Opinion
No. 2-16-1017
09-29-2017
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FLOYD N. HOSKINS, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). Appeal from the Circuit Court of Du Page County. No. 13-CF-1578 Honorable Robert A. Miller, Judge, Presiding. JUSTICE SPENCE delivered the judgment of the court.
Presiding Justice Hudson and Justice Hutchinson concurred in the judgment.
ORDER
¶ 1 Held: The trial court erred in denying defendant's petition under section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2016)) seeking a reduced sentence, because at defendant's original sentencing hearing, the trial court expressly considered another conviction that was later reversed and remanded on appeal. Therefore, we reversed and remanded for a new sentencing hearing. ¶ 2 Defendant, Floyd Hoskins, appeals from the trial court's denial of his petition under section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2016)), in which he sought a reduction of the sentence imposed after a probation revocation hearing. On appeal, he argues that the trial court erred in denying the petition, because, at sentencing, the trial court (1) considered the facts of another conviction that was subsequently reversed, and (2) improperly commingled consideration of the initial and subsequent offenses. Defendant further argues that (3) the trial court improperly conducted a private investigation by listening to appellate oral arguments outside of the record, and that (4) his sentence is excessive. We agree with defendant's first argument and therefore reverse and remand for a new sentencing hearing.
¶ 3 I. BACKGROUND
¶ 4 On October 7, 2013, defendant pleaded guilty to aggravated domestic battery (720 ILCS 5/12-3.3(a-5) (West 2012)) against his girlfriend in case 13-CF-1578. The charge alleged that defendant had strangled her on August 4, 2013, in that he had applied pressure on her throat or neck with his hands. On November 4, 2013, defendant was sentenced to 180 days in the Du Page County jail and two years' probation. Defendant was to comply with certain conditions of probation, including not violating any criminal statutes and abstaining from alcohol. ¶ 5 On August 4, 2014, the State filed a petition to revoke defendant's probation. It filed an amended petition to revoke the following day, alleging that on July 23, 2014, defendant had committed another domestic battery and had consumed alcohol. ¶ 6 On October 9, 2014, defendant was found guilty of the second domestic battery, which was against his girlfriend's teenage son, in case 14-CF-1419. On April 27, 2015, the trial court held a joint hearing on the State's petition to revoke probation in case 13-CF-1578 and sentencing for case 14-CF-1419. An officer testified that on July 23, 2014, defendant had a strong odor of alcohol; his eyes were bloodshot and glassy; and he was agitated during their conversation. The State also introduced evidence that defendant was found guilty of domestic battery in case 14-CF-1419. The trial court found that the State had proven, by at least a preponderance of the evidence, the allegations in the petition to revoke probation, those being the commission of a new offense and the consumption of alcohol. ¶ 7 The trial court then proceeded to the sentencing portion of the hearing. The State submitted in aggravation the victim impact statement of the teenager's father, and defendant submitted letters as evidence in mitigation. Defendant also argued that, in the presentence report, his girlfriend stated that there were no injuries or emotional harm to her from the 2013 incident, and that she had subsequently submitted an affidavit stating that defendant never choked her. ¶ 8 The trial court mentioned the evidence in case 14-CF-1419 before stating that it found "that the evidence was significant, it was substantial, and the jury's verdict was completely appropriate." The trial court continued:
"The defendant stands before me guilty of that offense. It is an enhanced domestic battery. The other thing that I have to consider is the fact that the defendant was on probation for an aggravated domestic battery. *** But he is guilty of not only that, but of a violation of probation for that offense."The trial court discussed aggravating and mitigating factors. It stated that it sentenced defendant to probation in 2013 so that he could address his problems, including his alcohol problems, but defendant did not take advantage of the opportunity. The trial court stated:
"He stands before me less than one year later having committed another very serious allegation, and in my judgment, notwithstanding the defendant's protestation of his innocence, a similar type of horribly dangerous conduct by placing his hands on the throat of another person, someone who is smaller, weaker, and the like.
I can't find that the defendant is entitled to another opportunity at that. That was the whole point in October of 2013. And in my judgment, it was the conduct of the
defendant that gave up on that opportunity. He had that chance and he has exhausted it."The trial court sentenced defendant to three years' imprisonment in case 14-CF-1419 and four years' imprisonment for case 13-CF-1578, along with mandatory supervised release. The sentences were to be served concurrently. ¶ 9 On May 10, 2016, we reversed defendant's conviction in 14-CF-1419 and remanded for a new trial, determining that the trial court erred in refusing defendant's proposed jury instruction regarding parental discipline. People v. Hoskins, 2016 IL App (2d) 150552, ¶¶ 48-49. We stated that the "trial court usurped the jury's role to determine whether a parental figure's use of corporal punishment was reasonable parental discipline, thereby eliminating the requirement that the State prove beyond a reasonable doubt that defendant's actions were not legally justified." Id. ¶ 35. ¶ 10 Based on our ruling, on August 3, 2016, defendant filed a petition under section 2-1401 seeking a reduction in his sentence in case 13-CF-1578. He alleged that his four-year sentence following the hearing on the petition to revoke was imposed not solely based on a single instance of consumption of alcohol, but rather for the conviction in case 14-CF-1419. He alleged that he had served approximately one year in custody while awaiting a hearing on the petition to revoke, and that time "would constitute considerably more than a fair and equitable punishment for having consumed alcohol a single time while on probation." He asked that the trial court reduce his sentence in case 13-CF-1578. ¶ 11 On September 9, 2016, the State filed a motion to dismiss the section 2-1401 petition. It argued that a reduction in sentence was not relief available through a section 2-1401 petition, and that, even otherwise, defendant had not alleged facts which would have resulted in a different sentence. ¶ 12 On September 19, 2016, the trial court denied the motion to dismiss on the basis that there was a new matter of fact not previously appearing in the record. Specifically, a certified copy of defendant's conviction in case 14-CF-1419 had been introduced at the sentencing hearing for case 13-CF-1578, but the conviction was later overturned. The trial court then proceeded to hear argument on the merits of the 2-1401 petition, after which it denied the petition. ¶ 13 In the trial court's written order, it stated as follows. The basis for the probation revocation was twofold, being the certified copy of the domestic battery conviction in case 14-CF-1419, and the consumption of alcohol on July 23, 2014. Because defendant's conviction in 14-CF-1419 was later reversed, it was error for the certified copy of that conviction to serve as a basis to revoke defendant's probation. However, Judge Kleeman did not rely solely on that evidence, but also relied on defendant's consumption of alcohol to revoke probation. At the sentencing portion of the hearing, the certified copy of defendant's conviction in case 14-CF-1419 was presented in aggravation, but Judge Kleeman made clear that he was considering the actual testimony from the trial, over which he had presided. He further acknowledged that defendant continued to maintain his innocence. Judge Kleeman had properly considered defendant's behavior while on probation. Had defendant been found not guilty in case 14-CF-1419, or not even charged, the State would have had the option of presenting evidence regarding that matter as a factor in aggravation. Live testimony would have been required to preserve defendant's right to confront evidence. Judge Kleeman considered live testimony from the trial, and defendant was given a supplemental opportunity to present evidence or facts that he wanted Judge Kleeman to consider at sentencing. The trial court ruled that our reversal in case 14-CF-1419 did not cause the resentencing in case 13-CF-1578 to be invalid or predicated on faulty facts. ¶ 14 Defendant filed a motion to reconsider on October 13, 2016. He argued that the only evidence that the State offered, and the only evidence Judge Kleeman could consider, regarding case 14-CF-1419 was the certified copy of the conviction, but the conviction was subsequently revoked. As to the other basis of the violation, being alcohol consumption, defendant argued that he had already served one year, and additional time for that basis would not be fair, equitable, or in line with due process. Defendant asked that his sentence be reduced to the time he had already served. ¶ 15 The trial court denied the motion to reconsider on December 2, 2016. It stated that defendant made a good argument that live testimony should have been presented at the sentencing hearing, but it did not believe that defendant had met his burden in proving his petition. Defendant timely appealed.
The sentencing range for aggravated domestic battery was three to seven years' imprisonment. 730 ILCS 5/5-4.5-35 (West 2014).
A different trial judge ruled on defendant's section 2-1401 petition. --------
¶ 16 II. ANALYSIS
¶ 17 On appeal, defendant challenges the trial court's denial of his section 2-1401 petition. Section 2-1401 allows for relief from final orders and judgments more than 30 days but less than two years after their entry. 735 ILCS 5/2-1401 (West 2016). Under section 2-1401, a party may challenge a final judgment by bringing to the trial court's attention issues of fact outside the record which, if known when the judgment was entered, would have affected the judgment. In re Marriage of Morreale, 351 Ill. App. 3d 238, 241 (2004). A section 2-1401 petition may alternatively bring a legal challenge to a final judgment or order. Warren County Soil & Water Conservation District v. Walters, 2015 IL 117783, ¶ 31. In general, to obtain relief under section 2-1401, a party must set forth specific factual allegations showing (1) the existence of a meritorious defense or claim; (2) due diligence in presenting the defense or claim in the original action; and (3) due diligence in filing the section 2-1401 petition. Id. ¶ 37. The allegations of a section 2-1401 petition must be proved by a preponderance of the evidence. Id. Where the petition presents a fact-dependent challenge to the final judgment or order, we apply an abuse-of-discretion standard. Id. ¶ 51. However, where the petition presents solely a legal claim, we review the ruling on the petition de novo. Id. ¶ 47. ¶ 18 The State argues in its brief, as it did in its motion to dismiss in the trial court, that a section 2-1401 petition cannot be used to challenge a sentence. The State cites People v. Pinkonsly, 207 Ill. 2d 555, 565 (2003), where our supreme court stated that "to obtain relief under section 2-1401, the defendant must show both a meritorious defense to the charges against him and due diligence in presenting it." The supreme court further stated that a section 2-1401 petition seeks relief from a final judgment. Id. at 566. The State notes that in the criminal context, a judgment includes both the adjudication of guilt and the sentence. 730 ILCS 5/5-1-12 (West 2016). The State maintains that because defendant never challenged the underlying conviction in case 13-CF-1578, he implicitly conceded that his section 2-1401 petition is without merit. ¶ 19 The State's argument is not persuasive, as the issue of whether a defendant can challenge only his sentence in a section 2-1401 petition was not before the Pinkonsly court. In fact, our supreme court has stated that "an action brought under section 2-1401 is a civil proceeding and, according to this court's longstanding precedent, is subject to the usual rules of civil practice, even when it is used to challenge a criminal conviction or sentence." (Emphasis added.) People v. Vincent, 226 Ill. 2d 1, 6 (2007). ¶ 20 The State also argues that defendant has forfeited his request on appeal for a new sentencing hearing, because he never made such a request in the trial court. However, we agree with defendant that his request for a modified sentence should be construed as also or alternatively requesting a new sentencing hearing. ¶ 21 Defendant argues that he is entitled to a new sentencing hearing because the trial court considered a conviction which was later reversed. This is a legal question that we review de novo. See Warren County Soil & Water Conservation District, 2015 IL 117783, ¶ 47. Defendant cites People v. Coty, 105 Ill. App. 3d 398 (1982). There, at the defendant's trial for aggravated battery, the State was allowed to submit in rebuttal certified statements of the defendant's two prior convictions. The convictions were also considered by the trial court during sentencing. Id. at 399. One of the convictions was subsequently reversed on appeal, and the indictment was dismissed. Id. at 399-400. The appellate court stated, "A defendant is entitled to a new sentencing hearing where, as here, a trial court, in imposing sentence, considered a conviction which was subsequently reversed, even where the sentence imposed may have been otherwise warranted." Id. at 400. Other cases have reached the same result, including many cases where the conviction considered in aggravation was later reversed and remanded, as in the instant case. See People v. Bolar, 229 Ill. App. 3d 563, 568 (1992); People v. Burnside, 212 Ill. App. 3d 605, 608 (1991) (other conviction was reversed and remanded); People v. Martin-Trigona, 111 Ill. App. 3d 718, 728 (1982) (other conviction was reversed and remanded); People v. Reynolds, 105 Ill. App. 3d 698, 705 (1982) (other convictions were reversed and remanded); People v. Henderson, 95 Ill. App. 3d 291, 297 (1981) (other conviction was reversed and remanded); People v. Beyah, 72 Ill. App. 3d 690, 697 (1979); People v. Buckley, 44 Ill. App. 3d 1038, 1039 (1977) (other conviction was reversed and remanded); People v. Chellew, 20 Ill. App. 3d 963, 964 (1974) (other conviction was reversed and remanded). ¶ 22 Defendant also cites People v. Lopez, 147 Ill. App. 3d 127 (1986). In that case, the defendant was given a single sentence for multiple convictions, one of which was vacated on appeal. Id. at 128. The appellate court stated that a new sentencing hearing was required where the record did not clearly indicate whether or not the trial court considered the vacated conviction in determining the length of the defendant's sentence. Id. at 128. ¶ 23 Defendant argues that the mere fact that his conviction in 14-CF-1419 was reversed requires a new sentencing hearing, especially because the only evidence presented at the probation revocation hearing regarding the incident was the certified copy of conviction. Defendant maintains that the sole basis of the probation violation would then have been the single instance of consuming alcohol, and it is doubtful that the trial court would have imposed such a harsh sentence based on that violation. Defendant also argues that the trial court considered his behavior in case 14-CF-1419 under the wrong legal standard, in that we stated that during the trial in that case, it improperly determined that defendant's actions were unreasonable discipline as a matter of law. See Hoskins, 2016 IL App (2d) 150552, ¶ 35. ¶ 24 The State argues that Coty is no longer good law following People v. Jackson, 149 Ill. 2d 540 (1992). At issue there was whether due process requires resentencing after a defendant is acquitted on charges that the trial court considered when sentencing him for another conviction. Id. at 547. The supreme court stated that evidentiary rules during sentencing are less rigid than those applicable at trial, and although evidence of past criminal conduct is often inadmissible at trial, it is relevant information at sentencing. Id. at 547-48. A trial court may consider previous convictions, outstanding indictments, criminal conduct that was not prosecuted, and even conduct for which the defendant was acquitted, as the burden of proof is lower than that at trial. Id. at 548-50. ¶ 25 In response to the defendant's argument that there is a difference between considering evidence of criminal conduct after an acquittal as opposed to before, the supreme court stated that the difference did not amount to a denial of due process, as the trial court was aware at the time that the allegations had not yet resulted in a conviction. The supreme court also stated that the acquittal was not equivalent to conclusive evidence that the defendant did not commit the alleged conduct. Id. at 550-51. Based on its decision, the supreme court overruled People v. Dean, 156 Ill. App. 3d 344 (1987), and People v. McGee, 211 Ill. App. 3d 641 (1991). In those cases, the appellate court had found that a new sentencing hearing was warranted where the trial court expressly relied on evidence of a pending charge, of which the defendant was subsequently acquitted. See Dean, 156 Ill. App. 3d at 355; McGee, 211 Ill. App. 3d at 651. ¶ 26 The supreme court additionally distinguished United States v. Tucker, 404 U.S. 443 (1972), where the United States Supreme Court held that the defendant was entitled to a new sentencing hearing because the trial court had considered three prior felony convictions, two of which were later set aside as unconstitutional. Jackson, 149 Ill. 2d at 551. Our supreme court stated that unlike Tucker, the trial court in the case before it did not consider any previous convictions, but rather the testimony of an alleged victim who was subject to cross-examination. Id. at 551-52. ¶ 27 We conclude that defendant is entitled to a new sentencing hearing under Coty and related cases. See supra ¶ 21. That is, in sentencing defendant in case 13-CF-1578, the trial court explicitly considered his conviction in case 14-CF-1419, which we later reversed and remanded for a new trial. In arriving at our conclusion, we find Jackson readily distinguishable. In Jackson, the trial court considered charges against the defendant which had not yet been adjudicated, and our supreme court specifically stated that the trial court was aware at the time of sentencing that the allegations had not yet resulted in a conviction. Jackson, 149 Ill. 2d at 551. Here, in contrast, the trial court repeatedly emphasized that defendant had been found guilty in case 14-CF-1419. Moreover, the Jackson court overruled Dean and McGee, in which new sentencing hearings were ordered after the defendants were later acquitted of pending charges that had been considered at sentencing, but the Jackson court did not overrule Coty or the numerous other cases holding that a new sentencing hearing is required if the trial court considered a conviction that was later reversed. Indeed, the Jackson court distinguished Tucker on the basis that Tucker involved previous convictions that were later set aside. Id. at 551-52. ¶ 28 We recognize that the trial court could properly consider the charges involved in case 14-CF-1419, even if defendant had not yet been tried, because the burden of proof at a sentencing hearing is lower than that at trial. See id. at 548-50. However, in such a scenario, the trial court would have known that they were unadjudicated allegations and afforded them the appropriate weight, whereas in this situation the trial court may have weighed the incident more strongly because defendant had been found guilty. As stated, the record shows that the trial court repeatedly emphasized the finding of guilt in case 14-CF-1419. This may have been because the sentencing hearings were combined in cases 13-CF-1578 and 14-CF-1419, but we cannot know for sure, especially because the trial court discussed both incidents together. ¶ 29 In sum, because it appears that defendant's conviction in case 14-CF-1419 may have influenced the trial court's sentence in case 13-CF-1578, and because defendant's conviction in case 14-CF-1419 was later reversed and remanded, defendant is entitled to a new sentencing hearing in case 13-CF-1578. This is true "even where the sentence imposed may have been otherwise warranted." Coty, 105 Ill. App. 3d at 400. Therefore, the trial court erred in denying defendant's section 2-1401 petition, which broadly sought such relief. We express no opinion on an appropriate sentence, though we note that contrary to defendant's arguments in the trial court and appeal, the sentence in case 13-CF-1578 is for the underlying aggravated battery charge, and not for the single instance of consuming alcohol that forms the basis of the probation revocation. See People v. Morrison, 298 Ill. App. 3d 241, 244-45 (1998) (after revoking a sentence of probation, the trial court may resentence the defendant to any sentence appropriate for the original offense, and the "minor nature of the conduct which was the basis for the probation revocation did not require the court to treat the defendant with lenity"). ¶ 30 Based on our resolution of the issue, we do not address the merits of defendant's remaining arguments on appeal.
¶ 31 III. CONCLUSION
¶ 32 For the reasons stated, we reverse the judgment of the Du Page County circuit court and remand the cause for a new sentencing hearing. ¶ 33 Reversed and remanded.