People v. Arbuckle

• Decision Date: 21 April 2015
• Docket Number: No. 3–12–1014.,3–12–1014.
• Citation: 31 N.E.3d 351
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Aaron M. ARBUCKLE, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

31 N.E.3d 351

The PEOPLE of the State of Illinois, Plaintiff–Appellee

v.Aaron M. ARBUCKLE, Defendant–Appellant.

No. 3–12–1014.

Appellate Court of Illinois, Third District.

April 21, 2015.

Joel C. Wessol, of State Appellate Defender's Office, of Springfield, for appellant.

Patrick J. Herrmann, State's Attorney, of Princeton (Dawn D. Duffy, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

OPINION

Justice SCHMIDT delivered the judgment of the court, with opinion.

¶ 1 Defendant, Aaron M. Arbuckle, was charged with aggravated domestic battery (720 ILCS 5/12–3.3(a) (West 2010)) and aggravated battery (720 ILCS 5/12–4(b)(1) (West 2010)). At defendant's plea hearing, the court informed defendant that he was eligible for extended-term sentences on each count. Defendant did not object and did not later raise the issue in a postsentencing motion. The court sentenced defendant to consecutive terms of 5 1/2 and 4 years' imprisonment on the two counts, respectively. Among the aggravating factors cited by the court was the degree of harm defendant inflicted upon the victims. Defendant appeals his sentence on the grounds that (1) the court erroneously found him extended-term eligible; (2) counsel was ineffective for failing to raise the issue of defendant's extended-term eligibility; (3) the court's consideration of the harm done to the victim constituted an improper double enhancement where “great bodily harm” was an element of the charged offense; and (4) the court failed to consider certain mitigating factors, resulting in an excessive sentence. We affirm.

¶ 2 FACTS

¶ 3 On June 9, 2011, the State charged defendant with aggravated domestic battery (count I) (720 ILCS 5/12–3.3(a) (West 2010)) and aggravated battery (count II) (720 ILCS 5/12–4(b)(1) (West 2010)). With respect to count I, the State alleged in the aggravated domestic battery information that defendant struck his girlfriend, Kayla Zimmerlein, with a golf club, resulting in great bodily harm. On count II, the State alleged that defendant stabbed Nicole Reuter with a broken golf club.

¶ 4 Defendant entered an open guilty plea on September 22, 2011. While admonishing defendant, the court informed him that the maximum prison term for aggravated domestic battery, a Class 2 felony, would be 14 years' imprisonment. Defendant was eligible for an extended-term sentence due to a prior Class 2 conviction. He was also not eligible for probation. The court also informed defendant that he was extended-term eligible on the aggravated battery charge, a Class 3 felony: “The maximum prison sentence normally would be five years for a Class 3 felony. But because of the prior Class 2 conviction in 2005 in Lee County, you would be eligible for extended term * * *. The maximum prison sentence could be ten years rather than five.”

¶ 5 The factual basis established that defendant lived with his girlfriend, Zimmerlein, in an apartment. Reuter lived in an adjacent apartment, and a get-together was held in the common patio area of the apartments. After an altercation between defendant and another male, Zimmerlein took defendant back to their apartment. She returned to the gathering. When Zimmerlein later returned to the apartment, defendant struck Zimmerlein with a golf club, breaking her arm. Zimmerlein called for help, at which point Reuter entered the apartment. Defendant then struck Reuter with the club, leaving a puncture mark on her torso. The court accepted the guilty plea and scheduled the matter for sentencing.

¶ 6 The sentencing hearing was held on November 28, 2011. Defendant's brother, grandmother, and friend testified on his behalf. Each testified that defendant had a problem with alcohol. Defendant also made a statement. He explained that he had been drinking on the night in question. He began hallucinating and thought he was being attacked. “I thought I was actually protecting when what I was doing was the exact opposite.”

¶ 7 The court also considered the presentence investigation report (PSI). The PSI indicated that defendant had been convicted of burglary—a Class 2 felony—in 2005. It also showed multiple convictions for domestic battery (in 2006 and 2009) as well as a conviction for driving under the influence. The PSI also indicated that defendant had previously been diagnosed with bipolar disorder and alcohol dependence. Attached to the PSI were letters from defendant and other family members. Each letter addressed defendant's problems with alcohol.

¶ 8 At the sentencing hearing, the State submitted the victim impact statements of Zimmerlein and Reuter, as well as Zimmerlein's medical records. In Zimmerlein's letter, received more than four months after the battery, she described the injury as follows:

“The ulna bone in my left arm was pretty * * * shattered except for a piece by my wrist and a piece by my elbow. The rest was just crushed fragments. The doctor had to scrape and clean all the tiny little pieces that were left. He the[n] had to put in a plate and five screws just to keep my arm together.”

Zimmerlein also wrote that she had amassed more than $25,000 in medical expenses. She was unable to lift more than five pounds with her arm, which affected her ability to work.

¶ 9 Zimmerlein wrote that the injury was worse than her doctor originally expected. Following the initial surgery, the doctor informed her there was no sign of bone growth. Zimmerlein was put on a bone stimulation system, which did not work. She was to undergo further surgery to correct the problem. Zimmerlein claimed that if that surgery was unsuccessful, her arm “could be like this for the rest of [her] life.” She still suffered from daily pain in her arm.

¶ 10 Medical reports classified Zimmerlein's injury as a “Grade I open left ulna shaft fracture with comminution involving greater than 5 pieces.” The reports also detailed the “nonunion” of the fracture, as well as the lack of progress with a bone stimulator. The last medical report in the PSI, dated October 14, 2011, indicated that Zimmerlein would need surgery to remove a bone graft. The doctor noted that he did not discern “any progression at all in the fracture gap.”

¶ 11 At argument, the State posited that defendant was extended-term eligible on both counts. The State asked for sentences of seven and five years' imprisonment on count I and count II, respectively. Defendant asked for a recommendation of impact incarceration.

¶ 12 After a recess, the court stated that it had considered the victim impact statements, letters written on behalf of defendant, and the PSI, including all attached reports. The court also “reviewed the factors in mitigation and aggravation.” The court opined that the only applicable factor in mitigation was that defendant's conduct was clearly the result of his intoxication. The court considered this a “substantial ground[ ] tending to excuse or justify the defendant's criminal conduct” but failing to establish a defense. Addressing other statutory factors in mitigation, the court pointed out that there was no evidence that incarceration would affect defendant's dependents; the court did not find defendant was unlikely to commit further crime.

¶ 13 In aggravation, the court noted the seriousness of the injuries inflicted. The court also emphasized defendant's extensive list of prior convictions and the need to deter others from committing the same crime. The court concluded: “But clearly the factors in aggravation outweigh the factors in mitigation, for whatever that's worth. But I have reviewed all of those factors, even if I haven't specifically mentioned them here in court.”

¶ 14 In delivering the sentence, the court mentioned that it was “struck by both injuries” in the present case. The court pointed out that one of the injuries “could be an injury about which nothing can be done.” The court found defendant eligible for impact incarceration, but decided that such a sentence would “deprecate the seriousness of the two offenses here.” The “extent of the injuries here” also affected the court's decision not to recommend impact incarceration.

¶ 15 The court reiterated that the State had informed the court that defendant was eligible for extended-term sentences on each count. The court sentenced defendant to a term of 5 1/2 years' imprisonment on the count of aggravated domestic battery and a term of 4 years' imprisonment on the count of aggravated battery. The court found that consecutive sentences were necessary to protect the public.

¶ 16 Defendant subsequently filed a motion to reconsider sentence. In the motion, defendant argued that he had been subjected to an improper double enhancement when the sentencing court considered the physical injury caused as an aggravating factor. He also argued that the court failed to consider, as a mitigating factor, that defendant did not “contemplate that his criminal conduct would cause or threaten serious physical harm to another.” The court denied the motion.

¶ 17 On appeal, this court remanded the matter due to an error with the Illinois Supreme Court Rule 604(d) (eff. Feb. 6, 2013) certificate. People v. Arbuckle, No. 3–12–0285 (Aug. 16, 2012) (dispositional order). On remand, defendant was granted leave to file a second motion to reconsider sentence. That motion was denied following a hearing. Defendant appeals.

¶ 18 ANALYSIS

¶ 19 I. Extended–Term Eligibility

¶ 20 Defendant argues that he was not eligible for an extended sentence on the count of aggravated battery. He contends that a trial court may only impose an extended-term sentence for the most serious offense committed during a single course of conduct. Because defendant raises this issue for the first time on appeal, he urges that we review the issue under the rubric of plain error.

¶ 21 The nonextended permissible sentence range for a Class 3 felony is not less than two and not more than five years' imprisonment. 730 ILCS 5/5–4.5–40(a) (West 2010). The permissible sentencing range for an...