 6 The trial court indicated that it remembered the facts of the case as it had presided over defendant's jury trial. The court also stated that it read the presentence investigation again and listened to the evidence presented in both aggravation and mitigation as well as considered the statutory factors in both aggravation and mitigation. The court noted that several of defendant's family members were present in court, which spoke to defendant's ties to the community. The court further noted that it weighed the factors in aggravation and mitigation, the facts of the case (which the court noted was entirely a firearms case), defendant's attitude and demeanor at trial, and defendant's substantial criminal record. The trial court also stated that it had previously sentenced defendant to a 30-year sentence when it believed defendant was Class X eligible, however, on remand, indicated that defendant was subject to a sentencing range between 3 and 14 years on a Class 2 felony that would be served consecutively to the other sentences and at 100% under truth and sentencing. The trial court then sentenced defendant to the maximum 14-year sentence, finding that it was appropriate under the circumstances in this case, considering all the evidence in aggravation and mitigation and the factual circumstances of the case.
¶ 7 Defense counsel sought leave to reconsider the sentence, which was filed later the same day. The trial court denied the motion, finding that no error occurred regarding the sentencing and that it correctly addressed factors in aggravation and mitigation. Defendant's timely notice of appeal was filed the same day.
¶ 8 On appeal, defendant contends that the trial court improperly considered an element of the offense as an element in aggravation. Specifically, defendant argues that the trial court considered the fact of the predicate felony in aggravation. Put another way, defendant is challenging his sentence for UUWF as excessive. Defendant acknowledged in his brief that this issue was not raised in his motion to reconsider sentence but contends that it can be considered under both prongs of plain error and alternately, under ineffective assistance of counsel.
¶ 9 A review of the record reveals that defendant is correct that this specific issue was not raised in the motion to reconsider sentence. Although defense counsel argued that the trial court incorrectly considered evidence in aggravation and mitigation, the motion did not argue that the trial court impermissibly considered an element of the offense in aggravation. Thus, defendant has forfeited review of this issue. People v. Enoch, 122 Ill.2d 176, 186-87; People v. Sauseda, 2016 IL App (1st) 140134, ¶ 11. A forfeited argument regarding sentencing may be reviewed for plain error. Sauseda, 2016 IL App (1st) 140134, ¶ 11. In order to obtain relief under the plain error doctrine, a defendant must first show that a clear or obvious error occurred. Id. In the sentencing context, a defendant must then show either that the evidence at the sentencing hearing was closely balanced, or the error was so egregious as to deny him a fair sentencing hearing. Id. The defendant bears the burden of persuasion under both prongs of the doctrine. Id.
¶ 10 We first determine whether there was any clear or obvious error. We review sentencing determinations for an abuse of discretion. People v. Cook, 2021 IL App (3d) 190243, ¶ 35. We will not disturb a sentence within the applicable sentencing range unless the trial court abused its discretion. Id.
¶ 11 Here, defendant's conviction for UUWF is a Class 2 felony, subject to sentencing between 3 and 14 years. Id. ¶ 36; 720 ILCS 5/24-1.1(a), (e) (West 2022). Defendant was sentenced to a 14-year sentence, which, although the maximum sentence for this offense, sentence was within the applicable statutory guidelines and is thus presumptively valid. Cook, 2021 IL App (3d) 190243, ¶ 36.
¶ 12 Nevertheless, defendant contends that his sentence was the result of the trial court's consideration of an element of the offense in aggravation. Specifically, he argues that, in aggravation, the trial court found that defendant's criminal background was "fairly substantial," but one of his prior Class 2 felonies was an element of the UUWF conviction. Defendant reasons that because there was no evidence that suggested anything about that prior conviction's nature or circumstances, and because, without this prior conviction his record was less substantial, this court should remand for resentencing. As noted above, defendant's argument amounts to an excessive sentence challenge. See People v. Johnson, 2019 IL 122956, ¶¶ 39-40.
¶ 13 A factor implicit in the offense for which a defendant is found guilty may not be considered as a factor in aggravation. Cook, 2021 IL App (3d) 190243, ¶ 47. Put another way, a single factor cannot be used both as an element of an offense and as a basis for imposing a harsher sentence than might otherwise have been imposed. Id. The dual use of a single factor, or double enhancement, is prohibited under the presumption that the legislature considered the factor when setting the sentencing range. Id. (citing People v. Phelps, 211 Ill.2d 1, 12 (2004)). There is a strong presumption that the trial court based its sentencing determination on proper legal reasoning, and it is the defendant's burden to affirmatively establish that the sentence was based on improper considerations. Id. In determining the correctness of the sentence, the reviewing court should not focus on a few words or statements made by the trial court, but is to consider the record as a whole. Sauseda, 2016 IL App (1st) 140134, ¶ 13. A trial court need not articulate the process by which it determines the appropriateness of a given sentence. People v. Martin, 2012 IL App (1st) 093506, ¶ 48. Instead, the court must consider the nature and circumstances of the crime, the defendant's conduct in the commission of the crime, and the defendant's personal history, including his age, demeanor, habits, mentality, credibility, criminal history, general moral character, social environment, and education. Id. We may not substitute our judgment for that of the trial court in reviewing a sentence merely because we might have weighed the factors differently. Id. ¶ 49.
¶ 14 Here, defendant's argument is based on the trial court's note that defendant had a "fairly substantial" criminal background in imposing sentence and his belief that this was the sole reason for the sentence he received. However, the record reflects that the trial court acknowledged the evidence presented in both aggravation and mitigation, as well as the statutory factors in aggravation and mitigation, and weighed them against the facts of the case, defendant's attitude and demeanor at trial, the presentencing report, defendant's criminal background and the fact that it had previously sentenced defendant to the maximum 30-year prison term when it believed defendant to be Class X eligible. Thus, contrary to defendant's assertion, the trial court did not base its sentencing decision solely on an element of the offense as an aggravating factor, nor was the sentence based solely on defendant's criminal background. Defendant points to nothing in the record to support his argument besides one comment made during the trial court's recitation of what it considered in imposing sentence. Defendant's claim that his background was less substantial without consideration of one of his prior felonies is without merit as the trial court can consider defendant's criminal history in imposing sentence. What the trial court cannot do is consider an element of the offense to sentence a defendant more harshly than without.
¶ 15 In this case, defendant's 14-year sentence was wholly within the trial court's discretion and defendant has pointed to no clear and obvious error in his sentence as evidenced by the record before us. Contrary to defendant's contention on appeal, we find that it is neither clear nor obvious that the trial court abused its discretion in imposing a 14-year sentence for UUWF. Because defendant has failed to establish that a clear or obvious error occurred, relief is not warranted under the plain error doctrine. See In re H.C., 2019 IL App (1st) 182581, ¶ 45 (Without a clear and obvious error, there can be no plain error.).
¶ 16 We further find that defendant has not shown that his trial counsel was ineffective for failing to argue that the trial court improperly included an element of the offense in aggravation during sentencing. To prevail on a claim of ineffective assistance of counsel, a defendant must demonstrate that his counsel's representation fell below an objective standard of reasonableness and a reasonable probability exists that, but for counsel's errors, the result of the proceeding would have been different. People v. Peterson, 2017 IL 120331, ¶ 79. As we have already concluded that the trial court did not abuse its discretion in imposing a 14-year sentence for UUWF which fell within the sentencing range for that offense, a reasonable probability does not exist that the result of the proceeding would have been different if trial counsel had argued that the trial court improperly considered an element of the offense in aggravation. Also, as we have found that it was neither clear nor obvious that the trial court used defendant's prior conviction as an impermissible double enhancement in sentencing defendant more harshly, trial counsel's failure to challenge it was not objectively unreasonable. We therefore reject defendant's ineffective assistance of counsel claim.
¶ 17 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.
¶ 18 Affirmed.
¶ 19 JUSTICE HYMAN, dissenting:
¶ 20 The majority rejects an argument Martinez did not make while upholding a principle he did not contest. Martinez conceded that the court properly considered his criminal history when sentencing him. But he objected to the court's reliance on the "bald fact" of one prior felony, as it also was an element of the sentenced offense. Because our supreme court prohibits sentencing courts from doing just that, I would reverse and remand for a new sentencing hearing.
¶ 21 To begin, I wish to clarify an imprecise shorthand that repeatedly appears in appellate decisions, including this one. Supra ¶ 11. The majority asserts that a sentence within the applicable statutory range is presumptively valid, citing People v. Cook, 2021 IL App (3d) 190243, ¶ 36 (citing People v. Sauseda, 2016 IL App (1st) 140134, ¶ 12, citing People v. Hauschild, 226 Ill.2d 63, 90 (2007), quoting People v. Stacey, 193 Ill.2d 203, 209-10 (2000)).
¶ 22 But a review of Stacey shows the court intended something entirely different. Stacey, 193 Ill.2d 203, 209-10. The court held, "[A] sentence within statutory limits will be deemed excessive and the result of an abuse of discretion by the trial court where the sentence is greatly at variance with the spirit and purpose of the law, or manifestly disproportionate to the nature of the offense." (Emphasis added.) Id. Under Stacey, we must focus not on a presumption but on the error and its impact. As I will explain, the record does not support the court's choice to impose a 14-year sentence, the harshest available sentence under the law. 720 ILCS 2/24-1.1(e).
¶ 23 Sentencing courts may not "consider an element of the offense to sentence a defendant more harshly." Supra ¶ 14. Something more, like the nature and circumstances of that element, must underlie a finding in aggravation. People v. Saldivar, 113 Ill.2d 256, 268-69 (1986) (sentencing court must consider nature and circumstances of offense, including nature and extent of each element). This rule applies when, as here, the offense includes a prior conviction as an element. See People v. Thomas, 171 Ill.2d 207, 227-28 (distinguishing between "fact" of prior conviction and its "nature and circumstances").
¶ 24 Nothing in the record revealed the nature or circumstances of Martinez's predicate under case number 13-CR-2175-01, an element of his sentenced offense-unlawful use of a weapon by a felon. The majority cannot point to anything showing the sentencing court heard some fact about Martinez's prior conviction, also for unlawful gun possession, such as why he had the gun, where, and for how long. The court heard no witness describe the investigation. Nor a victim explain the crime's impact.
¶ 25 Still, the sentencing court found as aggravation Martinez's "fairly substantial" criminal history and imposed the maximum term of 14 years' imprisonment. While the State highlighted three felonies in response to the court's inquiry regarding Martinez's criminal history, the sentencing court neglected to note the dual role played by the predicate at issue, a conviction comprising a third of Martinez's felony record.
¶ 26 Given this record, Martinez has twice carried his burden on appeal by showing both that counsel provided ineffective assistance and the sentencing court plainly erred. Contrary to the majority's assertion, Martinez needed not and indeed did not contend that the court "solely" relied on this factor. Supra ¶ 14. That the court relied on it should have led trial counsel to object to this clear and obvious error. And whether we fault counsel or the court, we should not conclude the error made no difference.
¶ 27 A sentencing court errs by relying on improper factors in aggravation, as here. See People v. Pierce, 223 Ill.App.3d 423, 441-42 (2d Dist. 1991) (ordering new sentencing hearing because improper factor in aggravation affected defendant's fundamental right to liberty). Plain error occurs when that reliance is "so egregious as to deny the defendant a fair sentencing hearing." People v. Hillier, 237 Ill.2d 539, 545 (2010). Here, the court presumed the worst about the bald fact of a predicate and imposed the maximum sentence partly on this basis. Contrary to the majority's unsupported contention (Supra ¶ 15), the sentencing court abused its discretion and denied Martinez a fair sentencing hearing.
¶ 28 Likewise, the majority wrongly concludes that trial counsel provided effective assistance by standing silent. Supra ¶ 16. Generally, counsel errs when their performance falls below an objective standard of reasonableness, causing a reasonable probability of prejudice. Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984). As I have explained, our supreme court has long prohibited sentencing courts from considering as aggravating the mere existence of a predicate that also is an element (Saldivar, 113 Ill.2d 256, 268-69; Thomas, 171 Ill.2d 207, 227-28), and so counsel's failure to object was not reasonable. Strickland, 466 U.S. at 689 (directing courts to evaluate the conduct from counsel's perspective at the time).
¶ 29 Prejudice exists where there is a reasonable probability the sentence might have been shorter. See Glover v. United States, 531 U.S. 198, 203-04 (2001) (noting, extra jail time may be prejudicial under Strickland). That chance exists here because the court issued the maximum sentence while highlighting Martinez's "fairly substantial" criminal record of three felonies, including the predicate. See People v. Minter, 2015 IL App (1st) 120958, ¶ 154 (remanding for resentencing without improper aggravation, where defendant received two years above minimum term).
¶ 30 Accordingly, I dissent.