Opinion
5-20-0179
03-09-2022
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL BROCK, Defendant-Appellant.
This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of St. Clair County. No. 19-CF-1526 Honorable John J. O'Gara, Judge, presiding.
JUSTICE VAUGHAN delivered the judgment of the court. Justices Cates and Moore concurred in the judgment.
ORDER
VAUGHAN JUSTICE.
¶ 1 Held: The court did not abuse its discretion in sentencing defendant to five years and six months' imprisonment.
¶ 2 Defendant was convicted of aggravated battery of a peace officer and resisting an officer. He appeals his sentence of five years and six months' imprisonment for the aggravated battery of a peace officer conviction.
¶ 3 I. BACKGROUND
¶ 4 Defendant was charged, by information, with (1) aggravated battery of a peace officer for knowingly striking Officer Kurt Schmulbach about the face with his fist, knowing Officer Kurt Schmulbach was a peace officer engaged in the execution of his official duties, in violation of section 12-3.05(d)(4) of the Criminal Code of 2012 (Code) (720 ILCS 5/12-3.05(d)(4) (West 2018)); (2) aggravated battery for punching Officer Schmulbach in the face causing great bodily harm, in violation of section 12-3.05(a)(3) of the Code (id. § 12-3.05(a)(3)); and (3) resisting an officer in violation of section 31-1 (a) of the Code (id. § 31-1(a)). The charges stem from an incident occurring on October 6, 2019. Officer Schmulbach and Officer Cameron Rettig were dispatched to 409 South Cherry Street in Lebanon, Illinois. After Officer Schmulbach spoke with two complaining witnesses, he believed defendant and Brandon Harris were involved.
¶ 5 Consequently, Officers Schmulbach and Rettig went to the neighboring house, 413 Cherry Street, in an attempt to locate defendant. Jack Brock, defendant's father, answered the door. He had just taken a shower and gotten dressed. Jack told the officers that defendant was not home and that he did not know where he was. Hereafter, the State and defense's narrative of events diverged.
¶ 6 The State's witness, Officer Schmulbach, testified that while Officer Rettig and he were still in Jack's yard, he overheard Jack yelling at someone inside. Officer Schmulbach walked to the open windows on the north side of the home and heard Jack and defendant speaking. He averred that he was familiar with defendant's voice. Officer Schmulbach yelled through the window for defendant to come to the front door, and defendant complied.
¶ 7 Officer Schmulbach met defendant at the front door and explained that during his investigation defendant became a person of interest. Defendant told Officer Schmulbach that he had been home the whole time. At some point, Brandon Harris also came to the door. Officer Schmulbach asked defendant to come with him to the police station for questioning, and defendant fled inside the home. As Officer Schmulbach pursued defendant, Officer Rettig handcuffed Harris for safety reasons.
¶ 8 Officer Schmulbach briefly lost sight of defendant as he entered the residence and found defendant in a living/dining room. Defendant proceeded to the kitchen and Officer Schmulbach followed as Officer Rettig remained by the front door with Harris. Officer Schmulbach testified that it was loud inside the kitchen. He stated that he kept repeating that defendant was under arrest and needed to come with him, but defendant refused and responded that he was not going anywhere.
¶ 9 Officer Schmulbach then grabbed defendant's right wrist and defendant started to push off the kitchen island back into Officer Schmulbach. Defendant broke free. Officer Schmulbach deployed his taser but-being in close range-the taser was ineffective. He testified that both probes struck defendant but defendant's "attitude, demeanor and his body language didn't change." The officer attempted to do a drive-stun follow-up but that was also unsuccessful. Defendant then tried to escape from the kitchen, but Officer Schmulbach was able to corner defendant. Officer Schmulbach testified that at that point he and defendant were actively fighting, and defendant punched him in the nose with a closed fist. He described "actively fighting" as "pushing, slapping, just kind of back and forth." Defendant was detained only after Officer Rettig successfully deployed his taser.
¶ 10 After defendant was secured, Officer Schmulbach noticed blood was coming from his nose. Defendant also complained of pain, saying his side area was hurting. Officer Schmulbach requested EMS for defendant. Officer Schmulbach rode with defendant in the ambulance to the hospital. Officer Schmulbach testified that later at the jail, he overheard defendant say, "I broke his nose and made him bleed everywhere."
¶ 11 On cross-examination, Officer Schmulbach averred that he had a pending worker's compensation claim for his injury. He further stated the injury did not result in time off from work. His nose did not swell, bruise, or require treatment. He was prescribed pain medication as needed but stated that he did not take any.
¶ 12 Officer Rettig also testified for the State. He stated that defendant appeared at the door followed by Harris. He handcuffed Harris and sat him in an office chair. While doing so, Officer Rettig could not see defendant. Officer Rettig proceeded into the kitchen, where he saw defendant standing over the island counter. Officer Rettig testified that defendant and Officer Schmulbach were talking, and their voices were getting loud. As Officer Rettig approached defendant's right side, Officer Schmulbach grabbed defendant's left wrist and instructed defendant that he needed to put his hands behind his back. Officer Rettig then grabbed defendant's right wrist. Defendant refused, straightened his arms, locking them out, and would not move them from the counter.
¶ 13 Defendant broke from the officer's grip and the interaction moved to the corner of the kitchen. Defendant was warned that he would be tased if he did not comply. Officer Schmulbach deployed his taser, but it was unsuccessful. Roughly 10 to 15 seconds later, defendant made a motion with his arm and his left side opened a bit more. Officer Rettig looked down to get his taser unholstered and deployed his taser with success. Defendant's body went rigid, and his arms were locked into position. At that point, the officers handcuffed defendant.
¶ 14 Officer Rettig testified that once he deployed his taser, defendant's body did not make contact with Officer Schmulbach. At no point did Officer Rettig observe defendant punch Officer Schmulbach, but after defendant was handcuffed, he saw blood coming from Officer Schmulbach's nose.
¶ 15 Officer Rettig also explained how his dashboard camera and the microphone on his person worked, as well as the procedure to retrieve the recordings. The State moved to admit the October 6, 2019, recordings and played them for the jury.
¶ 16 Because the camera was in Officer Rettig's patrol car and the microphone was attached to Officer Rettig, the visuals were limited but the entirety of the event could be heard. The recordings show the officers go up to a house, and you hear someone say defendant was not there. After further discussion, you see the officers walk into the yard. The person at the door engaged with the officers regarding whether they had a warrant to come into the house to look for defendant. The officers briefly stood in the yard when one of them said that they were going to go to the open windows as the other officer said, "he is yelling at someone in there." One officer then walked to the side of the house. Eventually, the officers went back to the door and a person-whom Officer Rettig identified as defendant-spoke with the officers and called Brandon to the door.
¶ 17 Shortly after, one officer said, "put your hands behind your back," and you can hear handcuffs clicking. Officer Rettig then said that he needed to check on "him." The audio recording then becomes loud, and it is difficult to decipher every statement. One officer said, a few times, that defendant needed to put his hands behind his back and to stop resisting. Defendant stated that he was not resisting and made several comments about the officers' lack of a warrant. There is then shuffling and a pop sound. Officer Rettig testified that this was Officer Schmulbach's unsuccessful taser. After more shuffling, defendant cried out and an officer stated that defendant needed to put his hands behind his back or defendant would "get it again." Once defendant was detained, Officer Schmulbach told defendant that he punched him in the nose. Defendant responded that if the officer was going to choke him out, "[he was] going to fight back."
¶ 18 Dr. Ricardo Garchitorena-the emergency physician who treated Officer Schmulbach-testified that Officer Schmulbach presented with some bruising and contusions on the left side of his nose. He ordered x-rays of Officer Schmulbach's orbital and nasal bones. Based on the x-rays and his examination, Dr. Garchitorena diagnosed Officer Schmulbach with a broken nose due to a blunt injury.
¶ 19 Defense counsel supported defendant's theory that the injury was an accident in reaction to the officers' aggressiveness through the testimony of Jack Brock. Jack testified that in addition to saying that defendant was not home, he told the officers that they needed a warrant to come into the residence. After he spoke with Officer Schmulbach, he saw the officers go back to their police vehicle. Jack closed the door and yelled upstairs to see if defendant would answer. Defendant then went to the door to talk to the officers.
¶ 20 Jack stated that the officers came inside as defendant made his way through the living room and dining room into the kitchen. He averred that he was at his kitchen island during the encounter. Jack observed Officer Schmulbach come up behind defendant and put defendant in a chokehold when defendant was in the dining room. Jack stated the officer was pulling defendant down to the ground as they made it to the kitchen. Jack then saw Officer Rettig-who was standing in front of defendant-tase defendant. He stated the first tase missed and hit the window. Officer Rettig deployed a second tase that struck defendant and defendant "reflexed." Jack testified that it was this reflex that bloodied Officer Schmulbach's nose. Jack heard Officer Rettig ask Officer Schmulbach how it happened but did not know Officer Schmulbach's reply. Jack clarified that he never saw defendant punch Officer Schmulbach.
¶ 21 On cross-examination, Jack testified that he never heard the officers say defendant was under arrest, to put his hands behind his back, or that defendant should come with the officers. He stated that defendant was not fighting the officers or resisting arrest, defendant was only trying to get Officer Schmulbach's arms from around his neck by pulling down on the officer's arms.
¶ 22 The jury found defendant guilty of aggravated battery of a police officer and resisting arrest. Defendant was acquitted of the aggravated battery based on great bodily harm to a peace officer.
¶ 23 At the sentencing hearing, the court admitted the presentence investigation report (PSI). It noted that it chose not to rely upon the acquitted conduct or matters that had been dismissed. It also stated that it considered the Illinois Department of Corrections' financial impact statement that determined the annual cost of incarcerating an individual during fiscal year 2016 was $26,331.
¶ 24 The court also admitted a letter-file-stamped February 11, 2020-from Alexis Estep. Estep stated that she was defendant's fiancée and that she could not attend the trial or sentencing hearing because she was disabled and in a wheelchair. She said that defendant was different than he used to be. Estep explained he was "out doing good" and working every day. She stated that defendant always took care of her and that he was her help and transportation. She also said that due to the age and health of defendant's father, he needed defendant's help 100% of the time. Estep requested the court give defendant probation and promised defendant would follow any court orders.
¶ 25 Jack Brock testified in support of defendant. He stated that defendant was a great help around the house. He averred that he was unable to do "a lot of things" because of his five back surgeries, heart attack, and strokes. He also stated that defendant had been working for the previous six months delivering bread and for his cousin building a house. Jack also believed that defendant seemed sober and was not getting into trouble.
¶ 26 The State argued that following factors in aggravation: (1) defendant's conduct caused or threatened serious harm (730 ILCS 5/5-5-3.2(a)(1) (West 2018)); (2) defendant's history of criminal activity (id. § 5-5-3.2(a)(3)); and (3) the necessity to deter others from committing the same crimes (id. § 5-5-3.2(a)(7)). In arguing against probation, the State relied on the PSI, noting that defendant was found unacceptable in his 2011 Treatment Alternative for Safe Communities assessment due to his history of noncompliance with probation and parole, and defendant failed to participate in court ordered Men Ending Domestic Violence program.
¶ 27 The State discussed defendant's criminal history, stating his criminality began as a juvenile in 1995 when he was convicted of aggravated battery and burglary. It also stated that defendant was convicted of burglary of a motor vehicle in 2000 and his probation for that crime was terminated unsuccessfully. In 2003, he was convicted of misdemeanor battery for striking Jack Brock in the head with a mallet. Probation for that crime was also terminated unsuccessfully because later in 2003 defendant was charged with choking a family or household member. Defendant was again placed on probation, which was also terminated unsuccessfully. Defendant was sentenced to 18 months' imprisonment upon the revocation of his probation.
¶ 28 Less than a month after his release, defendant was sentenced to one year imprisonment for punching a family or household member in the face. A little over six months after his release, he was sentenced to three years' imprisonment for burglary. While on parole, defendant was convicted of aggravated battery and sentenced to three years and six months' imprisonment. In 2011, he was placed on probation for retail theft, which was again terminated unsuccessfully, and he was sentenced to 30 months' imprisonment which ran consecutive to a two-year sentence for a 2011 domestic battery conviction for placing Jack Brock in a chokehold. The State noted that it would not argue the 2015 charge for which defendant was ultimately acquitted but asked the court to consider that defendant served a period of incarceration during that time and was not "on the street."
¶ 29 The State continued that defendant was charged with criminal damage to government supported property in 2019 and was out on a recognizance bond when the instant incident occurred. It further noted that defendant signed a pretrial supervised release on July 30, 2019, where defendant agreed he would not violate any criminal laws of any jurisdiction. Yet, on October 6, 2019, when Officer Schmulbach attempted to arrest defendant, defendant thought "it would be a good idea to go a couple of rounds with a police officer in his kitchen, ultimately punching him in the face and breaking his nose."
¶ 30 The State argued that it was necessary to deter others from the reprehensible behavior of intentionally striking an officer in the face to break his nose. It stated that "[l]aw enforcement has a tough enough job these days without defendants taking a swing at them when they're trying to affect an arrest." It further argued that defendant could not successfully complete probation and could not even avoid a new offense when out on a recognizance bond. Accordingly, the State requested defendant be sentenced to the maximum of seven years' imprisonment for aggravated battery of a peace officer as well as 60 days in jail for the misdemeanor offense of resisting a peace officer.
¶ 31 Defense counsel countered that defendant's criminal history started quite a long time ago and that he had since matured. Counsel further argued that defendant was ultimately sentenced to prison for all his convictions which indicated that prison was not rehabilitating defendant. He also noted that defendant did not have any anger management services for his adult felony cases.
¶ 32 Defense counsel asked the court to keep in mind that defendant was at home minding his own business when the police came to his home, and defendant was not charged with anything stemming from the officers' investigation. He argued that the entire incident occurred relatively quickly, lasting anywhere from 30 seconds to a minute. He further contended that the injury was not life-threatening, no medical follow-up or pain medication was needed, and Officer Schmulbach did not miss work. Counsel noted that defendant was gainfully employed, keeping busy, and staying out of trouble. His father had forgiven defendant for the incidents that involved him and was strongly in defendant's corner. Counsel also argued that defendant's girlfriend also relied on defendant to help her. As such, defense counsel requested the court sentence defendant to probation and order anger management.
¶ 33 Defendant also made a statement in allocution. He said that he "had a terrible life, being young, not listening, [thinking he knew] everything like every other teen-ager in life does." Defendant stated that meeting his girlfriend, Alexis Estep, in 2018 changed his life and allowed him to find the person that he truly was. He told the court how his family and girlfriend needed him. He testified that he helped them out in any way they needed, and his dad may not be around much longer. Defendant contended that prison brought the aggression out in him because you must defend yourself there and stand up for you who you are and what you believe. He stated if the court granted him probation, he would not mess it up. He also promised Officer Schmulbach that next time the officer needed to speak to him, he would talk willingly.
¶ 34 The court did not dispute the sincerity of defendant's statements but found that probation would deprecate the seriousness of his conduct and would be inconsistent with the ends of justice. It stated that it considered all the factors in mitigation and found that none of them were "particularly strong in this matter, and certainly don't overwhelm or persuade this Court." Instead, it found that the factors in aggravation "carr[ied] the day." The court stated that anyone who thinks about punching a police officer has no limits; "it is the beginning of the end of lawlessness, if we have a situation where individual citizens feel that they have the free will and free ability to harm a police officer." The court concluded the sentence was absolutely necessary to deter others-or at a minimum necessary to deter defendant. The court acknowledged that defendant had a long history of prior delinquency. It also stated, "more than anything, this offense is committed after being released on *** a recognizance bond in which someone *** promises that they will abide by the law and follow the law." Thereafter, the court sentenced defendant to prison for five years and six months for aggravated battery of a peace officer and to time served on the resisting arrest misdemeanor.
¶ 35 On March 9, 2020, defendant filed a motion to reconsider his sentence, arguing the sentence was excessive in violation of the eighth and fourteenth amendments to the United States Constitution and section 11 of the Illinois Constitution. The motion also alleged the sentence was unduly harsh based on defendant's history of criminality, occupation, mental history, family situation, economic status, and education.
¶ 36 At the hearing on the motion, defense counsel argued that defendant's girlfriend- who had multiple sclerosis-and his parents-who were in declining health-depended on defendant's help. Counsel requested the court consider sentencing defendant to probation with anger management or, alternatively, reduce the prison term.
¶ 37 The State noted that the five-year and six-month sentence was not the maximum sentence. Given defendant's history of criminality and the ongoing risk that he posed to the community, the State requested the court not disturb the sentence.
¶ 38 The court stated that it was satisfied that the sentence was appropriate and denied defendant's motion to reduce or modify sentence. Defendant timely appealed.
¶ 39 II. ANALYSIS
¶ 40 On appeal, defendant does not contend the court improperly relied on a factor or failed to consider a factor. Instead, he argues-given the overwhelming mitigating factors-the court abused its discretion in sentencing him to five years and six months' imprisonment for aggravated battery of a peace officer.
¶ 41 Defendant asserts that his conduct neither caused nor threatened serious physical harm to another. 730 ILCS 5/5-5-3.1(a)(1) (West 2020). In support, he claims that Officer Schmulbach's injury was-at most-an inconvenience, as the injury did not result in any meaningful treatment or time away from work. Defendant also relies heavily on the mitigating factor of excuse or justification for the criminal conduct in support of his contention that his sentence is excessive. Id. § 5-5-3.1(a)(4). He contends there is no indication in the record that police had a warrant to arrest him or enter his home. There is also no information regarding the police's justification in entering defendant's home when he retreated inside. He therefore contends-while he is not a sympathetic character-his crime was motivated by self-preservation rather than malice. Defendant also asserts that the court should have accounted for his status as a caregiver to his father. Id. § 5-5-3.1(a)(19). He acknowledges his prior criminal history but argues that because his last felony was in 2011 and misdemeanor was in 2015, his worst years are behind him. Id. 5-5-3.1(a)(7).
¶ 42 Because the trial court is in the better position to determine credibility and weigh the factors in aggravation and mitigation, it is afforded great deference in sentencing a defendant. People v. Etherton, 2017 IL App (5th) 140427, ¶ 26. When the imposed sentence falls within the statutory range, the trial court's sentencing decision will not be disturbed absent an abuse of discretion. Id. ¶ 28. "An abuse of discretion occurs only if a sentence greatly varies from the spirit and purpose of the law or where it is manifestly disproportionate to the nature of the offense." People v. Bunning, 2018 IL App (5th) 150114, ¶ 16 (citing People v. Stacey, 193 Ill.2d 203, 210 (2000)). We presume the court considered relevant mitigating factors, "absent some indication to the contrary, other than the sentence itself." People v. Willis, 2013 IL App (1st) 110233, ¶ 123.
¶ 43 We first note that defendant was sentenced to five years and six months' imprisonment for aggravated battery of a peace officer, which has a maximum sentence of seven years. See 720 ILCS 5/12-3.05(h) (West 2018); 730 ILCS 5/5-4.5-35(a) (West 2018). As such, the trial court's sentence falls within the statutory range and is given great deference.
¶ 44 After the parties presented their arguments, the court explicitly stated that it considered both the factors in mitigation and aggravation. We find no evidence that the court gave insufficient weight to the factors in mitigation which defendant urges for our consideration. It simply found the aggravating factors "carry the day."
¶ 45 Although it may be true that defendant may now be a changed man, such fact did not require the court to ignore defendant's criminal history. Defendant argues that prison has not rehabilitated him, but the record shows that it is equally true that probation has not proven to be fruitful either. Taking defendant's contention that the officers unlawfully entered his house and arrested him as true-arguendo-we disagree that defendant was placed in an impossible situation. While we do not condone unlawful entry of homes- assuming such was true-we do not find defendant's only option was to batter a police officer. See People v. McIntosh, 2020 IL App (5th) 170068, ¶ 47 ("an arrestee has no right to use force to resist an arrest by a known officer, even if the officer is effectuating an unlawful arrest"); People v. Villarreal, 152 Ill.2d 368, 380 (1992). Defendant could have complied with the officers' demands, and later sought any remedies to which he was entitled in court. See Villarreal, 152 Ill.2d at 380 (It is important to allow "police the ability to effectively perform their duties, without interference from citizens resorting to self-help remedies." Courts determine whether the police have exceeded their authority, and if so, provide remedies to those harmed.). Of importance, the record shows that defendant committed this crime while on recognizance bond after signing a promise to abide the law.
¶ 46 Given this record, we cannot say the below maximum sentence of five years and six months' imprisonment greatly varies from the spirit and purpose of the law or is manifestly disproportionate to the nature of the offense. Defendant's argument to the contrary essentially requests this court to reweigh the factors in his favor, which we cannot do. Etherton, 2017 IL App (5th) 140427, ¶ 26 ("a reviewing court may not overturn a sentence merely because it might have weighed the pertinent factors differently"). Accordingly, we find the court did not abuse its discretion in sentencing defendant to five years and six months' imprisonment.
¶ 47 III. CONCLUSION
¶ 48 The trial court did not abuse its discretion in sentencing defendant to five years and six months' imprisonment. Accordingly, we affirm.
¶ 49 Affirmed.