Opinion
4-22-0491
05-11-2023
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JULIE REICHEL, 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 Livingston County No. 21CF241 Honorable Jennifer H. Bauknecht, Judge Presiding.
JUSTICE DOHERTY delivered the judgment of the court. Justices Steigmann and Zenoff concurred in the judgment.
ORDER
DOHERTY, JUSTICE
¶ 1 Held: (1) The circuit court did not abuse its discretion in sentencing defendant; (2) defense counsel was not ineffective; and (3) defendant's conviction for financial exploitation of the elderly violates the one-act, one-crime rule and is vacated.
¶ 2 Defendant Julie Reichel pleaded guilty to charges of theft and financial exploitation of an elderly person and was sentenced to 15 years' imprisonment. She filed a motion to reconsider her sentence, which the circuit court denied. In this direct appeal, defendant argues that (1) the court abused its discretion in sentencing her to the maximum prison sentence allowed by statute despite several factors in mitigation; (2) in the alternative, defense counsel was ineffective for failing to preserve various arguments in the motion to reconsider sentence; and (3) her conviction for financial exploitation of the elderly violates the one-act, one-crime rule and must be vacated. We affirm defendant's sentence and modify the mittimus.
¶ 3 I. BACKGROUND
¶ 4 In August 2021, the State charged defendant with theft in excess of $500,000 but not exceeding $1 million (720 ILCS 5/16-1 (a)(1)(A) (West 2020)) (count I) and financial exploitation of an elderly person in an amount exceeding $50,000 where the victim is over 70 years of age (id. § 17-56(a)(1)) (count II), both Class 1 felonies.
¶ 5 The charges resulted from defendant, in her capacity as an insurance agent, misappropriating the funds of James Barickman, an individual over the age of 70, through deception over an eight-year period. Defendant entered into an open guilty plea for both offenses. Both the State and the circuit court acknowledged during the plea hearing that the two offenses would merge upon the entry of conviction. The court accepted defendant's plea and ordered a presentence investigation report (PSI).
¶ 6 A. The PSI
¶ 7 The PSI provided the following details. In describing the offense, defendant stated that she would have her clients write checks to her or the insurance company, and she would then deposit those checks into her personal accounts. She took full responsibility for her actions and felt "ashamed," explaining that she harbored a cocaine addiction for the last 13 years that took over her life and "played a huge role" in the offense.
¶ 8 Defendant's criminal history involved three prior crimes of dishonesty. First, in LaSalle County case No. 97-CM-934 for deceptive practices (720 ILCS 5/17-1(B) (West 1996)), defendant pleaded guilty to the misdemeanor offense and received a fine and three months of court supervision. Second, in Livingston County case No. 04-CF-256 for three counts of forgery (id. § 17-3(a)(2) (West 2004), defendant pleaded guilty to the Class 3 felonies and received a sentence of 20 days of periodic imprisonment and 2 years' probation; she was also required to pay fines and fees in addition to $8089 in restitution. Third, in Marshall County case No. 04-CM-218 for deceptive practices (id. § 17-1(B) (West 2004)), defendant pleaded guilty to the misdemeanor offense and received a fine and six months' court supervision; she was also ordered to pay fines and fees in addition to $1800 in restitution.
¶ 9 B. Sentencing Hearing
¶ 10 The circuit court held a sentencing hearing in March 2022. The State called Sergeant Daniel Rossiter of the Illinois State Police to testify to his investigation, the substance of which was also described in the PSI.
¶ 11 Rossiter had experience investigating financial crimes as well as a narcotics officer with the drug task force, where he learned the "telltale signs" of controlled substance use. Rossiter interviewed Barickman and his son Joel. Barickman expressed his concerns that he had been defrauded after receiving documentation from the corporate holder of his investment accounts that varied significantly from the statements that were provided to him by defendant. Defendant provided documentation showing Barickman had five investment accounts with a value of $1,420,457. The corporate documentation showed only four accounts with a value of $530,507. The fifth account was later determined to be fraudulent. All five accounts were opened through defendant.
¶ 12 Rossiter executed a search warrant for defendant's bank records and identified three personal checking accounts; one was defendant's own account, one was a joint account with her daughter, and another was a joint account with her then-husband. Suspicious transactions were identified within all three accounts. Rossiter identified numerous checks meant to be deposited into investment accounts that were instead deposited into defendant's personal accounts and then withdrawn as cash.
¶ 13 Barickman's banking records were also reviewed, evidencing checks meant for deposit into his investment account in the amount of $939,900. The corporate investment entity confirmed receiving only $80,900 of that amount, with the remaining $852,000 documented as deposited into defendant's various personal checking accounts. In total, 37 checks meant to be deposited into investment accounts were instead deposited into defendant's checking accounts.
¶ 14 Defendant was arrested pursuant to a warrant. Rossiter questioned her about her j ob and the deposit procedure for client funds. Defendant explained that clients would write a check to the corporate entity or directly transfer funds, but that checks were not deposited into a business account and then transferred to the corporation. Defendant stated that she knew "where this is coming from" and claimed that she had an affair with Barickman for 15 years and that he would write checks made out to the investment company to "take care of her." The checks were made out to the investment company, defendant claimed, so that Barickman's wife would not become suspicious. Defendant created the fraudulent account documentation so Barickman could provide it to his wife.
¶ 15 Confronted with the question of whether any other checks made out to the corporate investment entity from individuals other than Barickman were deposited into her checking accounts, defendant stated, "No." Rossiter explained his investigation uncovered numerous instances of that exact occurrence during the preceding eight years. Defendant was unable to offer an explanation and denied having multiple affairs.
¶ 16 Following a break in the interview, defendant confessed to the offenses, claiming neither her husband nor her daughter was aware of her actions. She was unable to quantify the number of victims or the total amount of money she had taken, as Barickman was the only individual for whom she tracked the amount misappropriated. The investigation into defendant revealed there were at least seven victims, including Barickman, deceived by similar methods. The victims would give defendant money to deposit into investment accounts, and she would place the money into one of her personal checking accounts; in another instance, she created documents for a fraudulent investment account. One victim was defrauded from 2015 through 2020 in the amount of $320,000. Defendant began defrauding a different victim from 2016 through 2018 after the victim's husband died. Yet another couple was victimized when they gave defendant what amounted to their life savings to invest.
¶ 17 Defendant was informed of the various seizure warrants issued against her property and voiced concern that her daughter's vehicle was at risk of seizure; she felt that the seizure of various additional items victimized her husband and daughter. Rossiter responded, "Yes, you victimized your husband and your daughter by [your] bad decisions." Defendant then asked whether any protections were available to her daughter and husband. Rossiter explained that due to the nature of the crimes, defendant's daughter and husband were financially exposed to repercussions.
¶ 18 In searching defendant's home, car, and place of business, Rossiter did not find any evidence of cocaine use by defendant but admitted it would be difficult to track whether she used cash to purchase cocaine.
¶ 19 The State also introduced into evidence the Illinois Department of Insurance
(Department) disciplinary report for January 2015. The report shows that defendant entered into a stipulation and consent order in January 2015 with the Department. The report explains:
"[Defendant] was licensed between 2003 through 2007 and currently effective 2014 to sell life and health insurance. The Order includes allegations of [defendant's] failure to pay unearned commissions, charge backs, non-remitted premiums to the insurer; failure to remit collected premiums to the insurer and failed to reimburse the insurer for the refunded premium to the consumer. It is also alleged [defendant] submitted a fraudulent application and check to the insurer."
¶ 20 Barickman's son Joel read a prepared victim impact statement during the sentencing hearing. He explained his parents deprived themselves of things in the hope that they could grow the family farm. The money taken by defendant was meant to purchase farm machinery and help ensure that the family farm could expand while being passed to future generations.
¶ 21 Three letters were submitted on behalf of defendant. Defendant's daughter wrote a letter detailing her mother's kindness and their relationship. Following her mother's arrest, authorities seized the joint bank account she shared with her mother, as well as her vehicle. The remaining letters were authored by defendant's friends and called attention to the spousal abuse defendant endured during her marriage, opining that defendant would focus on rehabilitation. All three letters were admitted into evidence.
¶ 22 Defendant made a statement in allocution. In taking full responsibility for her actions, she acknowledged that an apology could not undo the pain or loss she caused. She stated that although "it [was] no excuse at all," she "fell into drugs to mask years of pain and torture," and she would seek drug treatment while imprisoned. Further, she would take classes in an effort to reenter society as a better person and pay as much restitution as possible. She noted that she was 58 years old and that both her mother and grandfather died around that age from heart attacks. She asked the circuit court not to give her the equivalent of a "death sentence" as "[m]y daughter still needs me, and I pray I will have a little time still with her."
¶ 23 The State requested the circuit court sentence defendant to the maximum 15 years, while defense counsel requested a sentence of no more than 10 years, citing mitigating factors as well as defendant's cocaine addiction.
¶ 24 In discussing the seriousness of the offense, the circuit court found that the monetary amount stolen in this instance was "clearly on the high end" of the statutory range. The court explained further:
"We're talking about a pattern of conduct that occurred over the course of years. Multiple victims were involved. Steps were taken by you to hide that by creating false statements, false banking statements; and quite honestly, you took advantage of the kindness and the goodness in the heart of people within your community."
¶ 25 The circuit court also found that deterrence was a strong factor given defendant's position of trust in a small community; her appearance as a "law abiding citizen," who presented herself as "looking out for the best interest of others," but instead was "an evil, greedy person"; and that she took advantage of multiple victims. The court also found that defendant's prior criminal record was an aggravating factor in that there were prior crimes of dishonesty. The court also referenced the 2015 stipulation and consent decree entered into with the Department.
¶ 26 In discussing mitigating factors, the circuit court acknowledged defendant did not cause physical harm, but defendant "went about as close as you can to physically harming someone" by "go[ing] right at everything they have." Nonetheless, the court found the absence of physical harm a mitigating factor. Turning to rehabilitative potential, the court opined:
"I, however, disagree that you have a character and attitude indicating you are unlikely to commit another crime. *** I have really little doubt in my mind that the day you get out of prison you will go back to this type of behavior, and that's unfortunate. And the reason I say that is because you had already done this. You had already done it as far back as 1997 at a time when you were a lot younger. And this is behavior that apparently is just part of you.
Again, we're not dealing with one single isolated incident. This is not one poor decision on your part. You are nothing like you appear to be at all. *** And I usually tend to believe as you said in your [PSI] that sometimes good people make bad decisions. *** I don't think you are a good person. I don't think you are a good mother. What mother would do this to their child?
* * *
I just don't find your, your statements to be sincere. You know you are facing a sentence; and you are trying anything you can to get out of that.
And on that, you apparently contrived a cocaine addiction that you blame; *** and the State Police find zero evidence of that. Zero. None. Absolutely no evidence of cocaine use by you."
¶ 27 The circuit court sentenced defendant to concurrent terms of 15 years' imprisonment on both counts and ordered restitution in the amount of $852,000.
¶ 28 C. Motion to Reconsider
¶ 29 Defendant filed a motion to reconsider her sentence, arguing that the circuit court imposed an unduly harsh, punitive, and excessive sentence in light of all the evidence submitted and the sentencing factors, including those in mitigation. Defense counsel reiterated those arguments during the hearing.
¶ 30 The circuit court ruled on the motion to reconsider from the bench, stating:
"I did lay out the factors in aggravation in this case. I understand there was some argument about the mitigating factors in this case. I do not think the mitigating factors given the aggravating factors carry much weight. I believe I was very clear when you talk about the seriousness of these offenses and the range within that seriousness as well as the other aggravating factors, I believe that the sentence of 15 years is, first of all, it's in the range as prescribed by statute. As I believe I indicated at the day of the sentencing hearing, I think that that's not much of a sentence given the harm that was done to the victims in this case; and that was expressed in the victim impact statement. *** But the factors in aggravation in this case are very strong. The mitigating evidence is not that strong, and I believe the sentence is appropriate."
The court then denied the motion to reconsider.
¶ 31 This appeal followed.
¶ 32 II. ANALYSIS
¶ 33 On appeal, defendant contends that the circuit court erred in sentencing her to 15 years' imprisonment because it failed to consider factors in mitigation and her potential for rehabilitation. In the alternative, defendant asserts that if we find that any of the grounds that she now advances on appeal are deemed to be forfeited, defense counsel was ineffective for failing to preserve the arguments and we should review her claims under plain error. Furthermore, defendant asserts her conviction for financial exploitation of the elderly must be vacated pursuant to the one-act, one-crime rule. Initially, we find that the contentions advanced in defendant's opening brief challenging her sentence have not been forfeited as they were adequately preserved by counsel's motion to reconsider sentence and oral arguments during the hearing. Consequently, we dispense outright with defendant's alternative argument that counsel's performance was deficient and engage in the merits of the remaining arguments presented.
¶ 34 A. Excessive Sentence Claim
¶ 35 The circuit court possesses broad discretionary powers in imposing a sentence.
People v. Alexander, 239 Ill.2d 205, 212 (2010). A reviewing court reviews the sentence imposed with great deference. Id. at 212-13. A defendant's sentence "must be based upon the particular circumstances of the case, including (1) the defendant's history, character, and rehabilitative potential; (2) the seriousness of the offense; (3) the need to protect society; and (4) the need for punishment and deterrence." People v. Sturgeon, 2019 IL App (4th) 170035, ¶ 102. The seriousness of the offense is the ultimate sentencing factor, and when considering rehabilitation or mitigating factors, the sentencing court is not required to place greater weight on those factors than on the severity of the offense. People v. Aquisto, 2022 IL App (4th) 200081, ¶ 112 (citing People v. Charles, 2018 IL App (1st) 153625, ¶ 47). Further, the presence of mitigating factors does not preclude the imposition of the maximum sentence allowed by law. People v. Flores, 404 Ill.App.3d 155, 158 (2010) (citing People v. Pippen, 324 Ill.App.3d 649, 652 (2001)). "When mitigating factors are presented to the [circuit] court, there is a presumption it considered them." Pippen, 324 Ill.App.3d at 652. The court is not required to recite each factor nor quantify the weight assigned thereto. People v. Wilson, 2016 IL App (1st) 141063, ¶ 11.
¶ 36 A sentence imposed that is within statutory limits as provided by the legislature carries with it a presumption of validity and will only be reversed when a court abused its discretion. People v. Musgrave, 2019 IL App (4th) 170106, ¶ 56. A sentence within statutory limits will not constitute an abuse of discretion unless it is greatly at variance with the spirit and purpose of the law or manifestly disproportionate to the nature of the offense. People v. Fern, 189 Ill.2d 48, 54 (1999). Defendant bears the burden of establishing the court failed to consider relevant sentencing factors. Wilson, 2016 IL App (1st) 141063, ¶ 11.
¶ 37 Defendant specifically claims the circuit court (1) failed to afford weight to mitigating evidence, (2) improperly relied on deterrence as the "strongest factor" warranting imposition of the maximum sentence, (3) had an incomplete understanding of her criminal history, and (4) erred by making pointed statements detailing its beliefs that defendant was an "evil" person and "not a good mother."
¶ 38 As we have already explained above, the sentencing court possesses broad discretionary powers, and the presence of mitigating factors and the imposition of the maximum sentence allowed by law are not mutually exclusive. Flores, 404 Ill.App.3d at 158. The court explicitly considered mitigating factors but decided they were not entitled to more weight than the seriousness of the offense or deterrence. Such a decision does not constitute error. Id. at 157. Defendant also argues the circuit court was required to consider the fact that she pled guilty, agreed to restitution, and showed remorse as a factor in mitigation. However, it is presumed the court considered all relevant mitigating factors presented absent an affirmative showing to the contrary. Id. at 158. This court has recognized that admitting guilt can be a factor in mitigation. Pippen, 324 Ill.App.3d at 653. "However, again, the existence of mitigating factors does not obligate the [circuit] court to reduce a sentence from the maximum allowed." Id. Further, the circuit court clearly considered defendant's remorse as a mitigating factor and explicitly stated that it did not find defendant to be sincere in her statements of remorse as defendant was facing the imposition of mandatory imprisonment and was attempting to avoid that fate. The court specifically noted that defendant blamed a cocaine addiction for her actions when there was no evidence to support that claim.
¶ 39 Further, defendant argues, "the court erred by believing that it did not need to consider her rehabilitative potential." To the contrary, the circuit court plainly referenced defendant's rehabilitative potential and found that given the previous offenses, the numerous incidents of theft, defendant's age, and the length of time over which she perpetrated the offenses, the potential for rehabilitation was low. Defendant relies on People v. Bigham, 226 Ill.App.3d 1041, 1049 (1992), to support her argument that the potential for rehabilitation must be "considered by the sentencing court and an objective of the defendant's sentence." Again, the court here considered the potential for rehabilitation. Further, even the Bigham court acknowledged, "the court is not required to give rehabilitative potential more weight than the seriousness of an offense." Id.
¶ 40 We also do not fault the circuit court for relying on deterrence as an important factor in sentencing defendant. Logically, not only may a sentencing court rely on deterrence as a factor in imposing a sentence (People v. Cameron, 189 Ill.App.3d 998, 1009-10 (1989)), but it is required to consider it (730 ILCS 5/5-5-3.2(a)(7) (West 2020)). Defendant cites People v. Colter, 181 Ill.App.3d 392 (1989), and People v. Thomas, 76 Ill.App.3d 969 (1979), for the proposition that deterrence cannot justify a lengthy prison sentence. We reject the assertion that these cases control the outcome in this instance, as both relied on the unique facts surrounding the defendants' offenses and imposed probation instead of imprisonment following review. Probation is not a sentence available in this matter. After reviewing the totality of the circumstances, the court's consideration of deterrence was reasonable and did not constitute an abuse of discretion.
¶ 41 Defendant's argument that the circuit court had an incomplete understanding of her criminal history is also unavailing. Although defendant argues the circuit court could have taken judicial notice of relevant records relating to her previous criminal offenses, she fails to cite authority establishing error when a court fails to do so. The additional argument that the court relied on speculation when addressing the prior crimes finds no support in the record. The salient point the court relied on during sentencing was that defendant repeatedly perpetrated financial crimes by engaging in dishonesty. Our review of the record does not reveal a finding that the sentencing court engaged in speculation when evaluating defendant's criminal record.
¶ 42 Defendant points to the comments of the circuit court that she was "evil" and "not a good mother" to further support her argument that the court focused on retribution while overlooking significant mitigation. Nevertheless, it is well established a court's statements during sentencing are not read in isolation, but rather, in light of the entire record on appeal. People v. Donlow, 2020 IL App (4th) 170374, ¶ 84 (citing People v. Ward, 113 Ill.2d 516, 527-28 (1986)). Here, when reviewed in context, the court was merely commenting on the seriousness of the offense and evidence of uncharged offenses that defendant undertook over a period of years, as well as defendant's choice to use a joint checking account held with her daughter to assist in the commission of these offenses. Regarding her acts as a mother, defendant's actions exposed her daughter to financial liability for the offense and resulted in the seizure of the daughter's bank account and vehicle. In light of the totality of the record, the court's comments do not support defendant's argument.
¶ 43 B. One-Act, One-Crime
¶ 44 Defendant also argues the State did not apportion her conduct between the two offenses in the charging instruments and the State's factual basis demonstrates the two convictions were based on the same conduct. As a result, defendant argues this case should be remanded with directions that the circuit court vacate the conviction for financial exploitation of the elderly as a violation of the one-act, one-crime principle.
¶ 45 "The one-act, one-crime rule prohibits convictions for multiple offenses that are based on precisely the same physical act." People v. Smith, 2019 IL 123901, ¶ 13. Multiple convictions are improper when based on the same physical act. Id. ¶ 15. "[W]hen more than one offense arises from a series of incidental or closely related acts and the offenses are not, by definition, lesser included offenses, convictions with concurrent sentences can be entered." People v. Miller, 284 Ill.App.3d 16, 26 (1996) (citing People v. King, 66 Ill.2d 551, 566 (1977)). However, "[f]or the State to properly obtain multiple convictions for connected acts that might be treated as a series of offenses, the State must apportion the acts to the offenses in the charging instrument and at trial." People v. Williams, 384 Ill.App.3d 327, 340 (2008). An alleged violation of the one-act, one-crime rule is a matter reviewed de novo. Id. Even if a claim of a violation of the rule was forfeited by the defendant, as it was here, such a violation is reversible error under the second prong of the plain-error doctrine. Smith, 2019 IL 123901, ¶ 14.
¶ 46 The State concedes error on this issue, noting it did not charge defendant with committing multiple acts or apportion thefts between the two charged offenses, and agrees defendant's conviction for financial exploitation of an elderly person must be vacated. This issue was considered in the circuit court during the plea hearing, where the court and the State both acknowledged that upon conviction, the financial exploitation of the elderly charge would merge with the theft charge. After reviewing the charging instrument in this case, we agree with defendant that the charging instrument fails to apportion the acts between the offenses and accept the State's concession.
¶ 47 Accordingly, we affirm the 15-year sentence imposed by the circuit court for theft in excess of $500,000 but not exceeding $1 million and vacate defendant's conviction for financial exploitation of the elderly. See People v. Pryor, 372 Ill.App.3d 422, 438 (2007) (citing Ill. S.Ct. R. 615(b) (eff Aug. 27, 1999)) (stating a reviewing court has the authority to correct a sentencing judgment at any time without remanding the matter to the circuit court). We direct the clerk to correct the mittimus to reflect our decision.
¶ 48 III. CONCLUSION
¶ 49 For the reasons stated, we vacate defendant's conviction under count II and otherwise affirm the circuit court's judgment.
¶ 50 Affirmed in part.