Opinion
4-23-0453 4-23-0458 4-23-0459
05-28-2024
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARILYN E. PORTIS, Defendant-Appellant.
This Order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of McLean County Nos. 20CF93 20CF485 21CF14 Honorable William G. Workman, Judge Presiding.
JUSTICE DeARMOND delivered the judgment of the court. Presiding Justice Cavanagh and Justice Knecht concurred in the judgment.
ORDER
DeARMOND, JUSTICE
¶ 1 Held: The appellate court affirmed defendant's 10-year sentence for unlawful delivery of a controlled substance, concluding the trial court did not consider an improper factor in denying her motion to reconsider her sentence.
¶ 2 In February 2021, defendant, Marilyn E. Portis, pleaded guilty to three counts of unlawful delivery of a controlled substance. The trial court sentenced defendant to 180 days in jail, which was stayed pending completion of 48 months of drug court probation. In January 2023, the court revoked defendant's probation. In March 2023, the court sentenced defendant to 10 years' imprisonment, followed by one year of mandatory supervised release (MSR). Defendant filed a motion to reconsider, arguing her sentence was excessive, which the court denied.
¶ 3 Defendant appeals, arguing the trial court violated her right to a fair sentencing hearing by relying on an incorrect interpretation of the facts of her offenses. For the following reasons, we affirm.
¶ 4 I. BACKGROUND
¶ 5 In January 2020, the State charged defendant with one count of unlawful delivery of a controlled substance stemming from her actions in September 2019 (720 ILCS 570/401(d)(i) (West 2018)) (McLean County case No. 20-CF-93). In June 2020, the State charged defendant with three more counts of unlawful delivery of a controlled substance arising from her actions in February and March 2020 (McLean County case No. 20-CF-485). In January 2021, while defendant was being screened for drug court probation, the State charged her with four additional unlawful delivery of a controlled substance counts, two of which arose from an alleged delivery within 500 feet of a public park in December 2020 (720 ILCS 570/401(d)(i), 570/407(b)(2) (West 2020)) (McLean County case No. 21-CF-14).
¶ 6 In February 2021, defendant pleaded guilty to three counts of unlawful delivery of a controlled substance and was sentenced to 180 days in jail. Her jail sentence was stayed pending completion of 48 months of drug court probation.
¶ 7 In June 2022, the State filed two petitions to revoke defendant's probation. In the first, the State alleged defendant admitted to using drugs and failing to report to probation earlier that month. In the second, the State alleged defendant was arrested for battery and resisting a police officer earlier that month. In January 2023, defendant admitted the allegations in the State's first petition and the second petition was dismissed.
¶ 8 During defendant's March 2023 sentencing hearing, her counsel urged the trial court to consider her mental health and substance abuse issues and argued they would be "greatly exacerbated" by incarceration. Counsel also noted defendant had been a caretaker for her elderly mother. The State urged the court to sentence defendant to prison, explaining it "cannot agree to a community-based sentence." The State emphasized defendant's failures to report and positive tests for cocaine and alcohol after she "gave up on the program" and "g[a]ve up on the tools that she was being offered to live a law-abiding life."
¶ 9 The trial court stated it considered all the statutory and nonstatutory factors in aggravation and mitigation. The court continued:
"I did note in the Pre-Sentence Investigation [Report] that the defendant was referred to the Recovery [Drug] Court. She was previously in Drug Court. But I would note that in the Pre-Sentence Investigation [Report] on page 9 it says that she was referred, found eligible; but at this point she has not been accepted into the program. And I think that only comes from this Court at this point since there was no agreement." (Emphasis added.)
¶ 10 The trial court noted "the wheels kind of fell off' from January 2022 to June 2022, when defendant either failed to report for drug screens or tested positive for cocaine and alcohol. The court found "it would deprecate the seriousness of the offenses" and would be "inconsistent with the ends of justice" to place defendant back on a community-based sentence. The court sentenced defendant to two concurrent terms of five years' imprisonment in case Nos. 20-CF-93 and 20-CF-485 and a term of five years' imprisonment in case No. 21-CF-14, which was mandatorily consecutive to the two concurrent sentences. This combined period of 10 years' imprisonment was to be followed by 1 year of MSR.
¶ 11 In April 2023, defendant filed a motion to reconsider, challenging her sentence as excessive. Following the May 2023 hearing on the motion, the trial court found the following:
"Well, the Court, at the time of the sentencing hearing, did consider the presentence investigation [report] that was filed on these cases. Also the evidence that was presented, both in mitigation and aggravation, the statement of the defendant.
This defendant was given an opportunity for a community based sentence. And, even after there was a third violation with 21 CF 14, was, again, sentenced to a community based sentence to address the issues that have been-have been raised here today and were raised earlier. But, despite the opportunity that was given to this defendant, this defendant, while on drug court probation, as pointed out in 21 CF 14 not only continued-but continued to deliver controlled substances.
The Court does feel that the sentences that were imposed in these cases were appropriate, given the circumstances, and a community based sentence would, again, as stated before, deprecate the seriousness of these- this conduct of this defendant and, therefore, the Defendant's Motion to Reconsider Sentence is going to be denied."
¶ 12 This appeal followed.
¶ 13 II. ANALYSIS
¶ 14 On appeal, defendant argues the trial court violated her right to a fair sentencing hearing by relying on "an incorrect interpretation of the facts when imposing and affirming her sentence." Specifically, defendant contends the court "misapprehended the facts" by stating at the hearing on her motion to reconsider that case No. 21-CF-14 arose from her deliveries of a controlled substance while she was "on drug court probation." Defendant maintains she merely had been referred to that program and was in the screening process at the time she committed the new offenses. Defendant also argues her trial counsel's failure to bring the issue to the court's attention constituted ineffective assistance.
¶ 15 "[A] defendant has a right not to be sentenced based upon improper factors in aggravation, and a trial judge's reliance upon an improper factor in sentencing impinges upon a defendant's fundamental right to liberty." (Internal quotation marks omitted.) People v. Whitney, 297 Ill.App.3d 965, 969, 697 N.E.2d 815, 818 (1998). If the trial court mentioned an improper or incorrect factor in sentencing defendant, this court "must reverse and remand for the trial court to determine whether the improper factor affected the sentence defendant received unless we can conclude from the record that the weight placed on such an improperly considered aggravating factor was so insignificant it resulted in no increase in the defendant's sentence." (Internal quotation marks omitted.) People v. Ross, 303 Ill.App.3d 966, 984, 709 N.E.3d 621, 634-35 (1999). "Whether the [trial] court relied on an improper factor in imposing the defendant's sentence presents a question of law, which we review de novo." People v. Solis, 2019 IL App (4th) 170084, ¶ 26, 138 N.E.3d 247.
¶ 16 In determining whether the trial court based the sentence on proper aggravating and mitigating factors, a court of review should consider the record as a whole, rather than focusing on a few words or statements by the trial court. People v. Brown, 2023 IL App (4th) 220476, ¶ 43. The most glaring defect in defendant's argument is that the language of which she complains did not occur during her sentencing hearing, but rather a month later at the hearing on her motion to reconsider sentence. It could not have affected the court's sentencing decision, which had already been made. In fact, at the sentencing hearing, the trial court, in its remarks preceding the imposition of the sentence, said:
"I did note in the Pre-Sentence Investigation [Report] that the defendant was referred to the Recovery [Drug] Court. She was previously in Drug Court. But I would note that in the Pre-Sentence Investigation [Report] on page 9 it says that she was referred, found eligible; but at this point she has not been accepted into the program. And I think that only comes from this Court at this point since there was no agreement." (Emphasis added.)
¶ 17 Our review of the report of the proceedings for the hearing on the motion to reconsider clearly demonstrates the trial court's use of the phrase "while on drug court probation" was to emphasize what it stated in its preceding two sentences-that defendant was given the opportunity to participate in drug court, but she committed numerous additional drug-related offenses. Moreover, even though defendant was not technically participating in drug court probation at the time of those offenses, the phrase "while on drug court probation" necessarily implies she had at least been referred to that program and was awaiting approval at the time of her new offenses. This is something the court clearly knew when sentencing defendant because it said so. The court neither incorrectly assessed the facts nor relied on an improper factor in sentencing defendant.
¶ 18 Defendant argues the trial court's statement that she "even after there was a third violation with 21 CF 14, was, again, sentenced to a community-based sentence" was improper. Defendant interprets the court's use of the word "again" to mean she had been put on a community-based sentence twice by the time she was sentenced for the revocation of her probation. Our analysis should not be required to devolve into a parsing of individual words, taken out of context, to assess the overall intent of the trial court. However, a review of the report of proceedings in context reveals the court's use of the term "again" was to emphasize that "defendant was given an opportunity for a community-based sentence." The court did not assert defendant had been given a community-based sentence a second time before the revocation of her probation. As the court did not incorrectly assess the facts of defendant's offenses, it did not rely on an improper sentencing factor.
¶ 19 Finally, defendant maintains the trial court's statement that she "continued to deliver controlled substances" shows the court incorrectly found she delivered controlled substances while participating in drug court probation. However, aside from the phrase "while on drug court probation," the court mentioned defendant's continued delivery of controlled substances to connect her criminal history to the present case. Here, too, the court did not incorrectly assess the facts of defendant's offenses, and therefore it did not rely on an improper sentencing factor. More importantly, we reiterate the fact the statements of which defendant complains were not made at the time her sentence was imposed, and as a result, they could not have affected the court's imposition of the sentence.
¶ 20 Defendant argues, in the alternative, her trial counsel was ineffective for failing to challenge the trial court's sentencing remarks at the hearing on the motion to reconsider. A defendant's claim of ineffective assistance of counsel is analyzed under the two-pronged test set forth in Stricklandv. Washington, 466 U.S. 668 (1984). People v. Henderson, 2013 IL 114040, ¶ 11, 989 N.E.2d 192. To prevail on such a claim, "a defendant must show both that counsel's performance was deficient and that the deficient performance prejudiced the defendant." People v. Petrenko, 237 Ill.2d 490, 496, 931 N.E.2d 1198, 1203 (2010). However, "[i]t is axiomatic that a defense counsel will not be deemed ineffective for failing to make a futile objection." People v. Holmes, 397 Ill.App.3d 737, 745, 922 N.E.2d 1179, 1187 (2010). As we have determined the court did not rely on an improper factor at sentencing, defendant's trial counsel was not ineffective for failing to challenge the trial court's sentencing remarks at the hearing on the motion to reconsider.
¶ 21 III. CONCLUSION
¶ 22 For the reasons stated, we affirm the trial court's judgment.
¶ 23 Affirmed.