Opinion
4-21-0417 4-21-0418 4-21-0420
07-06-2022
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JEFFERI DEWITT BROADWAY, 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 Circuit Court of McLean County Nos. 20CF307, 20CF552, 20CF630 Honorable William A. Yoder, Judge Presiding.
JUSTICE HOLDER WHITE delivered the judgment of the court. Justices Turner and Cavanagh concurred in the judgment.
ORDER
HOLDER WHITE JUSTICE
¶ 1 Held: The appellate court affirmed, concluding (1) defendant is not entitled to a new sentencing hearing because (a) the trial court did not abuse its discretion in sentencing defendant to an aggregate sentence of eight years' imprisonment and (b) even assuming arguendo the trial court erred by considering factors inherent in the offenses, the error did not amount to plain error, and (2) defendant was not entitled to be sentenced under the mandatory supervised release amendment because the new sentencing scheme was not yet in effect when the trial court sentenced defendant.
¶ 2 On January 13, 2021, defendant, Jefferi Dewitt Broadway, pleaded guilty (1) in McLean County case No. 20-CF-307, to one count of unlawful possession with intent to deliver less than five grams of a controlled substance (methamphetamine) (720 ILCS 646/55(a)(1) (West 2018)) (count I), a Class 2 felony; (2) in McLean County case No. 20-CF-552, to one count of unlawful delivery of less than five grams of a controlled substance (methamphetamine) (id.) (count I), a Class 2 felony; and (3) in McLean County case No. 20-CF-630, to one count of unlawful delivery of less than five grams of a controlled substance (methamphetamine) (id.), a Class 2 felony.
¶ 3 Following a March 1, 2021, sentencing hearing, the trial court imposed four-year sentences in each of the three cases, with the sentences in McLean County case Nos. 20-CF-552 and 20-CF-630 to run concurrently to each other but consecutively to the sentence in McLean County case No. 20-CF-307, for an aggregate sentence of eight years' imprisonment. The court also ordered defendant's sentence be followed by a period of two years of mandatory supervised release (MSR). Subsequently, defendant filed an amended motion to reconsider sentence and a motion to withdraw guilty plea. Following a July 16, 2021, hearing, the trial court denied defendant's motions.
¶ 4 Defendant appeals, arguing (1) we should vacate and remand for resentencing because (a) his sentence is excessive where there was significant mitigating evidence presented showing that he had begun substance-abuse treatment, was seeking employment, and had remained clean and sober after being released from custody and (b) the trial court improperly relied on factors in aggravation that are inherent in the offenses, and (2) defendant was denied his right to elect sentencing under a new sentencing scheme that reduced the term of MSR for Class 2 felonies from two years to one year. We docketed defendant's appeal in (1) McLean County case No. 20-CF-307 as No. 4-21-0417, (2) McLean County case No. 20-CF-552 as No. 4-21-0418, and (3) McLean County case No. 20-CF-630 as No. 4-21-0420. We have consolidated defendant's cases for review. We affirm.
¶ 5 I. BACKGROUND
¶ 6 In April 2020, the State charged defendant by information in McLean County case No. 20-CF-307, with one count of unlawful possession with intent to deliver a controlled substance (methamphetamine) (id.) (count I) and one count of unlawful possession of a controlled substance (methamphetamine) (id. § 60(a)) (count II). In July 2020, a grand jury charged defendant by indictment, in McLean County case No. 20-CF-552, with one count of unlawful delivery of a controlled substance (methamphetamine) (id. § 55(a)(1)) (count I), one count of unlawful possession of a controlled substance (alprazolam) (720 ILCS 570/402(c) (West 2018)) (count II), and one count of unlawful possession of a controlled substance (clonazepam) (id.) (count III). Also, in July 2020, the State charged defendant by information, in McLean County case No. 20-CF-630, with one count of unlawful delivery of a controlled substance (methamphetamine) (720 ILCS 646/55(a)(1) (West 2018)).
¶ 7 A. Guilty Plea
¶ 8 On January 13, 2021, defendant pleaded guilty (1) in McLean County case No. 20-CF-307, to one count of unlawful possession with intent to deliver less than five grams of a controlled substance (methamphetamine) (id.) (count I), a Class 2 felony; (2) in McLean County case No. 20-CF-552, to one count of unlawful delivery of less than five grams of a controlled substance (methamphetamine) (id.) (count I), a Class 2 felony; and (3) in McLean County case No. 20-CF-630, to one count of unlawful delivery of less than five grams of a controlled substance (methamphetamine) (id.), a Class 2 felony. In exchange for defendant's guilty plea, the State agreed to dismiss the remaining charges in those cases and other charges pending against defendant in separate cases.
¶ 9 The State asserted a factual basis as follows:
"In regards to 2020-CF-307, Count I, the State would present evidence and testimony that on April 10, 2020, the Bloomington Police Department patrol responded to a 911 hang-up call in Bloomington, Illinois. Responding officers made contact with the defendant, Jefferi Broadway, who was arrested for-or who was arrested that day. Defendant, Jefferi Broadway, was linked to a plastic baggy that was discovered with purported methamphetamine that was packaged for sale. The weight was approximately .5 grams. And Bloomington Police Department officers also discovered a scale.
In regards to 2020-CF-552. The State would present evidence and testimony as to the following: On June 29th of 2020, the Bloomington Police Department vice unit was conducting an investigation into methamphetamine sales involving the defendant. And on that date Bloomington Police Department confidential source 1364 purchased a personal use amount of methamphetamine from the defendant, Jefferi Broadway, for $100. A field test of the purported methamphetamine indicated positive for the presence of methamphetamine. All events happening in McLean County, the State of Illinois.
And if this case were to proceed to trial, along with 20-CF-630, the State would present evidence and testimony as to the following: On May 19th of 2020, the Normal Police Department
vice unit was conducting an investigation into methamphetamine sales involving this defendant. That a controlled buy transaction made by Normal Police Department vice unit, the police informant confidential source 919 occurred with the defendant Jefferi Broadway. Methamphetamine that was sold to the confidential source weighed approximately 4.5 grams, and a field test indicated positive for the presence of methamphetamine. The street value for 4.5 grams of methamphetamine is estimated to be $450, which is the factual basis for the street value fine. All events happening in McLean County, State of Illinois." Defense counsel stipulated to the State's factual basis.
¶ 10 The trial court informed defendant the Class 2 felony offenses defendant would be pleading guilty to were punishable by a minimum period of incarceration of three years in prison and a maximum period of seven years in prison, followed by a two-year period of MSR. The court also informed defendant "if the Court imposed a prison sentence on 20-CF-307, that prison sentence would be consecutive to any prison sentence that would be imposed in 20-CF-552 and 20-CF-630." Subsequently, defendant pleaded guilty, and the court stated, "Sir, I am going to find that you have entered a knowing and voluntary plea, that there is a factual basis to support the plea. I am going to accept that plea and set this case over for a sentencing hearing." The court also ordered defendant be released from custody while he awaited sentencing. ¶ 11 B. Defendant's Sentencing Hearing
¶ 12 On February 26, 2021, defendant filed a motion to continue. In the motion, defendant asked the trial court to continue his sentencing hearing because he was scheduled to start substance-abuse treatment on March 1, 2021, the same day as sentencing. On March 1, 2021, the trial court held a sentencing hearing. Before proceeding to sentencing, the trial court allowed the parties to address defendant's February 26, 2021, motion to continue. Ultimately, the court denied the motion and proceeded to sentencing.
¶ 13 The State first presented evidence relating to defendant's efforts to seek treatment for his substance abuse. Specifically, the State introduced a letter dated March 1, 2021, from an administrative assistant at Gateway Foundation who stated that on February 17, 2021, defendant participated in a consultation and it was determined he met the criteria for residential treatment services. The administrative assistant provided defendant was offered a bed on February 18, 2021, but declined the bed along with being added to the waitlist.
¶ 14 The State then provided evidence by way of proffer of a police report from Bloomington Police Department Detective Kevin Raisbeck as to McLean County case No 20-CF-552. On July 10, 2020, Detective Raisbeck began monitoring defendant's video and telephone activity while in jail, which included a short video visit and several phone calls to a juvenile, H.S. During the calls, defendant spoke with H.S. and Donald Connelly, also known as Frankie. Defendant directed H.S. and Connelly to a parking lot to search for "the stuff, believed to be illicit substances, and a digital scale." When Connelly only found the digital scale, defendant directed him to a second location "along a chain link fence" to search for defendant's "magnetic case." Connelly found defendant's case and H.S. "counted the contents of the magnetic case and related to [defendant] there were 19 inside."
¶ 15 Defendant then directed Connelly and H.S. back to where the digital scale was found and told them "where the illicit substances was [sic] buried and they might have to get dirty." Connelly and H.S. only found an empty bag, but Connelly tasted the residue of the bag and stated, "it tasted like the stuff." Defendant, Connelly, and H.S. then "talked about how the rain could have flooded the area and washed out the bag." At that time, defendant "sounded defeated and said, 10 Gs down the drain." Defendant then directed H.S. to tell Connelly "what was in the magnetic case" and if Connelly wanted them. Police later stopped Connelly and H.S., who had a box containing hydrocodone pills.
¶ 16 Following the State's presentation of evidence, defense counsel called defendant to testify in mitigation. Defendant testified that at the time of his offenses in 2020, his use of methamphetamine and alcohol was "out of control." However, defendant stated he was not in the business of trying to make money from selling illegal drugs; rather, he sold drugs to support his habit. Defendant agreed that it was "the drugs and the alcohol that caused [him] to get in trouble this past year."
¶ 17 Defendant testified that while he was in the McLean County jail from July 2020 until January 2021, he got clean and sober. Defendant also took advantage of mental-health services while in jail. Defendant testified that since his release he was maintaining sobriety. Following his release in January 2021, defendant removed himself from the people and places that were getting him in trouble. Defendant resided in a sober-living facility in Springfield and he stated his sober-living facility involved" [b]eing sober, random drug tests, attend meetings two times a week, [and a] curfew of 11 o'clock." Defendant acknowledged he was offered a residential treatment bed as stated in the letter presented by the State. However, defendant declined the bed because he preferred intensive outpatient treatment so he could try to gain employment and pay his child-support obligations. Defendant testified he recently interviewed for a job but had not yet been offered employment.
¶ 18 Following the presentation of evidence, the State recommended the trial court sentence defendant to four years' imprisonment in each case with the sentences in two cases to be served concurrently to each other and consecutively to defendant's third case, for an aggregate eight-year sentence. The State noted the aggravating evidence presented showed defendant previously directed drug activity from a jail cell and demonstrated he could not comply with conditions of probation. Further, the State suggested the trial court authorize defendant to apply for treatment while incarcerated to address his substance-abuse issues.
¶ 19 Defense counsel argued defendant's three cases were the result of defendant's drug addiction and should be viewed as an "ongoing incident" and "completely different than any of his criminal history." Further, defense counsel provided that if not for the COVID-19 pandemic, defendant likely would have remained in custody when he was first arrested in 2020 instead of being repeatedly released, which led to his continued substance abuse. Defense counsel asserted defendant was making progress in the six weeks since he was released from custody and argued that defendant should be given the opportunity to show he could comply with probation with drug treatment ordered. Defendant then made a statement in allocution.
¶ 20 In imposing sentence, the trial court considered defendant's presentence investigation (PSI) report, the letter from the Gateway Foundation presented by the State, the State's proffer, defendant's testimony, the evidence in aggravation and mitigation, defendant's statement in allocution, and the recommendations of the parties. The PSI report detailed defendant's (1) criminal history; (2) family, educational, and employment background; (3) mental health issues, including an unspecified bipolar disorder diagnosis and an unspecified anxiety disorder diagnosis; and (4) history of substance abuse. The PSI report disclosed that at the time of the February 11, 2021, PSI interview, defendant was participating in mental health counseling sessions.
¶ 21 The trial court initially stated there was "no doubt" defendant suffered from "a serious drug addiction and need-need[ed] treatment in order to resolve that." However, the court noted it was "unfortunate" defendant turned down the residential treatment offered by Gateway because that "would have been the preferred treatment." Moreover, the court found defendant had yet to find employment, his reason for turning down inpatient treatment.
¶ 22 The trial court then considered the factors in aggravation and mitigation, stating it considered all the factors, not just the ones it listed. The court first addressed the relevant factors in aggravation. The court found defendant's conduct caused or threatened serious harm because while many people consider drugs "a nonviolent crime, the scourge of methamphetamine has kind of taken over for opioid addiction and is doing serious harm to a great deal, great many people in the community who are addicted to it." The court stated,
"And I do believe contrary to your statement that you were dealing this, not just for you to feed your addiction but to-but for profit, as would be evidenced by the proffer that was made by the People of wherein there was a comment made by, you know, $10,000 down the drain, or thereabouts, the-but this conduct certainly caused or threatened serious harm."
¶ 23 The court found defendant received compensation for committing the offense and noted that "any drug dealing case there is compensation for." The court also found (1) defendant had a significant history of criminal activity, (2) a sentence was necessary to deter others from committing the same offense, and (3) defendant committed a felony while on bail pending trial. The court also noted that once defendant went back into custody, "the conduct still didn't change, as evidenced by the July 10th phone call where you're directing two other people, one of whom-at least one of whom was a juvenile, to follow your directions and retrieve other drugs that had been hidden."
¶ 24 The trial court then addressed the relevant factors in mitigation. Specifically, the court stated,
"Factors in mitigation-and, again, this may not be a complete list, but the Court can't find that the defendant's conduct neither caused nor threatened serious physical harm; that you weren't compensated because you were found that in relation to factors in mitigation; defendant acted under strong physical provocation, no; substantial grounds tending to excuse the conduct, no; defendant's conduct was induced or facilitated by someone else, no; compensated or will compensate the victims, no; no prior history of criminal offenses, no; defendant was-the defendant's conduct was the result of circumstances unlikely to reoccur, I don't think you can ever say that, understanding the nature of addiction in a case like this where somebody is in full blown addiction and has turned down an opportunity for inpatient care.
Character and attitude of the defendant indicates unlikely to commit another crime. I am happy that you are in this sober living environment. And I think that you have a desire, it seems like, to
comply with the facility in which you live and maintain your sobriety.
The defendant likely to comply with terms of probation, I can't make that finding. I think that's the total unknown at this point, understanding the nature of addiction; excessive hardship to the dependents, certainly they go without-without the defendant's financial assistance; imprisonment of defendant would endanger mental or medical condition, that's not been established; defendant is intellectually disabled, I don't find that at all. I find you to be very articulate. That you sought or obtained emergency medical assistance for an overdose. I don't find that to be the case.
So, again, that's not an exhaustive list, but that is a list of some of the factors that the Court has found."
Ultimately, the trial court found "a community based sentence in relation to these three files would deprecate the seriousness of the offenses and would be inconsistent with the ends of justice." The court agreed with the State's recommendation and determined "a period of imprisonment in the Illinois Department of Corrections is necessary for the protection of the public." The court imposed four-year sentences in each of the three cases, with the sentences in McLean County case Nos. 20-CF-552 and 20-CF-630 to run concurrently to each other but consecutively to the sentence in McLean County case No. 20-CF-307, for an aggregate sentence of eight years' imprisonment. The court ordered defendant's sentences be followed by two years of MSR. The court also ordered "the box be checked, that these offenses were caused by defendant's addiction to drugs, and that he be eligible for receiving treatment while in the Department of Corrections." Subsequently, the court filed a written sentencing order.
¶ 25 C. Defendant's Motions to Vacate Guilty Plea and Reconsider Sentence
¶ 26 In June 2021, defendant filed an amended motion to withdraw guilty plea and an amended motion to reconsider sentence. In his amended motion to reconsider sentence, defendant argued (1) his sentence was excessive, (2) he "provided letters of recommendation to his attorney, and they were not presented to the court as mitigation," and (3) the trial court misinterpreted several facts in sentencing defendant. Specifically, defendant provided that "during the imposition of sentence, the court noted that the defendant was dealing with drugs worth $10,000. The reference in the police reports was to' 10g's', meaning 10 grams not $10,000." Defendant asserted his reference to "10g's" as 10 grams was corroborated by the PSI report which provided that, in each case, "the amount of drugs was less than 5 grams" and defendant's testimony where he admitted he was a drug user and sold drugs to support his habit. Defendant further argued the trial court focused on his denial of a spot in an inpatient treatment program when defendant "presented evidence that he was trying to gain employment in order to pay child support and thought that outpatient would be more appropriate." Defense counsel also filed a certificate of compliance pursuant to Illinois Supreme Court Rule 604(d) (eff. July 1, 2017).
¶ 27 On July 16, 2021, the trial court held a hearing on both defendant's amended motion to withdraw guilty plea and amended motion to reconsider sentence. The court first considered defendant's amended motion to withdraw guilty plea. The court heard arguments by the parties and testimony from defendant. Ultimately, the trial court denied defendant's motion to withdraw guilty plea, finding defendant "was properly admonished, [and] that he entered into a knowing and voluntary plea."
¶ 28 The court then considered defendant's amended motion to reconsider sentence. The court again heard arguments by the parties and testimony from defendant. Defendant testified he provided a letter of recommendation from Brian Doggett to his attorney prior to sentencing that was never presented to the court during sentencing. Defendant also testified about the proffer the State offered at sentencing. Defendant acknowledged he was familiar with the phone conversation discussed in the State's proffer; however, defendant explained the reference to "Ten Gs was ten grams as in the ten grams me and two other people purchased of methamphetamine." Defendant testified he never possessed more than five grams of methamphetamine at any time. Defendant also testified he declined inpatient treatment in favor of outpatient treatment so he could try and find employment to help pay child support.
¶ 29 Ultimately, the trial court denied defendant's amended motion to reconsider sentence. Specifically, the court stated,
"I have not read the transcript of the sentencing hearing, but I do have some recollection of it. I don't specifically recall the $10,000 comment, but I'll accept the representation from [defense counsel] that it was made and potentially incorrectly interpreted. I'll also- I've also accepted the letter written by Brian Doggett on behalf of the Defendant.
When I imposed the sentence in this case I had limited information presented to me. I had a pre-sentence report that was prepared and submitted, amended by the parties. I'm sorry. It was
submitted. It listed a substantial criminal history of the Defendant; these being the fifth, sixth, and seventh felony convictions with the eighth and ninth obviously being dismissed pursuant to this plea.
The pre-sentence investigation indicated many things including that the Defendant had not signed releases, and so it was somewhat incomplete in relation to the treatment history and other history of the Defendant.
The-in my ruling in this case my imposing the sentencing that was imposed the Court considered all relevant statutory factors, all the evidence that was presented. I believe that the absence of the recommendation letter would not have changed the sentence that I imposed. I believe that the sentence I imposed-I believe then and I believe today that the sentence that I imposed in this case was the correct sentence and supported by all relevant factors, and the motion to reconsider the sentence is going to be denied."
¶ 30 This appeal followed.
¶ 31 II. ANALYSIS
¶ 32 On appeal, defendant argues (1) we should vacate and remand for resentencing because (a) his sentence is excessive where there was significant mitigating evidence presented showing that he had begun substance-abuse treatment, was seeking employment, and had remained clean and sober after being released from custody and (b) the trial court improperly relied on factors in aggravation that are inherent in the offenses, and (2) he was denied his right to elect sentencing under a new sentencing scheme that reduced the term of MSR for Class 2 felonies from two years to one year. The State disagrees and argues (1) defendant's sentences were not excessive, and defendant is not entitled to a new sentencing hearing and (2) defendant did not have a right to elect to be sentenced under Public Act 101-0652, § 10-281 (eff. July 1, 2021) (amending 730 ILCS 5/5-8-1), which took effect after he was already sentenced. For the following reasons, we affirm.
¶ 33 A. Sentencing
¶ 34 1. Excessive Sentence
¶ 35 Defendant first argues despite the wealth of mitigating evidence related to his substance-abuse and mental-health conditions, the significant progress he was making toward sobriety, and the availability of a sentence of probation that would allow him to continue on this positive path, the trial court improperly imposed an above-minimum sentence of eight years' imprisonment. Defendant asserts the trial court in sentencing defendant found no factors in mitigation, focused heavily on his criminal history, ignored evidence of his mental-health conditions, and misconstrued facts relating to the offenses.
¶ 36 The Unified Code of Corrections (Unified Code) sets forth mitigating and aggravating factors the trial court must consider when determining an appropriate sentence. 730 ILCS 5/5-5-3.1, 5-5-3.2 (West 2018). However, the trial court need not explicitly analyze each relevant factor or articulate the basis for the sentence imposed; thus, when mitigating evidence is presented before the court, it is presumed the court considered the evidence in imposing a sentence. People v. Knox, 2014 IL App (1st) 120349, ¶ 46, 19 N.E.3d 1070.
¶ 37 The trial court errs when the sentence is "greatly at variance with the spirit and purpose of the law, or manifestly disproportionate to the nature of the offense." People v. Stacey, 193 Ill.2d 203, 210, 737 N.E.2d 626, 629 (2000). As the court determines an appropriate sentence, "a defendant's history, character, and rehabilitative potential, along with the seriousness of the offense, the need to protect society, and the need for deterrence and punishment, must be equally weighed." People v. Hernandez, 319 Ill.App.3d 520, 529, 745 N.E.2d 673, 681 (2001). "A defendant's potential for rehabilitation is not given greater weight than the seriousness of the crime." People v. Haley, 2011 IL App (1st) 093585, ¶ 64, 960 N.E.2d 670.
¶ 38 The trial court has discretion in sentencing, and we will not reverse a sentence absent an abuse of discretion. People v. Snyder, 2011 IL 111382, ¶ 36, 959 N.E.2d 656. Such discretion in sentencing is necessary 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." People v. Ramos, 353 Ill.App.3d 133, 137, 817 N.E.2d 1110, 1115 (2004). "In considering the propriety of a sentence, the reviewing court must proceed with great caution and must not substitute its judgment for that of the trial court merely because it would have weighed the factors differently." People v. Fern, 189 Ill.2d 48, 53-54, 723 N.E.2d 207, 209-10 (1999). Moreover," [a] sentence which falls within the statutory range is not an abuse of discretion unless it is manifestly disproportionate to the nature of the offense." People v. Franks, 292 Ill.App.3d 776, 779, 686 N.E.2d 361, 363 (1997).
¶ 39 Defendant pleaded guilty to one count of unlawful possession with intent to deliver a controlled substance (methamphetamine) (720 ILCS 646/55(a)(1) (West 2018)), a Class 2 felony, in McLean County case No. 20-CF-307 and two counts of unlawful delivery of a controlled substance (methamphetamine) (id.), a Class 2 felony, in McLean County case Nos. 20-CF-552 and 20-CF-630, which each carry a sentence "of no less than 3 years and not more than 7 years" in prison (730 ILCS 5/5-4.5-35(a) (West 2018)). The trial court sentenced defendant to four-year sentences in each of the three cases, with the sentences in McLean County case Nos. 20-CF-552 and 20-CF-630 to run concurrently to each other but consecutively to the sentence in McLean County case No. 20-CF-307, for an aggregate sentence of eight years' imprisonment. Thus, because the court's four-year sentences in each case fell within the permissible sentencing range, it is presumed to be proper, and we will not disturb the sentence absent an abuse of discretion.
¶ 40 In determining defendant's sentence, the trial court considered the letter from the Gateway Foundation presented by the State, the State's proffer, defendant's testimony, defendant's statement in allocution, the recommendations of the parties, the evidence in aggravation and mitigation, and the information in defendant's PSI report. The PSI report detailed defendant's (1) criminal history; (2) family, educational, and employment background; (3) mental health issues, including an unspecified bipolar disorder diagnosis and an unspecified anxiety disorder diagnosis; and (4) history of substance abuse. The court summarized its reasoning for sentencing defendant to an aggregate sentence of eight years' imprisonment by discussing relevant factors in aggravation and mitigation.
¶ 41 Defendant argues the trial court abused its discretion when it failed to consider significant evidence in mitigation related to his drug addiction and subsequent substance-abuse treatment and his mental-health issues. Rather, defendant asserts the court based his sentence on his criminal history, the threat of harm caused by his sale of methamphetamine, the profit he gained from his drug sales, and the conclusion that a harsh sentence was required to deter others. Further, defendant contends the court misapprehended the evidence pertaining to his attempts to seek substance-abuse treatment where the court found the only viable treatment option to be inpatient residential treatment and ignored defendant's reasons for seeking outpatient treatment. Moreover, defendant argues the court drew incorrect conclusions about the aggravating factors where the court found defendant sold drugs for profit based on the proffer made by the State where defendant made a comment stating "10Gs" down the drain and the court interpreted that to mean "$10,000."
¶ 42 The State argues the trial court did not abuse its discretion when it sentenced defendant to an aggregate eight-year term of imprisonment where the court considered (1) the PSI report which disclosed defendant's history of receiving mental-health treatment, (2) defendant's serious drug addiction for which he needed treatment, (3) the fact that defendant turned down inpatient treatment for outpatient treatment because he needed to find employment to pay child support, (4) defendant's "significant history of prior criminal activity," (5) the serious threat of harm the sale of methamphetamine poses to the public, (6) the need for deterrence, and (7) the fact defendant committed a felony while on pretrial release and defendant, while incarcerated, directed a juvenile to retrieve his drugs. We agree with the State and find the trial court did not abuse its discretion in sentencing defendant.
¶ 43 While the trial court ultimately did not find any factors in mitigation applied here, we find the trial court did consider the PSI report and the relevant factors in mitigation and aggravation. In imposing defendant's sentence, the court considered numerous factors in mitigation, including (1) whether substantial grounds tended to excuse defendant's conduct; (2) whether defendant acted under strong physical provocation; (3) whether defendant's conduct was induced or facilitated by someone else; (4) whether defendant compensated or will compensate the victims; (5) prior history of criminal offenses; (6) whether defendant's conduct was the result of circumstances unlikely to reoccur; (7) whether the character and attitude of defendant indicates he is unlikely to commit another crime; (8) whether defendant was likely to comply with terms of probation; (9) excessive hardship to dependents; and (10) whether imprisonment of defendant would endanger mental or medical conditions. Moreover, the court emphasized "that's not an exhaustive list, but that is a list of some of the factors that the Court has found." As stated above, the trial court need not explicitly analyze each relevant mitigating factor or articulate the basis for the sentence imposed. Knox, 2014 IL App (1st) 120349, ¶ 46. Rather, any mitigating evidence presented before the court is presumed to have been considered by the court in imposing a sentence. Id.
¶ 44 We also reject any implication by defendant that the trial court failed to "give adequate weight" to his rehabilitative potential. "A defendant's potential for rehabilitation is not given greater weight than the seriousness of the crime." Haley, 2011 IL App (1st) 093585, ¶ 64. Moreover," [t]he trial court is not 'required to make an express finding that defendant lacked rehabilitative potential.'" Id. (quoting People v. Quintana, 332 Ill.App.3d 96, 109, 772 N.E.2d 833, 845 (2002)). Here, the trial court acknowledged defendant's serious drug addiction and that he needed treatment. While the court noted residential treatment "would have been the preferred treatment," the court stated, "I am happy that you are in this sober living environment. And I think that you have a desire, it seems like, to comply with the facility in which you live and maintain your sobriety." Further, the court considered defendant's PSI report which disclosed that at the time of the February 11, 2021, PSI interview, defendant started participating in mental-health counseling sessions. Moreover, at the June 2021 hearing on defendant's motion to reconsider sentence, the trial court provided the PSI report "was somewhat incomplete in relation to the treatment history and other history of the Defendant."
¶ 45 To the extent defendant argues the trial court drew incorrect conclusions from the proffer provided by the State and used that information in aggravation, the trial court acknowledged, at the June 2021 hearing on defendant's motion to reconsider sentence, its potentially incorrect interpretation of the "$10,000 comment" but ultimately found it imposed the "correct sentence" where it considered the evidence presented and all relevant statutory factors. We must consider the sentencing hearing in its entirety. When we do so, we find the court did not abuse its discretion when it sentenced defendant to an aggregate sentence of eight years in prison because the individual sentences in each case fell within the statutory range and were not disproportionate to the nature of the offense. The court at sentencing considered and weighed the relevant factors in mitigation. Where the court ultimately found the aggravating factors outweighed any mitigating factors, we cannot say the court abused its discretion by sentencing defendant to an aggregate sentence of eight years' imprisonment.
¶ 46 2. Factors Inherent in the Offense
¶ 47 Defendant next argues the trial court committed plain error under both prongs of the plain-error doctrine and deprived him of a fair sentencing hearing where the court, in aggravation, considered factors inherent in the offenses, including compensation received and the harm methamphetamine distribution poses to the community, and the sentencing evidence was closely balanced. The State agrees defendant forfeited his argument on appeal but argues defendant has not persuaded that mitigating factors related to his substance abuse and mental health disorders could be considered closely balanced with the aggravation from his "significant history of prior criminal activity that dates back many years." The State argues despite that criminal history, the court imposed near-minimum prison terms within the Class 2 felony sentencing range. Further, the State contends defendant cannot persuade that he was deprived of a fair sentencing hearing.
¶ 48" [T]o preserve a claim of sentencing error, both a contemporaneous objection and a written postsentencing motion raising the issue are required." People v. Hillier, 137 Ill.2d 539, 544, 931 N.E.2d 1184, 1187 (2010). Failure to make a contemporaneous objection and raise the issue in a written postsentencing motion constitutes forfeiture. People v. Sebby, 2017 IL 119445, ¶ 48, 89 N.E.3d 675. However, we may consider a forfeited claim where the defendant demonstrates a plain error occurred. Ill. S.Ct. R. 615(a) (eff. Jan. 1, 1967). To prevail under the plain-error doctrine, defendant must first demonstrate a clear and obvious error occurred. People v. Piatkowski, 225 Ill.2d 551, 565, 870 N.E.2d 403, 410-11 (2007). If an error occurred, we only reverse where (1) "the evidence is so closely balanced that the error alone threatened to tip the scales of justice against the defendant, regardless of the seriousness of the error" or (2) the "error is so serious that it affected the fairness of the defendant's trial and challenged the integrity of the judicial process, regardless of the closeness of the evidence." Id.
¶ 49 Defendant admits he failed to preserve this issue in his motion to reconsider. However, defendant asks this court to review the issue as a matter of plain error. Assuming arguendo the trial court erred by considering factors inherent in the offenses in aggravation, we find the error did not amount to plain error.
¶ 50 "Where the defendant claims first-prong plain error, a reviewing court must decide whether the defendant has shown that the evidence was so closely balanced the error alone severely threatened to tip the scales of justice." Sebby, 2017 IL 119445, ¶ 51. To determine "whether the evidence adduced at trial was close, a reviewing court must evaluate the totality of the evidence and conduct a qualitative, commonsense assessment of it within context of the case." Id. ¶ 53 (citing People v. Belknap, 2014 IL 117094, ¶¶ 52-53, 23 N.E.3d 325). Throughout this inquiry, the burden of persuasion remains on the defendant. People v. Nowells, 2013 IL App (1st) 113209, ¶ 19, 1 N.E.3d 578.
¶ 51 Defendant argues the evidence at sentencing was closely balanced. Defendant asserts that while he had a lengthy criminal history and failed to comply with probation, his criminal history was heavily influenced by his substance-abuse and mental-health conditions which the court failed to consider at sentencing. Further, defendant contends there was substantial evidence in mitigation presented at sentencing which showed he suffered from substance-abuse and mental-health issues, his recent progress in rehabilitating himself, his positive relationship with his mother, and his attempts to seek employment.
¶ 52 Based on the record, we find the totality of the evidence bares out the assessment that this case was not closely balanced. In sentencing defendant, the trial court considered the PSI report which described not only defendant's significant criminal history but also defendant's mental-health issues and history of substance abuse. Further, while the trial court considered the serious threat of harm the sale of methamphetamine poses to the public and that defendant received compensation for committing the offense, the court also considered numerous other factors in aggravation. Specifically, the court also found (1) defendant had a significant history of criminal activity, (2) a sentence was necessary to deter others from committing the same offense, and (3) defendant committed a felony while on bail. The court also noted that once defendant went back into custody, "the conduct still didn't change, as evidenced by the July 10th phone call where you're directing two other people, one of whom- at least one of whom was a juvenile, to follow your directions and retrieve other drugs that had been hidden."
¶ 53 Moreover, at the June 2021 hearing on defendant's motion to reconsider sentence, the trial court acknowledged its potentially incorrect interpretation of the "$10,000 comment" but ultimately found it imposed the "correct sentence" where it considered the evidence presented and all relevant statutory factors. As stated above, we must consider the sentencing hearing in its entirety.
¶ 54 Even without considering, as factors in aggravation, the compensation received and the harm methamphetamine distribution poses to the community, defendant fails to prove the sentencing hearing was closely balanced. Besides stating his substance abuse and mental-health disorders influenced his criminal history, defendant fails to provide specific evidence to support his contention. Further, defendant fails to show the factors in mitigation considered by the trial court and his desire to engage in outpatient substance-abuse treatment outweigh the factors in aggravation, including (1) his significant criminal history, (2) the need to deter others, and (3) his history of not complying with probation. Moreover, the trial court's four-year sentences in each case fell well within the permissible sentencing range. Given the evidence in this case was not closely balanced, defendant fails to satisfy the first prong of plain error. See Piatkowski, 225 Ill.2d at 565.
¶ 55 Defendant also argues second-prong plain error applies here because the consideration of multiple improper aggravating factors denied him a fair sentencing hearing. Specifically, defendant argues that while the trial court mentioned other aggravating factors, including his criminal history and the need to deter others, it emphasized the compensation and harm factors the most and failed to consider mitigating factors such as his mental-health conditions and progress toward rehabilitation.
¶ 56 As stated above, we must consider the sentencing hearing in its entirety. When we do so, we find defendant was not deprived of a fair sentencing hearing where the trial court considered multiple factors in aggravation and mitigation. We disagree with defendant that in imposing sentence the court relied heavily on the compensation and harm factors. While the court discussed the "serious harm" methamphetamine posed to the community and stated defendant received compensation for committing the offenses, the court considered numerous factors in aggravation at sentencing, including defendant's significant criminal history, the fact defendant committed a felony while on pretrial release, that defendant, while incarcerated, directed a juvenile to retrieve his drugs, and the need for deterrence. See People v. Scott, 2015 IL App (4th) 130222, ¶ 55, 25 N.E.3d 1257 (finding the trial court's consideration of several aggravating factors supported the conclusion remand was unnecessary).
¶ 57 Moreover, defendant fails to show he was deprived of a fair sentencing hearing where the court sentenced him to four-year sentences in each of the three cases, just above the minimum authorized by statute. A low-range sentence does not lead us to infer a reasonable probability exists defendant's sentence might have been less had the trial court refrained from mentioning the alleged improper factors. Accordingly, we find defendant fails to satisfy the second prong of plain error. See Piatkowski, 225 Ill.2d at 565.
¶ 58 In the alternative, defendant argues his postplea counsel was ineffective for failing to object to the trial court's improper reliance on factors inherent in the offenses and preserve the claim in his motion to reconsider sentence.
¶ 59 We review claims of ineffective assistance of counsel under the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). To succeed on a claim of ineffective assistance of counsel, defendant must show (1) the attorney's performance fell below an objective standard of reasonableness and (2) the deficient performance prejudiced the defendant. Id. at 687.
¶ 60 Both prongs of the Strickland'test must be satisfied; therefore, a finding of ineffective assistance of counsel is precluded if a defendant fails to satisfy one of the prongs. People v. Simpson, 2015 IL 116512, ¶ 35, 25 N.E.3d 601. "A court may resolve a claim of ineffective assistance of counsel by reaching only the prejudice prong, as a lack of prejudice renders irrelevant the issue of counsel's alleged deficient performance." People v. Hall, 194 Ill.2d 305, 337-38, 743 N.E.2d 521, 540 (2000). Prejudice results when there is a reasonable probability that, but for counsel's unprofessional error, the result of the proceedings would have been different. People v. Simms, 192 Ill.2d 348, 362, 736 N.E.2d 1092, 1106 (2000).
¶ 61 We find postplea counsel's failure to object to the court's consideration of compensation and harm as factors in aggravation and preserve the claim in defendant's motion to reconsider sentence did not prejudice defendant. As stated above, when considering all the evidence presented at defendant's sentencing, even without consideration of compensation and harm as factors in aggravation, the evidence was not closely balanced. Moreover, when considering the sentencing hearing in its entirety, defendant was not denied a fair sentencing hearing. Therefore, we find defendant's ineffective assistance of counsel claim fails.
¶ 62 B. Mandatory Supervised Release
¶ 63 Last, defendant argues he is entitled to a new sentencing hearing because he was denied his right to elect sentencing under a new sentencing scheme that reduced the term of MSR for Class 2 felonies from two years to one year. Specifically, defendant asserts under section 4 of the Statute on Statutes (5 ILCS 70/4 (West 2020)), he could have elected to be sentenced under the new MSR provision because his motion to reconsider sentence was pending at the time the new statute went into effect on July 1, 2021. The State argues defendant was not entitled to elect to be sentenced under the new MSR provision because he was sentenced on March 1, 2021, and the new sentencing scheme took effect on July 1, 2021. Moreover, the State argues section 4 of the Statute on Statutes does not apply because Public Act 101-0652 specifically stated the effective date of the new sentencing scheme was July 1, 2021.
¶ 64 Defendant admits he failed to preserve this issue in his motion to reconsider sentence because neither the trial court nor postplea counsel informed him of his right to be sentenced under the new law. However, defendant argues we may consider a forfeited claim where the defendant demonstrates a plain error occurred. Ill. S.Ct. R. 615(a) (eff. Jan. 1, 1967). As stated above, to prevail under the plain-error doctrine, defendant must first demonstrate a clear or obvious error occurred. See Piatkowski, 225 Ill.2d at 565.
¶ 65 "A defendant is 'entitled to be sentenced under either the law in effect at the time of the offense or the law in effect at the time of sentencing.'" People v. Calhoun, 377 Ill.App.3d 662, 664, 880 N.E.2d 633, 635 (2007) (quoting People v. Hollins, 51 Ill.2d 68, 71, 280 N.E.2d 710, 712 (1972)). "A defendant's due process rights are violated if he is not advised of his right to elect the statute under which he should be sentenced and he does not expressly waive that right." Id. " '[Where] any punishment is mitigated by the provisions of a new law, defendant can consent to the application of the new provision if it became effective prior to his sentencing.'" Id. (quoting People v. Land, 178 Ill.App.3d 251, 260, 533 N.E.2d 57, 63 (1988)). "Whether defendant was denied his right to elect involves the application of law to uncontested facts and is reviewed de novo." People v. Vlahon, 2012 IL App (4th) 110229, ¶ 16, 977 N.E.2d 327 (citing People v. Sims, 192 Ill.2d 592, 615, 736 N.E.2d 1048, 1060 (2000)).
¶ 66 Public Act 101-0652, § 10-281 (eff. July 1, 2021) amended, in relevant part, section 5-8-1(d)(2) of the Unified Code (730 ILCS 5/5-8-1 (d)(2) (West Supp. 2021)). Under the amendment, the MSR term for a Class 2 felony was reduced from 2 years to 12 months. Id.. Public Act 101-0652, § 99-999 provided the new sentencing scheme took effect on July 1, 2021. See Pub. Act 101-0652, § 99-999 (eff. July 1, 2021); 730 ILCS 5/5-8-1 (West Supp. 2021).
¶ 67 Here, on January 13, 2021, defendant pleaded guilty to one count of unlawful possession with intent to deliver a controlled substance (methamphetamine), a Class 2 felony, in McLean County case No. 20-CF-307 and two counts of unlawful delivery of a controlled substance (methamphetamine), a Class 2 felony, in McLean County case Nos. 20-CF-552 and 20-CF-630. Following a March 1, 2021, sentencing hearing, the trial court imposed four-year sentences in each case, with the sentences in McLean County case Nos. 20-CF-552 and 20-CF-630 to run concurrently to each other but consecutively to the sentence in McLean County case No. 20-CF-307, for an aggregate sentence of eight years' imprisonment. The court also ordered defendant's sentence be followed by a two-year MSR period. On March 22, 2021, defendant filed a motion to reconsider sentence and motion to withdraw guilty plea. On June 29, 2021, defendant filed an amended motion to reconsider sentence and an amended motion to withdraw guilty plea. Following a July 16, 2021, hearing, the trial court denied defendant's motions.
¶ 68 Defendant argues because his motion to reconsider sentence was pending at the time the new statute went into effect on July 1, 2021, he could have elected to be sentenced under the new MSR provision. Defendant contends section 4 of the Statute on Statutes provides a right to elect sentencing under a new favorable sentencing provision enacted before judgment is entered in a pending case. See 5 ILCS 70/4 (West 2020) ("If any penalty, forfeiture or punishment be mitigated by any provisions of a new law, such provision may, by the consent of the party affected, be applied to any judgment pronounced after the new law takes effect.").
¶ 69 Defendant asserts" [i]t is well established that the final judgment in a criminal case where the defendant is found guilty is not entered until the imposition of the sentence." See People v. Partee, 125 Ill.2d 24, 32, 530 N.E.2d 460, 463 (1988); People v. Lashmett, 126 Ill.App.3d 340, 345-46, 467 N.E.2d 356, 361 (1984). Further defendant provides, "the judgment in a criminal case is not final for purposes of appeal until the trial court has ruled on any timely post-sentencing motions." See Ill. S.Ct. R. 606(b) (eff. July 1, 2017); People v. Feldman, 409 Ill.App.3d 1124, 1127, 948 N.E.2d 1094, 1098 (2011) (Because a defendant must first file a motion to withdraw guilty plea before appealing, "it is the order denying that motion that is the final judgment."). Accordingly, defendant asserts judgment was not final and the proceedings were ongoing until July 16, 2021, when the trial court denied his amended motions, thus the new MSR provision applied to his case and he could have elected to be sentenced to 12 months of MSR.
¶ 70 The State disagrees and argues section 4 of the Statute on Statutes does not apply because (1) Public Act 101-0652 specifically stated the effective date of the new sentencing scheme was July 1, 2021, and (2) defendant was sentenced prior to that date. Further, the State argues defendant fails to point to anything in the text of section 4 of the Statute on Statutes that refers to whether a judgment is final for purpose of appeal. Ultimately, the State argues defendant did not have a right to elect to be sentenced under Public Act 101-0652 (eff. July 1, 2021) where the trial court imposed judgment on March 1, 2021, four months before the reduction in MSR. We agree with the State.
¶ 71 We first note section 4 of the Statute on Statutes does not apply here because Public Act 101-0652, § 99-999 (eff. July 1, 2021), which amended the MSR term for a Class 2 felony from 2 years to 12 months, expressly stated the relevant provisions of the Unified Code became effective on July 1, 2021. See Doe A. v. Diocese of Dallas, 234 Ill.2d 393, 406, 917 N.E.2d 475, 483 (2009) ("Because section 4 of the Statute on Statutes operates as a default standard, it is inapplicable to situations where the legislature has clearly indicated the temporal reach of a statutory amendment.").
¶ 72 Moreover, we find the trial court did not err when it sentenced defendant to a two-year term of MSR. As stated above, a defendant is entitled to be sentenced under the law in effect at the time of the offense or at the time of sentencing. See Calhoun, 377 Ill.App.3d at 664. On both the dates of defendant's offenses (April 10, May 19, and June 29, 2020) and sentence (March 1, 2021) in this case, section 5-8-1 of the Unified Code (730 ILCS 5/5-8-1(d) (2) (West 2020)) provided the MSR term for a Class 2 felony shall be two years. Further, where a punishment is mitigated by a new law, defendant can consent to the application of the new provision if the law becomes effective prior to his sentencing. See Calhoun, 377 Ill.App.3d at 664. Accordingly, defendant was not entitled to be sentenced under the 12-month MSR provision because the amended statute was not yet in effect when the trial court sentenced defendant on March 1, 2021. Thus, we reject defendant's argument that judgment was not final and the proceedings were ongoing until July 16, 2021. Consequently, defendant fails to demonstrate a clear or obvious error to support his contention of plain error.
¶ 73 In the alternative, defendant argues his postplea counsel was ineffective where counsel failed to request for him to be sentenced under the new, more favorable MSR term of 12 months instead of 2 years and counsel failed to preserve this claim in the amended motion to reconsider sentence. Defendant asserts there is a reasonable probability that, had counsel included this claim in the amended motion to reconsider sentence, the trial court would have reconsidered the sentence and imposed a one-year MSR term instead of a two-year term.
¶ 74 As stated above, to succeed on a claim of ineffective assistance of counsel, defendant must show (1) the attorney's performance fell below an objective standard of reasonableness and (2) the deficient performance prejudiced the defendant. Strickland, 466 U.S. at 687.
¶ 75 However, because defendant was not entitled to be sentenced under the 12-month MSR provision where the amended statute was not yet in effect when the trial court sentenced defendant on March 1, 2021, defendant suffered no prejudice when postplea counsel failed to request for him to be sentenced under the new MSR term or preserve the claim in the amended motion to reconsider sentence. Therefore, postplea counsel did not render ineffective assistance.
¶ 76 III. CONCLUSION
¶ 77 For the foregoing reasons, we affirm the trial court's judgment.
¶ 78 Affirmed.