People v. Smith

• Decision Date: 05 December 2013
• Docket Number: Docket No. 2–12–0691.
• Citation: 376 Ill.Dec. 936,2013 IL App (2d) 120691,1 N.E.3d 648
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Raymond C. SMITH, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

2013 IL App (2d) 120691

1 N.E.3d 648

376 Ill.Dec. 936

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

v.Raymond C. SMITH, Defendant–Appellant.

Docket No. 2–12–0691.

Appellate Court of Illinois,

Second District.

Dec. 5, 2013.

Thomas A. Lilien and Vicki P. Kouros, both of State Appellate Defender's Office, of Elgin, for appellant.

Michael G. Nerheim, State's Attorney, of Waukegan (Lawrence M. Bauer and Barry W. Jacobs, Assistant State's Attorneys, of counsel), for the People.

OPINION

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

¶ 1 After a bench trial, defendant, Raymond C. Smith, was convicted of escape, a Class 2 felony (720 ILCS 5/31–6(c) (West 2010)). The trial court sentenced him to seven years' imprisonment, the maximum nonextended term (see 730 ILCS 5/5–4.5–35(a) (West 2010)), and ordered him to pay a $200 DNA analysis fee (730 ILCS 5/5–4–3(j) (West 2010)) and $341 in other assessments. On defendant's motion, the court reduced his prison sentence to six years. Defendant appeals, arguing that (1) his sentence was tainted because the trial judge erroneously assumed that defendant was eligible for an extended-term sentence; (2) the DNA analysis fee must be vacated; and (3) he must receive a monetary credit, against various fines, for time spent in custody before sentencing. We affirm as modified in part and vacate in part.

¶ 2 On November 15, 2011, the trial court held a bench trial. The evidence showed that, on June 18, 2011, defendant was in a jail holding cell on charges of knowingly discharging a firearm in the direction of another person and unlawfully possessing a firearm (case No. 11–CF–1536). He complained of illness, so a police officer called an ambulance. While riding in the ambulance, defendant escaped and ran away. The trial court found defendant guilty of escape.

¶ 3 On May 15, 2012, and June 15, 2012, the trial court held a sentencing hearing. Defendant's mother testified in mitigation and requested that defendant receive probation. A detective who had investigated the events in case No. 11–CF–1536 testified in aggravation. In arguments, the prosecutor noted, “The sentencing option here is obviously 3 to 7 year [ sic ] and it's probationable. I don't believe—I haven't been able to determine so at this point I don't believe—because most of his prior felonies have been Class 4s and 3 s, I don't believe he is extendible [ sic ].” The prosecutor continued that defendant's escape had endangered the public; that defendant's criminal history dated back to 2000; and that several sentences of probation and one parole term had been terminated unsatisfactorily. The prosecutor then referenced case No. 11–CF–1536 as proof of defendant's dangerousness and requested that the court sentence defendant to seven years in prison.

¶ 4 Defendant's attorney noted that the State had dismissed the charges in case No. 11–CF–1536. Further, defendant had successfully completed parole in 2005 and, between then and the present case, he had committed only traffic offenses. Defendant's attorney urged a sentence of probation.

¶ 5 In sentencing defendant, the trial judge explained as follows. Defendant had an extensive criminal history and had several terms of probation that were terminated unsatisfactorily, as well as one parole revocation. By escaping from the ambulance, he had threatened the public and himself with serious harm. Also, although the charges in case No. 11–CF–1536 were dismissed, defendant had possessed a gun although he was a felon. To protect the public, and given defendant's dubious rehabilitative prospects, the judge concluded that seven years' imprisonment was proper. The judge did not mention anything about the possibility, or desirability, of an extended-term sentence.

¶ 6 On June 21, 2012, at a hearing, defendant orally moved to reconsider the sentence. Defendant's attorney argued that the court had placed too much weight on case No. 11–CF–1536 and too little weight on defendant's relatively limited record since 2005. The prosecutor countered that defendant's criminal history was substantial and that his escape had been a reckless and dangerous act. The trial judge stated that he had considered case No. 11–CF–1536 solely as proof that defendant, as a felon, had unlawfully possessed a firearm. He also stated that defendant had never completed probation successfully. Defendant's attorney maintained that defendant had successfully completed one probation term. The following colloquy then ensued:

“THE COURT: Tell me which probation term he completed. And you mentioned I gave him the maximum. You know why I gave him the maximum? So I wouldn't have given him an extended term because he deserves it.

MR. RINEHART [defendant's attorney]: He doesn't qualify for an extended term.

THE COURT: Well, I said he deserves.

MR. RINEHART: He doesn't qualify for an extended term.

THE COURT: You're sure?

MR. RINEHART: I'm positive. There is no prior Class 2's [ sic.] And I believe the successful probationary period was in 99 CF 2421.”

Defendant's attorney noted that, in September 2000, defendant's probation for a Class A misdemeanor ended successfully. The judge stated, “All right. Maybe I should have said specifically felony probation. Under the circumstances—I'll tell you what. I had better err on the side of leniency, and I will modify the sentence to be six years * * *.”

¶ 7 The trial court modified the sentence and imposed the DNA fee and other assessments, which we shall detail in discussing defendant's third claim of error. Defendant timely appealed.

¶ 8 On appeal, defendant contends first that he is entitled to be resentenced, because the trial judge's sentencing decision appears to have been tainted by the erroneous belief that defendant was eligible for an extended-term sentence. Defendant concedes that he forfeited this issue by failing to raise it in the trial court (see People v. Myrieckes, 315 Ill.App.3d 478, 483, 248 Ill.Dec. 480, 734 N.E.2d 188 (2000)), but he notes that we may consider it under the plain-error rule (see id.). We therefore consider the merits of defendant's claim.

¶ 9 Defendant relies on the colloquy that we have quoted from the proceedings on his motion to reconsider the sentence. He argues that (1) the judge's remarks prove that he imposed the sentence under the mistaken impression that defendant was eligible for an extended-term sentence; ¹ and (2) because the judge's mistake might have influenced his choice of sentence, defendant is entitled to resentencing. For the following reasons, we disagree.

¶ 10 We ordinarily presume that the trial judge knew and followed the law unless the record indicates otherwise. People v. Gaultney, 174 Ill.2d 410, 420, 221 Ill.Dec. 195, 675 N.E.2d 102 (1996). Defendant must affirmatively demonstrate otherwise. See Myrieckes, 315 Ill.App.3d at 483, 248 Ill.Dec. 480, 734 N.E.2d 188. Defendant has not overcome this presumption. We note that nothing in the record of the sentencing hearing itself, or anything preceding the hearing, suggests that the trial judge believed that defendant was eligible for extended-term sentencing. Indeed, the indications are to the contrary. At the sentencing hearing, the prosecutor stated that he did not believe that defendant was eligible for an extended-term sentence. The judge did not disagree. In pronouncing sentence, he did not discuss whether defendant might be eligible for, or deserve, an extended-term sentence. Instead, the judge emphasized proper factors, such as defendant's substantial criminal record and the seriousness of his offense. The sentencing hearing itself does not support defendant's claim and, indeed, tends to rebut it.

¶ 11 Nonetheless, defendant relies on the judge's comments six days after the sentencing hearing to prove the judge's earlier state of mind. Defendant seizes on the comments, “You know why I gave him the maximum? So I wouldn't have given him an extended term because he deserves it” and “You're sure?” (in response to defendant's attorney's assertion that an extended-term sentence was unavailable), as proof that the judge had been laboring under a misapprehension all along. We conclude that these remarks are, at most, inconclusive, especially when considered in context.

¶ 12 The first quoted comment is ambiguous; it could be taken to mean that the judge imposed the maximum nonextended term because he had had no authority to impose an extended-term sentence—as much as defendant in theory “deserved it.” The second comment does tend to show that, at the hearing on the motion to reconsider the sentence, the judge was uncertain whether defendant was eligible for an extended-term sentence, or that, at that time, he might have thought so. However, we cannot read that possibility back into the sentencing hearing itself, especially as the judge was then specifically advised to the contrary by the prosecutor. Moreover, defendant ignores that, in response to the judge's query, defendant's attorney stated that, as a matter of simple fact, an extended-term sentence was unavailable. Further, after reviewing defendant's record, the judge reduced his sentence by a year. In sum, defendant has not overcome the presumption that the judge knew the law and applied it correctly.

¶ 13 The cases on which defendant relies are distinguishable. In Myrieckes, at the sentencing hearing, the trial judge explicitly misstated the law in stating what would make the defendant eligible for an extended-term sentence. Id. at 485, 248 Ill.Dec. 480, 734 N.E.2d 188. In People v. Hurley, 277 Ill.App.3d 684, 214 Ill.Dec. 606, 661 N.E.2d 460 (1996), at the sentencing hearing, the trial judge mistakenly stated that the defendant's prior conviction of murder made him eligible for an extended-term sentence; the State and the defendant's attorney agreed; and the State sought an extended-term sentence. Id. at 686–87, 214 Ill.Dec. 606, 661 N.E.2d 460. These cases (and others that defendant cites)...