People v. Miller
|02 February 2021
|2021 IL App (2d) 190093,186 N.E.3d 1035
|The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Benjamin Alexander MILLER Jr., Defendant-Appellant.
|United States Appellate Court of Illinois
James E. Chadd, Thomas A. Lilien, and Fletcher P. Hamill, of State Appellate Defender's Office, of Elgin, for appellant.
Marilyn Hite Ross, State's Attorney, of Rockford (Patrick Delfino, Edward R. Psenicka, Mary Beth Burns, and Lawrence M. Bauer, of State's Attorneys Appellate Prosecutor's Office, of counsel, and Alexandra Rogers, law student), for the People.
¶ 1 Defendant, Benjamin Alexander Miller Jr., appeals from his sentence of six years’ imprisonment that the court imposed for defendant's violation of an order of protection ( 720 ILCS 5/12-3.4 (West 2014) ) after he made a blind admission to a probation violation. He contends that the trial court's resentence was an abuse of discretion because the court punished him for his conduct while on probation rather than for his original offense. Based on our review of the record, we disagree. By focusing on defendant's probation conduct in resentencing defendant, all of which concerned the victim of the original offense, the court was addressing defendant's lack of rehabilitative potential as evidenced by his continued abuse of the original victim. Accordingly, we conclude that defendant's resentence was for the original offense, as opposed to the probation conduct, and we therefore affirm.
¶ 3 A Winnebago County grand jury indicted defendant on a single count of violation of an order of protection (id. ). Defendant was extended-term eligible based on a conviction of the same offense in a 2008 case. In July 2015, defendant agreed to plead guilty to that charge in exchange for a sentence of 30 months’ probation and the dismissal of the State's probation-violation petitions in two unrelated felony cases. According to the State's factual basis in support of the plea, defendant texted K.N. more than 30 times between October 29 and October 30, 2014, after having been served on October 28, 2014, with an order of protection precluding such contact. Significantly, the terms of defendant's probation required that he have no contact with K.N.
¶ 4 On September 25, 2017, the State filed a petition to revoke defendant's probation alleging, inter alia , that, on August 15, 2017, defendant committed the following probation violations, all of which involved K.N.: unlawfully restrained K.N. by preventing her from leaving her home, committed domestic battery by grabbing K.N., committed domestic battery by throwing K.N. to the ground, committed domestic battery by covering K.N.’s mouth with his hand, and had contact with K.N. in violation of his probation conditions.
¶ 5 In exchange for defendant's blind admission to having contact with K.N., the State agreed to dismiss the other violations, with the condition that it reserved the right to present evidence of that conduct at sentencing. The court admonished defendant about the possibility of sentencing in absentia.
¶ 6 Defendant's presentence report included the following description of the original offense:
An excerpt from K.N.’s statement to the police clarified that defendant had contacted K.N. through Facebook rather than by text message.
¶ 7 The sentencing hearing took place on November 16, 2018. Defendant was not present, as he refused to leave his jail cell, asserting that he had already made his statement to the court. Over defense counsel's objection, the court ruled that the hearing could proceed in absentia , which is unchallenged on appeal.
¶ 8 K.N. was the State's sole witness. She testified that she had had an "[o]n and off" relationship with defendant for four years. She became romantically involved with defendant in 2013. She was living with defendant in 2014, but their relationship had started to become violent by then. Defendant committed several acts of domestic violence against her, which she did not report. When she tried to stay away from defendant, he harassed her, which led her to obtain a Winnebago County order of protection barring defendant from contacting her. It was the violation of this order that led to the original charge. Other than establishing that the violation of this protective order led to the original charge, the State did not ask K.N. to describe the offense. K.N. was aware that the State had prosecuted defendant for the order of protection violation, but he never told her that the terms of his probation barred him from contact with her. Moreover, the State failed to alert her to the existence of this condition of defendant's probation.
¶ 9 When K.N. discovered that she was pregnant with defendant's child—which happened while defendant was on probation—she "dropp[ed]" the Winnebago County order of protection. Defendant saw her regularly during her pregnancy, and the two moved back in together in May 2017. On the night of August 16, 2017, they got into an argument. K.N. tried to leave the house, but defendant grabbed her as she tried to exit through the front door. He pulled her into the house, she kicked at him, and he threw her to the ground. He sat on her, putting one hand around her throat and the other over her mouth, making it difficult for her to breathe. To make the event less traumatic for defendant's daughter, who lived with them, K.N. waited until the next morning when the children were at school to call the police. Three children lived with K.N. and defendant: their infant son, defendant's daughter, and K.N.’s daughter. The incident left K.N. with bruising on her throat and a rug burn on her arm. It also prompted K.N. to obtain an order of protection in Ogle County, which barred defendant from contacting her and was in effect at the time of resentencing.
¶ 10 K.N. authenticated a letter that defendant had sent from jail while awaiting resentencing to an address where defendant believed she still lived with a friend. The letter was addressed to the friend and not K.N. The letter read in pertinent part, "I should have beat [K.N.] and busted her nose and knocked out some of her teeth, and *** tried to rape her and stuck her in the trunk and put a gun in her mouth." In response to a question from defense counsel, K.N. agreed that defendant also said in the letter that he should have treated K.N. "like everyone else treated [her]." The court acknowledged that defendant had not asked K.N.’s friend to communicate the statement to K.N. but that he did ask the friend to give a message to K.N.’s son that she had with defendant. At the time of the letter defendant was prohibited from contacting both K.N. and the son pursuant to the Ogle County order of protection.
¶ 11 Defense counsel introduced a written letter by defendant to K.N. in lieu of a statement in allocution. In the letter, defendant claimed that K.N. had threatened to kill Ch. (defendant's child with K.N.), Cy. (evidently, K.N.’s son from a previous relationship), and herself to get back at him. He said that he was "sorry for whatever he did that is worse then [sic ] the men who [Cy.] saw abuse you." He then listed a series of things that he claimed that two men, D. and K.—the statement implies that they were other men with whom K.N. had relationships—had done to her. Most of the rest of the statement related to an accusation that an ex-boyfriend of K.N.’s had sexually abused K.N.’s daughter. Defendant claimed that the Ogle and Winnebago County court systems had treated him worse than murderers and others who had committed more serious crimes than his. He said his mistakes had kept him from preventing his "baby girl [from being] molested" and from preventing K.N. almost being raped by K. Defendant said that he was a failure as "a father, a husband, a man, a fighter, a provider, a protector, and a son."
¶ 12 The State asked the court to impose a six-year sentence on defendant, the maximum. It contended that defendant's written statement to the court and his letter to K.N.’s former roommate showed that he continued to intend harm to K.N. Moreover, his instability made him a "violent risk" to others. Finally, he showed no inclination to comply with any probation conditions placed on him.
¶ 13 Defense counsel argued that defendant was "struggling with severe depression and PTSD related to an assault on his daughter when she was three years old." He suggested that defendant needed mental health care that would not be available in prison.
¶ 14 The court stated that it was considering the presentence report, the exhibits, defendant's written statement, and the August 2017 incident that was the basis for the petition to revoke probation. Concerning the August 2017 incident, the court stated that it was "really bother[ed]" by the fact that defendant never told K.N. that the terms of his probation barred him from any contact with her. The court described K.N.’s ignorance of the no-contact order as a failure both of defendant and the system.
¶ 15 The court further indicated that it was weighing "a number of factors in aggravation and mitigation ***, mostly aggravation." It stated that it had "considered all the factors, both statutory and nonstatutory," but that it would "talk about some." It counted "50 criminal convictions of one sort or another including four felony convictions and at least 17 misdemeanor convictions," most of which were traffic offenses. It noted that defendan...
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...to consider that mitigating factor. A failure to consider a statutory mitigating factor is an abuse of discretion. People v. Miller , 2021 IL App (2d) 190093, ¶ 22, 453 Ill.Dec. 1, 186 N.E.3d 1035. Defendant accuses defense counsel of rendering ineffective assistance by failing to raise the......