Opinion
4-21-0727 4-21-0728
07-06-2022
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANGELA M. REDDING, 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 Logan County Nos. 19CF46 19CF183 Honorable William G. Workman, Judge Presiding.
JUSTICE STEIGMANN delivered the judgment of the court. Justices Turner and Cavanagh concurred in the judgment.
ORDER
STEIGMANN JUSTICE
¶ 1 Held: The appellate court affirmed defendant's sentence.
¶ 2 In March 2019, defendant, Angela M. Redding, was charged with one count of driving while her license was revoked (DWLR), a Class 4 felony (625 ILCS 5/6-303 (West 2018)). In October 2019, she was charged in a separate case with another count of DWLR. Id. In May 2021, defendant entered into a partially-negotiated plea agreement in which she pleaded guilty to both counts of DWLR. In August 2021, the trial court sentenced defendant to consecutive prison terms totaling five years in prison.
¶ 3 Defendant appeals, arguing that her sentence was excessive because the trial court (1)failed to give proper weight to the impact of her incarceration on her minor son and (2)improperly considered "unproven" statements contained in the presentence investigation report (PSI). Defendant further argues that trial counsel was ineffective for failing to object to the information in the PSI. We disagree and affirm defendant's sentence.
¶ 4 I. BACKGROUND
¶ 5 A. The Charges and Guilty Plea
¶ 6 In March 2019, defendant was charged with one count of DWLR (625 ILCS 5/6-303 (West 2018)) for driving in January 2019 while her license was revoked. In October 2019, she was charged in a separate case with DWLR for driving in September 2019 while her license was revoked.
¶ 7 In May 2021, defendant entered into a partially-negotiated plea agreement in which she pleaded guilty to both counts of DWLR in exchange for the State's dismissing (1) her pending petitions to revoke her probation in unrelated criminal cases and (2) a speeding ticket she received in September 2019. The trial court accepted the plea, continued the case for sentencing, and ordered the preparation of a PSI, which was filed in August 2021.
¶ 8 B. The Sentencing Hearing
¶ 9 In October 2021, the trial court conducted a sentencing hearing.
¶ 10 1. The PSI
¶ 11 The PSI, which was filed in August 2021 and considered by the trial court at the sentencing hearing without objection, detailed defendant's (1) criminal history, (2) family and educational background, (3) employment and financial status, and (4) history of substance use. Defendant's criminal history showed that she had several juvenile offenses, beginning with an aggravated battery adjudication at age 15. As an adult, defendant had seven prior misdemeanor convictions and five prior felony convictions. The PSI also reported that defendant admitted using cannabis since her teens, had two convictions for driving under the influence, and had failed to comply with substance abuse treatments or recommendations.
¶ 12 Regarding the circumstances of defendant's September 2019 commission of DWLR, the PSI stated the following.
"The Sergeant immediately turned his squad car around and attempted to catch up to [defendant's] vehicle. *** [H]e noticed the gap between his squad car and the defendant had immensely widened as if she was rapidly accelerating in attempt to evade him. The Sergeant *** began to rapidly accelerate and reached speeds of approximately 100 miles per hour at which time he was unable to close the gap between his squad car and the defendant. *** [The Sergeant] observed [defendant's vehicle] proceed north onto 1100th Avenue from Old Route 121 and then turn west onto 2000th Street. *** [H]e observed the vehicle sitting in the driveway *** [at] defendant's mother's house. The Sergeant *** pulled in behind the vehicle, [and] he observed the driver's seat to be empty with a front seat passenger still sitting inside. *** [H]e then exited his vehicle to speak with the passenger, and as he proceeded to the passenger side of the vehicle, he observed the defendant exit the front door of the residence and state 'It's me'. *** [The Sergeant] placed the defendant under arrest by placing her in handcuffs. *** [H]e issued the defendant a citation for [DWLR] and a citation for Speeding 26-34 miles per hour Over the Posted Limit."
¶ 13 2. Evidence in Aggravation and Mitigation
¶ 14 In aggravation, the State offered two exhibits to the trial court: (1) a certified copy of defendant's driving abstract, showing defendant's lengthy history of driving violations and (2) "a printout from the Department of Corrections as to Casey Anderson," who is the father of defendant's 12-year-old son, A.A.
¶ 15 In mitigation, defendant called (1) John Olmstead, defendant's stepfather; (2) Ruby Olmstead, defendant's mother; (3) Makayla Anderson, defendant's 18-year-old daughter; and (4) A.A. Defendant also testified. John testified that he was temporarily unemployed because of recent heart surgery and was being supported by his wife's income. He opined that if defendant went to prison, then A.A. would have to move in with him and his wife, which would "create quite a problem financially."
¶ 16 Ruby testified that because of John's condition, finances were tight and they were already visiting a food pantry. Due to Ruby's work schedule, she would likely have trouble picking up A.A. from after-school activities. However, when asked whether she could support A.A., she said, "Probably. We would have to make it work."
¶ 17 Makayla testified that she was attending community college and, after she graduated, would continue going to school elsewhere. She stated that she "probably was the only one" around that would provide transportation for A.A. when she was not away at school.
¶ 18 A.A. testified that, when his mother was home, she provided meals and helped him with homework. The two would ride bikes together and conversed frequently. A.A. opined that if his mother was not in his life," [he] would probably go crazy because she is [his] loved one, and [he] literally can't do anything without her."
¶ 19 Defendant testified that she was employed as a union assembler at Eaton Corporation, a job she had held for almost a year. Defendant worked between 50 and 58 hours a week. A coworker drove her to and from work. Defendant explained that she had obtained a driving permit through the Secretary of State but let it expire, which led to her first charge of DWLR. On cross-examination, defendant admitted that she knew she did not have a valid permit in September 2019, when she was charged with her second DWLR, and she tried to drive away from the police car when it began to follow her. She acknowledged that she (1) drove to her mother's house despite the fact that the police car had its emergency lights on and (2) was charged with speeding.
¶ 20 Also, defendant submitted to the court a letter from Treatment Alternatives for Safe Communities (TASC). The letter stated that in August 2021, defendant participated in a full behavioral health assessment with TASC, which determined she met the criteria for "Sedative Use Disorder" and "Cocaine Use Disorder."
¶ 21 3. The Parties' Arguments
¶ 22 The State recommended a three-year sentence for each offense, to run consecutively. The State argued that its recommended sentences would be appropriate because defendant "ha[d] a long, substantial history in both juvenile court and adult court, and [the] sentences [were] necessary to deter others from the same conduct." The State further argued that defendant committed both DWLR offenses while she was on probation for another felony case. The State highlighted that defendant obtained her second DWLR charge after" [s] he drove in excess of 100 miles an hour for several miles; and as soon as she got to her mother's house, she ran inside. Again, putting lives at risk."
¶ 23 The State also pointed out that the mandatory "minimum for each case is 180 days in jail with no day-for-day, and these cases are mandatory consecutive." The State noted that, based on the Department of Corrections printout the State submitted, Casey Anderson was "expected to parole in less than a year." Accordingly, even if defendant was "sentenced to probation, she's still looking at long-term in the County Jail *** and in all likelihood, Casey Anderson may be released before she [was] released." The State argued that work release was not appropriate for defendant because she would be out in the community where she could continue to drive and do drugs.
¶ 24 Defendant argued that section 5-5-3.1 (a)(18) of the Unified Code of Corrections (Code) (730 ILCS 5/5-5-3.1(a) (18) (West 2020)) required the court to sentence a parent in a way that allows the parent to continue to care for children, unless the parent poses a significant risk to the community that outweighs the risk to the child. Defendant claimed, therefore, that because she (1) did not pose a significant risk to the community and (2) was the only person who could drive A.A. to after-school activities, she should not be sentenced to prison. Instead, defendant asked for a sentence of two years of TASC probation.
¶ 25 4. The Trial Court's Ruling
¶ 26 After hearing the parties' arguments, the trial court stated its findings, beginning with the effect on defendant's family.
"The Court does look at the fact that any incarceration, whether it is in the County Jail or in the Department of Corrections, is going to impact the defendant's family, specifically the 12 year old. The conduct of the defendant during the offenses, specifically the first one, I don't think I can find that one caused or threatened serious harm. I think there can be an argument as to a threat of serious harm on the second indication [sic] *** specifically at such a high rate of speed after she encountered the officer."
¶ 27 The court found defendant's criminal history to be strongly aggravating, noting that "defendant had clearly not led a law-abiding life for a substantial period of time-basically, her whole life-since she's been 17 years of age." (The PSI showed that defendant was 38 years of age at the time of the sentencing hearing.) Because the court believed that "probation would deprecate the seriousness of these offenses" the court sentenced defendant to two years in prison for the first DWLR conviction and three years in prison for the second conviction, to be served consecutively.
¶ 28 C. The Motion To Reconsider
¶ 29 In November 2021, defendant filed a motion to reconsider her sentence, asserting that the trial court erred by (1) not sentencing defendant to TASC probation because (a) she had a significant history of substance abuse and (b) her sentence failed to allow her to continue to care for her child and (2) finding that defendant drove at a high rate of speed because that evidence was introduced through the PSI and not witness testimony.
¶ 30 In December 2021, the trial court conducted a hearing on the motion to reconsider. Defendant argued, among other things, that hearsay statements contained in the PSI about defendant's driving at a high rate of speed could not provide evidence that the court could consider in aggravation. The court found that the reference to the high rate of speed was in the PSI, "which actually was admitted as a part of the State's aggravation, and the indication of the high rate of speed was in that report. There was no objection to that being put in there at that time." Regardless, the court stated that the high rate of speed was "only one of the small factors in why the Court gave the sentence that it did. This individual has a long, long criminal history." The court explained that defendant was on "drug court probation at the time of the second offense *** [and] I think it is clear that [defendant] does have a problem." Accordingly, the court reaffirmed its sentence, noting that "TASC probation [was] not required," especially when defendant "had a community-based sentence where she did have a treatment, successfully completed that, and then just a short time later, committed these criminal offenses."
¶ 31 This appeal followed.
¶ 32 II. ANALYSIS
¶ 33 Defendant appeals, arguing that her sentence was excessive because the trial court in fashioning her sentence (1) failed to give proper weight to the impact of her incarceration on her minor son and (2) improperly considered "unproven" statements contained in the PSI. Defendant further argues that trial counsel was ineffective for failing to object to the information in the PSI. We disagree and affirm defendant's sentence.
¶ 34 A. The Applicable Law and The Standard of Review
¶ 35 "All penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship." Ill. Const. 1970, art. I, § 11. "The [Code (730 ILCS 5/5-5-3.1, 5-5-3.2 (West 2020))] prescribes mitigating and aggravating factors that the trial court must consider when determining an appropriate sentence." People v. Sturgeon, 2019 IL App (4th) 170035, ¶ 105, 126 N.E.3d 703.
¶ 36 In general terms," [t]he trial court's sentence must be based upon the particular circumstances of the case, including (1) the defendant's history, character, and rehabilitative potential; (2) the seriousness of the offense; (3) the need to protect society; and (4) the need for punishment and deterrence." Id. ¶ 102. However, the trial court need not recite and ascribe value to each factor it considers during sentencing, nor attribute a defendant's rehabilitative potential greater weight than the seriousness of the offense or the need to protect the public. People v. Walker, 2021 IL App (4th) 190073, ¶ 73.
¶ 37 Further," [t]here is a strong presumption that the trial court based its sentencing determination on proper legal reasoning, and a court of review should consider the record as a whole, rather than focusing on a few words or statements by the trial court." (Internal quotation marks omitted.) Sturgeon, 2019 IL App (4th) 170035, ¶ 103. Absent explicit evidence to the contrary, the trial court is presumed to have considered all aggravating and mitigating factors in imposing a sentence. People v. Halerewicz, 2013 IL App (4th) 120388, ¶ 43, 2 N.E.3d 333.
¶ 38 Appellate courts accord great deference to the sentences imposed by trial courts and will not reverse a trial court's decision absent an abuse of discretion. Walker, 2021 IL App (4th) 190073, ¶ 64. "A trial court's sentence is an abuse of discretion only if it is greatly at odds with the spirit and purpose of the law or is manifestly disproportionate to the nature of the offense." Sturgeon, 2019 IL App (4th) 170035, ¶ 104.
¶ 39 B. This Case
¶ 40 1. The Trial Court's Consideration of the Impact of Incarceration on Defendant s Child
¶ 41 Defendant first argues that the trial court erred by not giving proper weight to the impact defendant's incarceration would have on her minor son, as required by section 5-5-3.1(a) (18) of the Code. 730 ILCS 5/5-5-3.1(a) (18) (West 2020). Defendant asserts that the trial court erred because her extended incarceration will detrimentally affect her son by placing him with "grandparents who were already struggling and seeking assistance for their own daily needs," when, in contrast, defendant has a well-paying job that allows her "to maintain her household with her son." Defendant suggests that her incarceration will force her son to go from a household in which he is properly cared for to one in which he is not adequately supported. We disagree.
¶ 42 Section 5-5-3.1(a) of the Code (730 ILCS 5/5-5-3.1(a) (West 2020)) provides factors for which the trial court" accord[s] weight in favor of withholding or minimizing a sentence of imprisonment." One of the factors the court must consider is whether the "well-being [of a defendant's child] will be negatively affected by the parent's absence." 730 ILCS 5/5-5-3.1 (a)(18) (West 2020). However, "the existence of a mitigating factor does not obligate the trial court to impose the minimum sentence," and we will "not substitute our judgment for that of the trial court merely because we would have weighed the mitigating factors differently." People v. Foster, 2022 IL App (2d) 200098, ¶ 53.
¶ 43 In the present case, nothing in the record indicates the trial court abused its discretion. Not only is there a presumption that the trial court properly considered the mitigating factors (Halerewicz, 2013 IL App (4th) 120388, ¶ 43), but the record explicitly shows that the court considered "that any incarceration *** is going to impact the defendant's *** 12 year old [son]."
¶ 44 Defendant pleaded guilty to two counts of DWLR, one of which defendant committed while awaiting trial for her first DWLR charge. Also, according to the PSI, defendant had attempted to elude a traffic stop by speeding away from the officers at about 100 miles per hour.
¶ 45 Regarding the mitigating evidence, defendant's stepfather and mother both testified that they would be able to take care of A.A. in defendant's absence. Moreover, A.A.'s father would likely be released from jail and would be able to help care for A.A. thereafter. Because of this testimony, the trial court could have determined that A.A. would not be without caregivers and housing.
¶ 46 In aggravation, the court focused its sentencing decision primarily on defendant's "long, long criminal history" and her having "successfully completed [a drug treatment program], and then just a short time later, committed these criminal offenses." Ultimately, the court concluded that a sentence was "necessary to deter others from similar conduct" and sentenced defendant to an aggregate five years in prison.
¶ 47 Based upon this record, we conclude that (1) the trial court's sentence is not "greatly at odds with the spirit and purpose of the law," (2) the court appropriately considered the sentencing factors, and (3) the court did not abuse its discretion.
¶ 48 2. The Court's Consideration of the PSI
¶ 49 Defendant next argues that the trial court improperly considered "unproven statements" in the PSI that she drove away from police at a high rate of speed on the date she committed the second DWLR. Initially, defendant concedes that she forfeited this issue by failing to raise it at the sentencing hearing but contends that we can review her claim as ineffective assistance of counsel for trial counsel's failure to object to the information contained in the PSI. See People v. Dunlap, 2013 IL App (4th) 110892, ¶ 12, 992 N.E.2d 184 ("When *** defense counsel affirmatively acquiesces to actions taken by the trial court, a defendant's only challenge may be presented as a claim for ineffective assistance of counsel on collateral attack."). We conclude that trial counsel's performance was not deficient.
¶ 50 To prevail on an ineffective assistance claim, a defendant must demonstrate that (1) counsel's performance fell below an objective standard of reasonableness and (2) counsel's deficient performance arguably prejudiced the defendant. People v. Veach, 2017 IL 120649, ¶ 30, 89 N.E.3d 366 (citing Strickland v. Washington, 466 U.S. 668, 687-88 (1984)). A failure to satisfy either prong precludes a finding of ineffectiveness. People v. Simpson, 2015 IL 116512, ¶ 35, 25 N.E.3d 601. Regarding the first prong," [w]here an objection would have been overruled, trial counsel is not required to make a losing objection to provide effective representation." People v. Ivy, 313 Ill.App.3d 1011, 1019, 730 N.E.2d 628, 636-37 (2000).
¶ 51 We note that defendant does not contend that the evidence in the PSI of her speeding is inaccurate; instead, she contends only that it contained "evidence of prior criminal activity" that should have been presented by a witness subject to cross-examination instead of by "hearsay allegations." We emphatically disagree.
¶ 52 This court has repeatedly held that" [t]he trial court may rely on all of the information in the unobjected to PSI to the extent it believes it is relevant and reliable." People v. Hibbler, 2019 IL App (4th) 160897, ¶ 56, 129 N.E.3d 755 (citing People v. Powell, 199 Ill.App.3d 291, 294, 556 N.E.2d 896, 898 (1990)). All that is required of the court is that "a defendant should have the opportunity to challenge the accuracy of the information in the PSI," which is why the "PSI must be given to counsel at least three days prior to sentencing so that they have a meaningful opportunity to review and investigate its contents." (Emphasis in original.) Id. ¶ 57.
¶ 53 We reiterate this court's suggestion in Hibbler that "trial courts, at the start of the sentencing hearing, ask all counsel if they received the PSI and if they found any inaccuracies," (id. ¶ 52) and we note that the trial court in the present case did much of what we recommended by stating the following: "And we are set here today for sentencing. The Court has been in receipt of the [PSI] filed in these matters on August 6th of 2021. Have the parties both received those presentence investigations?"
¶ 54 As this court wrote in Hibbler, trial counsel's failure to object to the information in the PSI is not a mere oversight but essentially amounts to a stipulation to the accuracy of the PSI's content in its entirety. Id. ¶ 58. And if an objection is raised to only a portion of the PSI, the absence of an objection to the rest of it constitutes a stipulation that the remainder of the PSI is accurate. Id. ¶ 59.
¶ 55 In the present case, defendant's argument is that, had trial counsel objected to the statements in the PSI, the State would have had to "meet its burden" on the speeding issue by presenting the aggravating evidence through the testimony of the arresting officer, who would then be subject to cross-examination.
¶ 56 Although defendant does not say so explicitly, the implication of her argument is that either (1) the State would have failed to produce the officer or (2) the officer would have been sufficiently impeached to render his testimony untrustworthy. However, on this record, we deem these suggestions to be absolutely groundless and without any merit whatsoever. Accordingly, defendant's claim of ineffective assistance fails.
¶ 57 Although not necessary for our decision, we note that requiring the State to call the arresting officer to testify about the circumstances of defendant's dangerous speeding during her second DWLR offense would almost certainly have proved detrimental to defendant. The officer likely would have painted a vivid picture of exactly how dangerous defendant's conduct was.
¶ 58 III. CONCLUSION
¶ 59 For the reasons stated, we affirm the trial court's judgment.
¶ 60 Affirmed.