Summary
In Hearring, the State argued in aggravation at sentencing that the defendant had nine felony convictions, but the defendant actually had only seven prior felony convictions.
Summary of this case from People v. WareOpinion
1-19-2064
03-25-2022
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. NICHOLAS HEARRING, Defendant-Appellant.
Appeal from the Circuit Court of Cook County No. 19 CR 02923 The Honorable Ursula Walowski, Judge, presiding.
JUSTICE SHARON ODEN JOHNSON delivered the judgment of the court, with opinion. Presiding Justice Pierce and Justice Harris concurred in the judgment and opinion.
OPINION
SHARON ODEN JOHNSON, JUSTICE
¶ 1 Defendant Nicholas Hearring was convicted of aggravated battery of a peace officer, after he spat at a corrections officer. The incident occurred while defendant was being detained pretrial for an attempted murder charge that the State subsequently dismissed.
¶ 2 After considering factors in mitigation and aggravation, including the attempted murder charge, the trial court sentenced defendant to 18 years with the Illinois Department of Corrections (IDOC). On appeal, defendant claims: (1) that an 18-year sentence for spitting is disproportionate to the offense and violates our state's proportionate penalties clause; and (2) that the trial court erred by considering two void prior convictions and by misstating the number of his prior convictions, thereby overstating his criminal history. Defendant asks this court to exercise its discretion under Illinois Supreme Court Rule 615(b)(4) to reduce his 18-year sentence to the statutory minimum of six years or to vacate his sentence and remand for resentencing before a different judge. See Ill. S.Ct. R. 615(b) ("On appeal the reviewing court may *** (4) reduce the punishment imposed by the trial court"). As a preliminary matter, both defendant and the State join in asking us to vacate his two void convictions.
¶ 3 For the reasons explained more fully below, we vacate defendant's two void convictions, and we vacate defendant's sentence and remand for resentencing.
¶ 4 BACKGROUND
¶ 5 I. Trial
¶ 6 Since defendant's claims on appeal solely concern his sentencing hearing, we will summarize the facts established at trial.
¶ 7 The evidence at defendant's 2019 bench trial established that, on February 7, 2019, correctional Officer Bryan Sanchez was escorting a handcuffed inmate to another area of the jail when they passed defendant who was also handcuffed and being escorted by a correctional officer. Officer Sanchez testified that "defendant sp[i]t in the direction of me and the inmate I was escorting" and that some of the spit landed on the inmate and some landed on Officer Sanchez's face. Defendant testified that he had no intention of spitting on Officer Sanchez and that he was spitting at the inmate who Officer Sanchez was escorting and who had previously spit at defendant. Video footage established that Officer Sanchez was standing behind the inmate who defendant testified was the intended target of the spitting. The video also showed that, after defendant spit, Officer Sanchez moved his head and subsequently wiped the side of his face. Officer Sanchez testified that, first, he "maintained control of the [in]mate [he] was in charge of and afterwards wiped off [his] face" with the sleeve of his shirt.
¶ 8 The trial court found that it did not matter who defendant intended to spit at, where "that spit clearly got on the officer." The trial court found defendant guilty of aggravated battery as charged and subsequently denied his posttrial motion for a new trial.
¶ 9 II. Sentencing
¶ 10 At defendant's sentencing hearing on September 19, 2019, defense counsel requested the correction of several facts in the presentence investigation report (PSI), including: (1) changing "the number of [defendant's] children" from 1 to 3; and (2) changing the boxes next to both "Alcohol Problem/Use" and "Drug Problem/Use" from "No" to "Yes." The PSI indicated that defendant left school in the ninth grade and that the 40-year old defendant had no then-current gang involvement. The PSI reported that defendant had been diagnosed with depression and anxiety and was under the care of psychiatrists at the Cook County Department of Corrections who were treating him with Prozac, Depakote and Zyprexa.
¶ 11 The PSI listed defendant's criminal history on two pages. Approximately a quarter of the first page contained empty boxes where a defendant's juvenile history could be entered. However, defendant's PSI stated: "No juvenile cases." The PSI then listed defendant's adult cases which were neither in chronological order nor grouped into misdemeanors and felonies. The PSI also did not state which cases were misdemeanors and which were felonies.
We mention the fact that defendant's criminal history occupied "two pages" because this is a fact that the trial court emphasized during its sentencing pronouncement and that the State similarly emphasized in its appellate brief.
We mention the PSI's description-or lack thereof-of defendant's felony convictions to make more comprehensible the resulting confusion at sentencing regarding exactly how many felony convictions defendant had.
¶ 12 In his appellate brief, defendant listed the cases noted in the PSI that were felonies; and the State does not dispute his characterization. According to defendant, the felony cases, in chronological order by arrest date, were as follows: (1) the receipt, possession or sale of a stolen vehicle in 1997; (2) the possession of a firearm, in 1999, which the parties now agree is void; (3) the manufacture or delivery of 1 to 15 grams of cocaine in 2001; (4) the aggravated unlawful use of a weapon (AUUW) in 2003, which the parties now agree is void; (5) the possession of ammunition in 2008; and (6) the receipt, possession, or sale of a stolen vehiclein 2012.
The PSI does not indicate what was, in fact, stolen. However, defendant's appellate brief states that this conviction was for a stolen motor vehicle, and the State does not challenge defendant's characterization.
Defendant's appellate brief concedes that defendant had an additional felony conviction that was not listed in the PSI. This seventh conviction was for possession with intent to deliver a controlled substance. Although not a factor at sentencing, we include it in our Analysis below.
¶ 13 At sentencing, the parties and the trial court agreed that the sentencing range was 6 to 30 years, and the prosecutor indicated that he had one witness. The prosecutor explained that there was a pending attempt murder charge and that he "intend[ed] to burn that case in aggravation."
¶ 14 The State called Detective Anthony Gillespie, who testified that he interviewed defendant's father, Daving Hearing, regarding a stabbing that occurred on April 20, 2017. Defendant's father told Detective Gillespie that he observed his son stab Dewon King during an argument over money, and the father later provided a videotaped statement. Detective Gillepsie also interviewed the victim, Dewon King, who, the detective later learned, had been diagnosed as a schizophrenic. King identified a photo of defendant as the person who had stabbed him. As the result of the one stab wound to his abdomen, King suffered a lacerated pancreas and liver. Detective Gillespie testified that defendant was arrested on April 24, 2017, and defendant's father was murdered on July 15, 2018.
¶ 15 The State also introduced a street surveillance video of the event, which showed King and defendant conversing or arguing prior to the stabbing. The video depicted King gesturing wildly during most of the three-minute conversation or argument, while defendant stood comparatively still. King waved his hands above and below his head at various times and made other gestures. Defendant attempted to walk away but King reapproached. At one point, when King was gesturing, defendant attacked King, and King fled. The stabbing itself cannot be seen on the video because it occurred between the two men, and the camera is angled at King's back.
¶ 16 In the State's closing argument at sentencing, the prosecutor argued that defendant's act of spitting was "a disgusting act" and that defendant had "a history of violence," including the stabbing of King and the two now void weapons charges. The prosecutor argued that the videos of both the stabbing and the spitting showed that both acts were unprovoked.
¶ 17 The prosecutor asserted: "He has nine prior felony convictions." The prosecutor began to list each one, but the trial court interrupted, stating: "I can see that, Mr. Abraham. You don't have to spell out all the convictions." The prosecutor then argued that defendant's criminal history was "extensive."
¶ 18 In defendant's closing argument, counsel argued that the stabbing video showed "some type of argument going back and forth" prior to the stabbing and that the spitting video demonstrated that the intended target was the other inmate and not the corrections officer. Counsel noted that both defendant and the stabbing victim had documented mental health issues. Emphasizing defendant's mental health and substance abuse issues, counsel asked for leniency and imposition of the minimum sentence.
¶ 19 After listening to arguments by both sides, the trial court sentenced defendant. Prior to pronouncing sentence, the trial court spoke to defendant, stating: "You've been in and out jail. You've got nine prior felony convictions." With respect to these convictions, the trial court noted: "your Presentence Investigation Report contains two pages of your background that I do have to consider, two of which are having a weapon, having a gun." The "two pages" mentioned by the trial court included the two now-void weapon charges. With regard to the stabbing, the trial court found: "whatever the argument may have been, maybe it could have been self-defense, I understand that, but once again, you stabbed someone. So[, ] there's significant aggravation there." The trial court sentenced defendant to 18 years with IDOC. After the trial court's pronouncement of sentence, the State moved to dismiss the attempted murder charge which the trial court granted. Defendant then filed a postsentencing motion seeking reconsideration of his sentence which the trial court denied. A timely notice of appeal was filed, and this appeal followed.
¶ 20 ANALYSIS
¶ 21 I. Vacating Two Void Convictions
¶ 22 As an initial matter, both parties join in asking this court to vacate defendant's 1999 conviction for possessing a gun in public and his 2004 conviction for AUUW.
Defendant was arrested in 2003 and convicted in 2004.
¶ 23 In light of the confusion that occurred at sentencing due to a lack of description in the PSI regarding felonies and misdemeanors, we describe the two void convictions in detail, to eliminate any further confusion.
¶ 24 With regard to the first void conviction, defendant was charged in a one-count information on November 16, 1999, with the unlawful use of a weapon (UUW) on November 1, 1999. Specifically, he was charged in case no. 99 CR 26222 with violating subsection 10 of section 24-1(a) of the Criminal Code of 1961 (Code). 720 ILCS 5/24-1(a)(10) (West 1998). Subsection 10 provided that a person committed the offense of UUW when he knowingly "[c]arrie[d] or possesse[d] on his person" a firearm "except when on his own land or in his own abode or fixed place of business." 720 ILCS 5/24-1(a)(10) (West 1998). The Code provided that the violation of subsection 10 was a Class 4 felony. However, the mittimus entered in case no. 99 CR 26222 on December 6, 1999, described the charge as "UUW (MISD)" and stated that defendant was sentenced to one year of probation with "1st 6 months Cook County Jail." Both the abbreviation "MISD" and the sentence indicate a misdemeanor. Nonetheless, defendant asserts on appeal that this is a felony conviction, and the State does not dispute this assertion, effectively conceding it. E.g. People v. Skillom, 2017 IL App (2d) 150681, ¶ ("the State forfeited any argument *** by failing to raise it").
The Code provides: "A person convicted of a violation of subsection *** 24-1(a)(10)) commits a Class 4 felony." 720 ILCS 5/24-1(b) (West 1998).
The mittimus indicates that defendant was convicted under "24-1-A." There are 11 subsections under section 24-1(a) and six of them are misdemeanors. 720 ILCS 5/24-1(a), (b) (West 1998). The copy of the mittimus in the appellate record is copied in such a way as to cut off the subsection.
The Code defines a felony as "an offense for which a sentence to death or to a term of imprisonment in a penitentiary for one year or more is provided" (720 ILCS 5/2-7 (West 1998)), which this sentence was not.
¶ 25 With regard to the second void conviction, defendant was charged on November 18, 2003, in a four count information in case no. 03 CR 25854 with two counts of AUUW and 2 counts of UUW by a felon. All four counts related to his possession of a firearm on November 7, 2003. The mittimus entered on August 16, 2004, stated that defendant was convicted of violating section 24-1.6(a)(1) of the Code (720 ILCS 5/24-1.6(a)(1) (West 2002) and sentenced to 5 years with IDOC. The mittimus stated that defendant was convicted of count 1, which charged him with committing AUUW by carrying a firearm about his person while not "on his or her own land or in his or her abode" (720 ILCS 5/24-1.6(a)(1) (West 2002)), and while the firearm was "uncased, loaded and immediately accessible" (720 ILCS 5/24-1.6(a)(3)(A) (West 2002).
¶ 26 In 2012, the United States Court of Appeals for the Seventh Circuit held that the statute under which defendant was charged in 1999 was unconstitutional. Moore v. Madigan, 702 F.3d 933, 942 (7th Cir. 2012) (the Seventh Circuit ordered "the entry of [a] declaration[] of unconstitutionality and [a] permanent injunction[]" against its enforcement). Similarly, in 2013, the Illinois Supreme Court held that the statute under which defendant was convicted in 2004 was unconstitutional. People v. Aguilar, 2013 IL 112116, ¶ 20; People v. Mosley, 2015 IL 115872, ¶ 25. Convictions for these crimes are void ab inito and a court has an affirmative duty to vacate them. In re N.G, 2018 IL 121939, ¶¶ 20, 42, 50 (courts "have an affirmative duty to invalidate [a void] AUUW conviction and to treat the statute on which it was based as having never existed"). Therefore, pursuant to the request of both parties and the authority given to us by our supreme court in In re N.G, we hereby vacate these two convictions. In re N.G., 2018 IL 121939, ¶ 57; People v. Cross, 2019 IL App (1st) 162108, ¶ 184 (vacating a void conviction pursuant to In re N.G).
The Seventh Circuit opinion specifically cited section 24-1(a)(1) of the Code, pursuant to which defendant was charged in 1999. See Moore, 702 F.3d at 934.
The supreme court quoted and discussed the same exact statutory sections under which defendant was charged. See Aguilar, 2013 IL 112116, ¶ 15.
¶ 27 II. Effect of Void Convictions
¶ 28 Defendant argues that this court should vacate his sentence due to the trial court's consideration of these two void convictions. The State agrees that these two convictions should not have factored into his sentencing. People v. Bridges, 2020 IL App (1st) 170129, ¶ 38 ("a void prior conviction is incompetent evidence at sentencing"). Both sides agree that, when the trial court relies on a void conviction when imposing sentence, the sentence may be affirmed only if "the record clearly establishes that defendant's [void] *** conviction did not affect the trial court's sentencing decision." Bridges, 2020 IL App (1st) 170129, ¶ 39; Smith, 2016 IL App (2d) 130997, ¶ 18 (resentencing required where "we cannot say that the weight that the [trial] judge placed on defendant's AUUW conviction was so insignificant that it did not affect the sentence"). See also People v. Heider, 231 Ill.2d 1, 21 (2001) (an improperly considered sentencing factor must be "so insignificant" that it is clear that "it did not lead to a greater sentence" in order to affirm). In short, the error must be harmless beyond a reasonable doubt. Smith, 2016 IL App (2d) 130997, ¶ 18 (where the reviewing court "reject[ed] the State's argument that any error was harmless," resentencing was required).
¶ 29 If, on appeal, the record fails to indicate to what extent the trial court considered the void conviction, then we must remand for resentencing. "Where the State presented a defendant's void prior AUUW conviction and asked the trial court to consider it in sentencing him and 'the record [did] not indicate to what extent the court considered the AUUW conviction, '" reversal was required. (Brackets in original.) Bridges, 2020 IL App (1st) 170129, ¶ 38 (quoting People v. Alexander, 2019 IL App (3d) 170168, ¶ 29). "[I]t is more prudent to remand for resentencing" than to guess at a conviction's impact. Bridges, 2020 IL App (1st) 170129, ¶ 38; People v. Cross, 2019 IL App (1st) 162108, ¶ 202 ("since the State did refer to the now vacated convictions at sentencing, we believe it is more prudent to remand for a resentencing").
¶ 30 "Although the imposition of a sentence is a matter within the trial court's discretion," this issue, by its very nature, is one that the trial court did not consider and, thus, we review it de novo or on a blank slate. See People v. Chaney, 379 Ill.App.3d 524, 527 (2008). Obviously, if the trial court had known that a conviction was void, the court would not have considered it. See also People v. Abdelhadi, 2012 IL App. (2d) 111053, ¶ 8 ("the question of whether a court relied on an improper factor in imposing a sentence ultimately presents a question of law to be reviewed de novo").
¶ 31 In the case at bar, it is impossible to separate the issue of defendant's void convictions from the issue of the misstated number of convictions, since the former inflated the latter. Recognizing this problem, the State's appellate brief contains one point heading with no subheadings.
¶ 32 The trial court referred to defendant's void gun charges, as well as to an incorrect number of convictions, over and above the two void convictions. Including the two now-void convictions, defendant's PSI listed six prior felony convictions. In his brief to this court, defendant concedes that he had an additional felony conviction that was not listed in the PSI, which was for possession with intent to deliver a controlled substance. The seven convictions, minus the two now-void convictions, mean that defendant now has a total of five valid prior felony convictions-not the nine convictions mentioned by the trial court.
¶ 33 At sentencing, despite the fact that defendant's PSI listed fewer felony convictions, the State mistakenly argued: "He has nine prior felony convictions." The prosecutor began to list each one, but the trial court cut him off, stating: "I can see that, Mr. Abraham. You don't have to spell out all the convictions." The prosecutor then argued that defendant's criminal history was "extensive." After listening to arguments by both sides, the trial court sentenced defendant in four short paragraphs. During these brief sentencing remarks, the trial court observed: "You've been in and out jail. You've got nine prior felony convictions." With respect to these convictions, the trial court noted: "your Presentence Investigation Report contains two pages of your background that I do have to consider, two of which are having a weapon, having a gun." As noted above, the "two pages" mentioned by the trial court included the two now-void weapon charges.
¶ 34 While we have no way to know for certain exactly how much the two void convictions and the resulting erroneous number of convictions affected the trial court's sentencing decision, we do know that the trial court repeated the State's reference to them and relied on the resulting "two pages" of history in sentencing defendant. Thus, we have no choice but to vacate defendant's sentence and remand for resentencing.
¶ 35 The State argues that this case is similar to People v. Bridges, 2020 IL App (1st) 170129, where the appellate court did not remand for resentencing despite the presence of one void AUUW conviction. However, Bridges is readily distinguishable from the case at bar. First, Bridges involved a mistake regarding only one prior conviction, rather than the four at issue here. Bridges, 2020 IL App (1st) 170129, ¶ 1. Second, the Bridges court observed that, "[i]n explaining the sentence, the [trial] court called attention to defendant's prior armed robbery conviction but did not mention his other prior convictions" once. Bridges, 2020 IL App (1st) 170129, ¶ 22. By contrast, in the case at bar, the trial court specifically mentioned the void convictions at sentencing and noted their contribution to defendants' "two pages" of criminal history. Third, in Bridges, the trial court emphasized the defendant's prior commission of the same offense before it, namely, armed robbery. By contrast, the trial court here focused on the extensiveness of defendant's felony history, which was misstated by almost half. Lastly, the Bridges court stated that it would "[o]rdinarily" need to remand, but this was the unusual case where resentencing was not necessary. Bridges, 2020 IL App (1st) 170129, ¶ 39. For these reasons, we find Bridges distinguishable.
¶ 36 The State argues that People v. Smith 2016 IL App (2d) 130997, is distinguishable. However, we find it closer to the case at bar than Bridges. In Smith, the appellate court vacated the defendant's sentence and remanded for resentencing based on the presence of one void AUUW conviction. Smith 2016 IL App (2d) 130997, ¶ 29. The Smith court explained: "Having only two felony weapons convictions to consider, instead of three, might well have lessened the sentence." Smith 2016 IL App (2d) 130997, ¶ 18. Similarly, in the case at bar, having five prior felony convictions to consider instead of nine might well have lessened the sentence. Smith 2016 IL App (2d) 130997, ¶ 18.
¶ 37 The State argues that defendant forfeited these claims by failing to raise them in the court below. "[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, 237 Ill.2d 539, 544 (2010); 730 ILCS 5/5-4.5-50(d) (West 2018) ("A defendant's challenge to the correctness of a sentence *** shall be made by a written motion filed with the circuit clerk within 30 days following the imposition of sentence."). In response, defendant asks this court to review the error either under the plain error doctrine or as ineffective assistance of counsel. The plain error doctrine permits a reviewing court to review forfeited errors under certain circumstances. Hillier, 237 Ill.2d at 545. First, the error must be "clear or obvious." Hillier, 237 Ill.2d at 545. "In the sentencing context, a defendant must then show either that (1) the evidence at the sentencing hearing was closely balanced, or (2) the error was so egregious as to deny the defendant a fair sentencing hearing." Hillier, 237 Ill.2d at 545.
¶ 38 Defendant argues that a trial court's consideration of void convictions at sentencing qualifies as second-prong plain error. The State does not rebut defendant's assertion that consideration of void convictions qualifies as second prong plain error, effectively conceding the point. The State argues, instead, that the trial court's sentencing decision was not based on them. However, as we already discussed above, the void convictions and the resulting augmented number of convictions did figure prominently in its sentencing pronouncement, thereby creating error that is clear and obvious.
¶ 39 In addition to plain error, defendant argues that his trial counsel was ineffective for failing to preserve this issue. Both the United States and Illinois Constitutions guarantee criminal defendants the right to the effective assistance of counsel. People v. Hale, 2013 IL 113140, ¶ 15 (citing U.S. Const., amends. VI, XIV, and Ill. Const. 1970, art. I, § 8). In general, the standard of review for determining whether an individual's sixth amendment right to effective assistance has been violated is de novo" People v. Stephens, 2017 IL App (1st) 151631, ¶ 48.
¶ 40 To determine whether defendant was denied effective assistance of counsel, we apply the two-prong test established in Strickland v. Washington, 466 U.S. 668 (1984) and adopted by the Illinois Supreme Court in People v. Albanese, 104 Ill.2d 504 (1984). Under the Strickland test, a defendant must show both (1) that his counsel's performance was objectively unreasonable under prevailing professional norms, and (2) that there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. E.g. Stephens, 2017 IL App (1st) 151631, ¶ 49. In the case at bar, defendant argues that, but for counsel's errors in allowing the trial court to accept both void convictions and an inaccurate number of convictions, there is a reasonable probability that the result of the sentencing proceeding would have been different.
¶ 41 First, we find that trial counsel's performance at the sentencing hearing was objectively unreasonable where counsel permitted, without objection, the trial court to accept the State's erroneous assertion that defendant had nine felony convictions, when he had almost half that number. With regard to defendant's 2004 AUUW conviction, the Illinois Supreme Court found that the statute was unconstitutional in 2013, years before defendant's 2019 sentencing hearing in this case. Aguilar, 2013 IL 112116, ¶ 20. In addition, a year before defendant's 2019 sentencing hearing, the supreme court found that such a conviction was void ab inito and could "be attacked at any time in any court," including the sentencing court that counsel was appearing before. See In re N.G., 2018 IL 121939, ¶ 57. Similarly, with respect to the 1999 conviction, whether it was a misdemeanor or a void felony conviction, it certainly was not a valid felony conviction. Ascertaining an accurate number of felony versus misdemeanor convictions is important in any sentencing but it becomes crucial when the PSI so clearly fails to do so, and the main thrust of the prosecutor's sentencing remarks is defendant's "history." Thus, we find that counsel's performance fell below an objective standard of reasonableness for the cumulative errors of failing to ascertain the accurate number of felony convictions prior to sentencing when the PSI did not, failing to move the sentencing court to vacate long-void convictions, and failing to object to the State's assertion of "nine felony convictions," which was so far off the mark. As we already discussed above, there is a reasonable probability that the result of the sentencing would have been different, in light of the State's repeated comments about defendant's "history" and the court's emphasis on defendant's alleged "nine felony convictions" and "two pages" of criminal history, which included void convictions and misdemeanors.
¶ 42 III. Proportionate Penalties Clause
¶ 43 Defendant further argues that his sentence was disproportionate. Ill. Const. 1970, art. I, § 11. Although we are remanding for resentencing due to the trial court's consideration of two void sentences and its mistaken apprehension that the number of convictions was almost twice what it should have been, we also remand based on the disproportionate nature of the sentence to the offense.
¶ 44 Like the eighth amendment, the proportionate penalties clause of the Illinois constitution embodies our evolving standard of decency. People v. Miller, 202 Ill.2d 328, 339 (2002) ("as our society evolves, so too do our concepts of elemental decency and fairness which shape the 'moral sense' of the community" underlying both the proportionate penalties clause and the eighth amendment). People v. Savage, 2020 IL App (1st) 173135, ¶ 64; People v. Minniefield, 2020 IL App (1st) 170541, ¶ 35. Specifically, the proportionate penalties clause provides that "[a]ll 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. This constitutional provision requires the balancing of the twin goals of retribution and rehabilitation, which requires a careful consideration of all the factors in aggravation and mitigation, including defendant's age and mental health. People v. Quintana, 332 Ill.App.3d 96, 109 (2002).
¶ 45 "The purpose of the proportionate penalties clause is to add a limitation on penalties beyond those provided by the eighth amendment and to add the objective of restoring the offender to useful citizenship." Minniefield, 2020 IL App (1st) 170541, ¶ 35. Thus, the proportionate penalties clause goes further than the eighth amendment in offering protection against oppressive penalties. Minniefield, 2020 IL App (1st) 170541, ¶ 35; Savage, 2020 IL App (1st) 173135, ¶ 65; see also People v. Clemons, 2012 IL 107821, ¶ 39; People v. Fernandez, 2014 IL App (1st) 120508, ¶ 63 ("the Illinois Constitution places greater restrictions on criminal sentencing than the eighth amendment's prohibition"). Under the broader protection provided by our state's own clause, defendant has made a persuasive claim.
¶ 46 The bottom line is that defendant received 18 years for spitting.
¶ 47 The State argues that the trial court was permitted to consider the dismissed charge and that this conduct justified, in large part, the 18-year sentence. While a trial court is certainly allowed to consider uncharged conduct, it is still not sentencing that conduct. To allow the trial court to impose the would be sentence of the dismissed charge onto a separate lesser charge would effectively eliminate all the guarantees that our constitution provides criminal defendants, such as trial by jury, innocent until proven guilty, and proof beyond a reasonable doubt. Such a practice would allow a prosecutor to proceed on the easiest charge and then ask the trial court to sentence the defendant for all the offenses that the State otherwise could not prove. We would be left with the proverbial tail wagging the dog-or an 18-year sentence for spitting.
¶ 48 Lastly, defendant asks us to exercise our discretion. First, he asks us to exercise our discretion under Rule 615(b) to reduce the punishment ourselves to the statutory minimum of 6 years. Ill. S.Ct. R. 615(b) ("On appeal the reviewing court may *** (4) reduce the punishment imposed by the trial court"). This, we decline to do without an updated PSI. Next, he asks us to exercise our discretion to remand to a different judge. The discretion to remand to a different judge is provided by Illinois Supreme Court Rule 366(a)(5). IL S.Ct. R. 366(a)(5) (eff. Feb. 1, 1994); People v. Hayes, 2021 IL App (1st) 190881, ¶ 52 ("We exercise our authority under Illinois Supreme Court Rule 366(a)(5) (eff. Feb. 1, 1994) to assign [defendant's] case to a different judge on remand."). Based on the facts and the circuit judge's superior familiarity with the case, we also decline to exercise the discretion to remand to a different judge.
¶ 49 CONCLUSION
¶ 50 For the foregoing reasons, we remand for a new sentencing hearing and we vacate defendant's two void convictions, as described in paragraphs 24 and 25 of this opinion. Supra ¶¶ 24-25.
¶ 51 Sentence vacated; remanded for resentencing.