People v. Brown

• Decision Date: 09 October 2018
• Docket Number: No. 1-16-0924,1-16-0924
• Citation: 129 N.E.3d 150,432 Ill.Dec. 262,2018 IL App (1st) 160924
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Sean BROWN, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2018 IL App (1st) 160924

129 N.E.3d 150

432 Ill.Dec. 262

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Sean BROWN, Defendant-Appellant.

No. 1-16-0924

Appellate Court of Illinois, First District, Second Division.

October 9, 2018

JUSTICE MASON delivered the judgment of the court, with opinion.

¶ 1 Following a bench trial, Sean Brown was found guilty of one count of being an armed habitual criminal (AHC) ( 720 ILCS 5/24-1.7(a) (West 2014) ), two counts of unlawful use or possession of a weapon by a felon (UUWF) (id. § 24-1.1(a) ), and two counts of aggravated unlawful use of a weapon (AUUW) (id. §§ 24-1.6(a)(1), (a)(3)(A-5), (a)(3)(C) ). The court merged the counts and sentenced Brown to 13 years' imprisonment on the AHC conviction. On appeal, Brown contends that (i) his sentence is excessive because his criminal background does not justify a 13-year sentence, (ii) the trial court relied on a sentencing factor inherent in the offense, and (iii) the trial court deprived him of his right to a meaningful appeal by failing to fully articulate its sentencing decision. Brown also challenges the fines and fees imposed against him. We affirm, but correct the order assessing fines, fees, and costs.

¶ 2 On January 1, 2015, at about 2:50 a.m., Chicago police officers Ohlson and Lopez curbed a vehicle along West Roosevelt Road for not using its turn signal to change lanes. Brown was seated in the rear passenger seat, behind the driver. When the driver of the vehicle revealed that he did not have a valid driver's license, Ohlson asked the driver and Brown to step out of the vehicle. As Brown stepped out of the vehicle, Ohlson saw him remove what appeared to be a handgun from his pants pocket and throw it on the rear floorboard of the vehicle. Brown fled as Ohlson tried to detain him, and Ohlson and Lopez gave chase on foot. A short time later, an assisting unit detained Brown along South Albany Avenue, and Ohlson identified him. Lopez recovered a handgun containing five live rounds of ammunition from the rear floorboard of the curbed vehicle from which Brown fled.

¶ 3 Brown was later charged with AHC, two counts of UUWF, and five counts of AUUW. At Brown's request, the parties and the trial court held a conference, which was not transcribed. After the conference, the court announced that it had "indicated" at the end of the conference that, if Brown pled guilty, it would sentence him to 10 years' imprisonment. Brown rejected the court's offer, and the case proceeded to trial. Before trial, the state elected not to proceed on four counts of AUUW, and proceeded on the remaining counts.

¶ 4 In addition to the evidence summarized above, the State admitted into evidence at Brown's trial certifications of Brown's prior convictions for UUWF (2008) and manufacture or delivery of a controlled substance (2009). The State also admitted a certification from Tracy Shultz of the Firearms Services Bureau of the Illinois State Police, stating that, as of January 20, 2015, records of the Firearms Services Bureau show Brown had never been issued a firearm owner's identification card or a concealed carry license. Brown rested without presenting any evidence. The trial court found Brown guilty on all counts.

¶ 5 At sentencing, the presentence investigation report (PSI) showed Brown had been sentenced on multiple felony convictions: UUWF (2008—3 years Illinois Department of Corrections (IDOC) ), manufacture or delivery of a controlled substance (2009—3 years IDOC), and possession of a controlled substance (2006—2 years 710-1410 probation, 2007—1 year IDOC, 2012—18 months IDOC, 2013—3 years IDOC). At the time of his arrest in 2015, Brown was 26 years old, was working as a part time laborer earning minimum wage, and regularly took ecstasy.

¶ 6 The State argued in aggravation that Brown had six prior felony convictions, including Class 2 felony convictions for UUWF and manufacture or delivery of a controlled substance, as well as four convictions for Class 4 felony possession of a controlled substance. In mitigation, defense counsel argued that the court should consider the nature of Brown's prior felony convictions, which were "all, but for one, narcotics related." Counsel maintained that there was no indication in Brown's background that he engaged in violence or used a firearm to commit a crime. Counsel emphasized that Brown was turning 28 years old at the time of sentencing, had completed his GED, and had participated in drug and alcohol counseling and the Cook County Department of Corrections' PACE program. Counsel also noted that Brown had a bad family background, where "everybody" in his family had been incarcerated. Counsel requested that Brown receive a sentence "toward" the minimum. In allocution, Brown requested leniency.

¶ 7 In announcing its sentence, the trial court stated that it had considered all factors in aggravation and mitigation, including Brown's criminal history. The court acknowledged that, apart from his 2008 UUWF conviction, "the bulk" of Brown's criminal history was drug related and nonviolent. The court noted that Brown would be obligated to serve 85% of his sentence and then sentenced him to 13 years' imprisonment for being an armed habitual criminal. The court merged the other convictions into the armed habitual criminal conviction, credited Brown with 432 days' time served, and assessed $844 in fines, fees, and costs. The court later denied Brown's motion to reconsider sentence.

¶ 8 Here, Brown contends that his sentence is excessive. The Illinois Constitution requires a trial court to impose a sentence that achieves a balance between the seriousness of the offense and the defendant's rehabilitative potential. People v. Knox , 2014 IL App (1st) 120349, ¶ 46, 385 Ill.Dec. 874, 19 N.E.3d 1070 (citing Ill. Const. 1970, art. I, § 11, and People v. Lee , 379 Ill. App. 3d 533, 539, 318 Ill.Dec. 808, 884 N.E.2d 776 (2008) ).

"To find the proper balance, the trial court must consider a number of aggravating and mitigating factors including: ‘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. (quoting People v. Maldonado , 240 Ill. App. 3d 470, 485-86, 181 Ill.Dec. 426, 608 N.E.2d 499 (1992) ).

A reviewing court will not reweigh sentencing factors and may not substitute its judgment for that of the trial court merely because it would have weighed the factors differently. Id.

¶ 9 A reviewing court gives substantial deference to the trial court's sentencing decision because the trial judge, having observed the defendant and the proceedings, is in a much better position to consider these factors. People v. Snyder , 2011 IL 111382, ¶ 36, 355 Ill.Dec. 242, 959 N.E.2d 656. There is a presumption that a trial court considered all relevant factors in determining a sentence, and that presumption will not be overcome without explicit evidence in the record that the trial court did not consider mitigating factors. People v. Flores , 404 Ill. App. 3d 155, 158, 343 Ill.Dec. 923, 935 N.E.2d 1151 (2010). A reviewing court may not modify a defendant's sentence absent an abuse of discretion. Snyder , 2011 IL 111382, ¶ 36, 355 Ill.Dec. 242, 959 N.E.2d 656. An abuse of discretion will be found only "where the sentence is greatly at variance with the spirit and purpose of the law[ ] or manifestly disproportionate to the nature of the offense." (Internal quotation marks omitted.) Id. (quoting People v. Stacey , 193 Ill. 2d 203, 210, 250 Ill.Dec. 4, 737 N.E.2d 626 (2000) ).

¶ 10 The offense of armed habitual criminal is a Class X felony, punishable by 6 to 30 years' imprisonment. 720 ILCS 5/24-1.7(b) (West 2014); 730 ILCS 5/5-4.5-25(a) (West 2014). As Brown's 13-year sentence falls within the permissible statutory range, we presume it is proper. See Knox , 2014 IL App (1st) 120349, ¶ 47, 385 Ill.Dec. 874, 19 N.E.3d 1070.

¶ 11 Brown argues that the trial court abused its discretion in sentencing him because (1) his 13-year sentence—three years greater than the sentence it offered in exchange for his guilty plea—penalized him for exercising his right to trial, (2) the trial court deprived him of any meaningful opportunity to appeal his sentence because of its "scant" explanation of the reasons for the sentence, (3) the trial court relied upon an improper sentencing factor in considering Brown's previous UUWF conviction, on which his AHC conviction was predicated, and (4) his sentence is excessive in light of his drug-related, and non-violent criminal background.

¶ 12 Brown first argues that his sentence amounts to punishment for exercising his right to a trial. Although it may be proper in imposing sentence to grant concessions to a defendant who enters a plea of guilty, a court may not penalize the defendant for asserting his right to a trial. People v. Ward , 113 Ill. 2d 516, 526, 101 Ill.Dec. 834, 499 N.E.2d 422 (1986). We will set a sentence aside if the trial court's remarks evince that the imposed sentence resulted, at least in part, from the fact that defendant did not plead guilty and instead exercised his right to trial. People v. Moore , 263 Ill. App. 3d 1, 11, 200 Ill.Dec. 168, 635 N.E.2d 507 (1994). A sentence may be set aside on this ground only if it is clearly evident from the record as a whole that the sentence was improperly imposed. Ward , 113 Ill. 2d at 526-27, 101 Ill.Dec. 834, 499 N.E.2d 422.

¶ 13 There is no such evidence in the record here. The trial court did not mention the earlier plea offer at sentencing. The mere fact that it imposed a greater sentence than that offered in the plea deal does not support an inference that it imposed the sentence as a punishment for demanding trial. People v. Andrews , 2013 IL App (1st) 121623, ¶ 19, 377 Ill.Dec. 856, 2 N.E.3d 1137.

¶ 14 Brown cites People v....