People v. Ramos, No. 1-03-2963.

• Court: United States Appellate Court of Illinois
• Citation: 353 Ill. App.3d 133,817 N.E.2d 1110,288 Ill.Dec. 460
• Docket Number: No. 1-03-2963.
• Parties: The PEOPLE of The State of Illinois, Plaintiff-Appellee, v. Jacob RAMOS, Defendant-Appellant.
• Decision Date: 30 September 2004

817 N.E.2d 1110
353 Ill. App.3d 133
288 Ill.Dec. 460

The PEOPLE of The State of Illinois, Plaintiff-Appellee,
v.
Jacob RAMOS, Defendant-Appellant

No. 1-03-2963.

Appellate Court of Illinois, First District, Fourth Division.

September 30, 2004.

817 N.E.2d 1112

Michael J. Pelletier, Office of the State Appellate Defender, Chicago (Brett C. Zeeb, Assistant Public Defender), for Defendant-Appellant

Richard A. Devine, State's Attorney of Cook County, Chicago (Renee Goldfarb, Sally Dilgart, John E. Nowak, Paul A. Ruscheinski, of counsel), for Plaintiff-Appellee.

Justice GREIMAN delivered the opinion of the court:

After a bench trial, defendant Jacob Ramos was convicted of residential burglary and was sentenced to 16 years in prison. Defendant now appeals, arguing that his sentence was excessive, that he received a disproportionately long sentence as compared to a similarly situated codefendant, and that the compulsory extraction and perpetual storing of his DNA violated his fourth amendment right to be free from unreasonable searches and seizures. For the reasons that follow, we affirm the defendant's

817 N.E.2d 1113

conviction and sentence as well as the constitutionality of section 5-4-3(a)(3.5) of the Unified Code of Corrections (730 ILCS 5/5-4-3 (West 2002))

On June 21, 2002, Chicago police officer Del Rivero and his partner, Officer Haran, were assigned to investigate numerous burglaries that had occurred near Damen and Wood Streets in Chicago, Illinois. That day, Officer Del Rivero conducted surveillance on the street while Officer Haran was in an unmarked car a few blocks away. At approximately 2:50 p.m., Officer Del Rivero noticed the defendant acting suspiciously in front of a residence at 902 Winchester Street. Apparently, the defendant was looking in all directions, up and down, when the codefendant walked out of a gangway between the buildings at 900 and 902 Winchester. Defendant and Gonzalez had a short conversation and then proceeded to ring the doorbells of the units in 902 and 904 Winchester.

At that point, Officer Del Rivero noticed the defendant and codefendant walk to the rear of 902 Winchester. Gonzalez then appeared in the gangway with a toolbox in his hand, and he placed it on its side below a windowsill of the 902 Winchester building. Using the toolbox as a stair, Gonzalez balanced himself on the windowsill, and defendant boosted Gonzalez up toward the windowsill. Gonzalez then forced the window open with his hands and entered the first-floor apartment.

From nearly 60 feet away, Officer Del Rivero then watched the defendant walk to the front door of the first floor of 902 Winchester and proceed through the door, which Gonzalez had opened from the inside. After two to three minutes in the apartment, the defendant and Gonzalez exited the building and walked north on Winchester. Defendant was holding an Aldi shopping bag. At that point, Officer Del Rivero contacted another enforcement officer and gave him a description of the defendant and Gonzalez. After the enforcement officer and Officer Haran stopped and detained the defendant and Gonzalez, they searched the Aldi bag and retrieved several items, including two white vases.

After the victim had returned home, he verified to police that his apartment was not in the same order as he had left it that morning. He also verified that several items were missing and was later able to confirm that the items recovered from the Aldi bag were taken from his apartment. Some of the items, however, were never recovered. The victim had never met the defendant or Gonzalez and did not grant them permission to enter his apartment.

In light of the evidence, the trial court found the defendant guilty of residential burglary and sentenced him to 16 years in prison. At the time of the sentencing, the State asked the court to order defendant to produce a blood sample for forensic DNA testing. Defendant did not object, and on May 20, 2003, the court granted the State's motion. The defendant now appeals his sentence and the order to produce.

Defendant's first argument on appeal is that his sentence of 16 years for residential burglary is excessive in light of his personal history, the particular circumstances of the offense, and his strong rehabilitative potential. We note that Supreme Court Rule 615(b)(4) (134 Ill.2d R. 615(b)(4)) grants a reviewing court the authority to reduce a sentence imposed by the trial court if the reviewing court finds that the trial court abused its discretion in imposing the sentence. People v. Perruquet, 68 Ill.2d 149, 154, 11 Ill.Dec. 274, 368 N.E.2d 882 (1977).

The defendant was sentenced as a Class X offender pursuant to section 5-5-3(c)(8)

817 N.E.2d 1114

of the Unified Code of Corrections (730 ILCS 5/5-5-3(c)(8) (West 2002)), which states, in pertinent part

"When a defendant, over the age of 21 years, is convicted of a Class 1 or Class 2 felony, after having twice been convicted in any state or federal court of an offense that contains the same elements as an offense now classified in Illinois as a Class 2 or greater felony and such charges are separately brought and tried and arise out of different series of acts, such defendant shall be sentenced as a Class X offender." 730 ILCS 5/5-5-3(c)(8) (West 2002).

Any defendant convicted of a Class X felony faces a sentence of a minimum of 6 years' to a maximum of 30 years' imprisonment. 730 ILCS 5/5-8-1(a)(3) (West 2002). Here, because the defendant had eight prior felony convictions, the trial court was required to sentence him as a Class X offender. Nevertheless, defendant argues that the trial court erred in failing to consider several factors in mitigation.

First, defendant argues that because he neither caused nor contemplated that his action would cause bodily harm during the time of the offense, the trial court should have provided a reduced sentence. For this, he notes that the offense occurred at approximately 3 in the afternoon after he and his codefendant first rang the apartment's doorbell to ensure nobody was present. He also notes that when he was captured, neither he nor his codefendant was armed nor did they attempt to flee or resist arrest. In that vein, he also notes that none of his prior convictions were violent or drug-related.

Next, he argues that the trial court failed to take into account his background. In support of that argument, defendant alleges that his extended imprisonment would entail a hardship on his dependents, since, prior to the arrest, he was earning $14.42 per hour plus commission as a salesman. In addition, he claims that he was soon to have been promoted to the position of warehouse manager by his employer, Mr. Cheeks, who would hire him upon release from prison. He also notes that his incarceration could endanger his medical condition, as he is HIV positive.

Third, defendant claims that the trial court failed to consider his strong rehabilitative potential, in that he has earned his GED, completed 117 college credits at various junior colleges through the Department of Corrections, obtained a certificate of culinary arts, and is two credits short of earning an associate's degree in digital electronics. In addition to his education, the defendant states, he worked at El Meson, a rehabilitative facility for alcohol and drug abusers. There, defendant notes, he taught Bible study and was instrumental in saving a program that helps ex-offenders find jobs, secure housing, and get an education.

Looking at the totality of this mitigating evidence, defendant then draws attention to this court's decision in People v. Center, 198 Ill.App.3d 1025, 145 Ill.Dec. 106, 556 N.E.2d 724 (1990). There, the defendant was convicted of burglarizing a laundromat. At sentencing, the State presented the defendant's criminal record, which contained two prior Class 2 felony convictions, one for robbery and one for burglary. Center, 198 Ill.App.3d at 1033, 145 Ill.Dec. 106, 556 N.E.2d 724. The trial court reviewed the defendant's personal history and found him eligible for a Class X sentence under the statute now codified as section 5-5-3(c)(8) of the Unified Code of Corrections, and sentenced the defendant to 15 years. Center, 198 Ill.App.3d at 1034, 145 Ill.Dec. 106, 556 N.E.2d 724. After reviewing the defendant's personal history, this court found no aggravating

817 N.E.2d 1115

factors other than the two previous convictions and thus concluded that the defendant possessed the capability and potential for rehabilitation. Center, 198 Ill.App.3d at 1035, 145 Ill.Dec. 106, 556 N.E.2d 724. Consequently, the court found the 15-year sentence to be excessive and reduced the sentence to 7 years. Center, 198 Ill.App.3d at 1035, 145 Ill.Dec. 106, 556 N.E.2d 724.

Likewise, in the present case, defendant argues that the only aggravating factor is his prior criminal history and that he possesses a "substantial amount of mitigating factors." Defendant concludes that where his prior adult record contains only nonviolent offenses and where he has taken affirmative steps with his education and his career and where he has served as a positive influence upon other ex-offenders and addicts, his 16-year sentence does not conform with the spirit or purpose of the law. We disagree.

In determining a sentence, a trial court must analyze the acts constituting the crime, and a defendant's credibility, demeanor, general moral character, mentality, social environments, habits, age, and potential for rehabilitation. People v. Steffens, 131 Ill.App.3d 141, 152-53, 86 Ill.Dec. 392, 475 N.E.2d 606 (1985). However, because the trial court is in a better position to judge the credibility of the witnesses and the weight of the evidence at the sentencing hearing, its decision is entitled to great deference and will not be overturned even if we may have balanced the factors differently. People v. Jones, 168 Ill.2d 367, 373, 213 Ill.Dec. 659, 659 N.E.2d 1306 (1995); People v....