Opinion
NO. 5-11-0452
05-10-2013
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES CHERRY, Defendant-Appellant.
NOTICE
Decision filed 05/10/13. The text of this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the disposition of the same.
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
St. Clair County.
No. 06-CF-870
Honorable
Jan V. Fiss,
Judge, presiding.
JUSTICE GOLDENHERSH delivered the judgment of the court.
Presiding Justice Spomer and Justice Chapman concurred in the judgment.
ORDER
¶ 1 Held: Defendant's posttraumatic stress disorder and ability to support himself without state aid did not render the court's imposition of a 50-year sentence excessive, where the defendant, who had a prior record of violence, murdered one and left another seriously wounded, demonstrating a lack of respect for the law and human life. ¶ 2 Defendant, James Cherry, appeals his 50-year sentence, arguing that it is excessive and an abuse of discretion. For the following reasons, we affirm the judgment of the circuit court. ¶ 3 On August 3, 2009, defendant was charged with armed violence, pursuant to section 33A-2(c) of the Criminal Code of 1961 (720 ILCS 5/33A-2(c) (West 2006)), first-degree murder, pursuant to section 9-1(a)(1) of the Criminal Code of 1961 (720 ILCS 5/9-1(a)(1) (West 2006)), aggravated battery with a firearm, pursuant to section 12-4.2(a)(1) of the Criminal Code of 1961 (720 ILCS 5/12-4.2(a)(1) (West 2006)), and aggravated unlawful use of a weapon by a felon, pursuant to section 24-1.6(a)(1)(3)(A) of the Criminal Code of 1961 (720 ILCS 5/24-1.6(a)(1)(3)(A) (West 2006)). The cause proceeded to a jury trial on all counts except the charge for aggravated unlawful use of a weapon by a felon. ¶ 4 At trial, Tanita Roddy, the daughter of decedent Michael Roddy, testified that on the morning of May 26, 2006, defendant came to her father's home, where she was staying along with Michael's girlfriend Carmen Bournett. She testified that he entered without permission and that he had a gun in his hand and pointed it at her father Michael. She further testified that upon entry, defendant said the following: "[O]h, so you want to call the police, huh? *** [A]ll you motherfuckers going to die here today." Tanita testified that the night before, defendant had threatened Michael over the phone and that in response, Michael had called the police. Tanita further testified that defendant then told them to "close the motherfucking door" and added again that: "You all fixing to die today. They going to find all three of you all dead today." At that point, according to Tanita's testimony, a struggle ensued as Michael reached for the gun and Carmen ran out the door. ¶ 5 Tanita further testified that she observed defendant shoot Michael in the arm. Tanita rushed to her father's side and threw an ashtray at defendant. Defendant then shot Tanita in her side. Tanita then went into another room and played dead. She then heard another gunshot. As a result of their injuries, Tanita spent almost a month in the hospital and underwent two surgeries, and Michael died. Defendant was found guilty and sentenced to 50 years' imprisonment. The court denied defendant's motion to reduce and/or modify the sentence.
¶ 6 ANALYSIS
¶ 7 The Illinois Constitution 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. 1, § 11. "The sentencing court is in the best position to consider matters relating to sentencing determinations and is vested with wide discretion in making a reasoned judgment on the penalty appropriate for the circumstances of each case." People v. Workman, 368 Ill. App. 3d 778, 788 (2006) (citing People v. Brown, 250 Ill. App. 3d 767, 774 (1993)). In sentencing a defendant, "[t]he trial court must base its sentencing determination on the particular circumstances of each case, considering such factors as the defendant's credibility, demeanor, general moral character, mentality, social environment, habits, and age." People v. Fern, 189 Ill. 2d 48, 53 (1999) (citing People v. Streit, 142 Ill. 2d 13, 19 (1991)). In reviewing a sentence, we will "proceed with great caution and must not substitute [our] judgment for that of the trial court merely because [we] would have weighed the factors differently." Id. at 53-54 (citing People v. Streit, 142 Ill. 2d 13, 19 (1991)). "A sentence within the statutory guidelines that is alleged to be excessive will not be disturbed on review unless it is manifestly disproportionate to the nature of the offense." Workman, 368 Ill. App. 3d at 788 (citing People v. Brown, 250 Ill. App. 3d 767, 774 (1993)); People v. Goyer, 265 Ill. App. 3d 160, 169 (1994); People v. Stacey, 193 Ill. 2d 203, 210 (2000) ("For example, a sentence within statutory limits will be deemed excessive and the result of an abuse of discretion by the trial court where the sentence is greatly at variance with the spirit and purpose of the law, or manifestly disproportionate to the nature of the offense." (Citing People v. Fern, 189 Ill. 2d 48, 54 (1999))). We "will not reverse the trial court absent an abuse of discretion in its decision." Goyer, 265 Ill. App. 3d at 169 (citing People v. Nussbaum, 251 Ill. App. 3d 779, 780-81 (1993)). ¶ 8 Defendant argues that his sentence was excessive in light of his potential for rehabilitation and his posttraumatic stress disorder (PTSD). The State argues that because the sentence reflects the gravity of defendant's crime, it should be affirmed. We agree with the State. ¶ 9 Defendant argues that the court did not properly consider the psychologist's testimony that his PTSD made him "quick to over react when placed in a situation where he feels he could get hurt." In support of his argument, defendant cites Goad v. State, 938 S.W.2d 363 (Tenn. 1996), in which the trial counsel was found ineffective for failing to present, in mitigation, evidence of a defendant's PTSD. However, as the State points out, while the court did not discuss the PTSD when sentencing defendant, the court was presented with evidence regarding the condition. Also, as the State points out, "[w]here mitigation evidence is before the court, it is presumed the court considered that evidence absent some contrary indication other than the sentence imposed." People v. Smith, 214 Ill. App. 3d 327, 339 (1991) (citing People v. Willis, 210 Ill. App. 3d 379 (1991); People v. Burke, 164 Ill. App. 3d 889 (1987); People v. Ulmer, 158 Ill. App. 3d 148 (1987)). Additionally, "[t]he existence of mitigating factors does not automatically oblige the trial court to reduce a sentence from the maximum sentence allowed." Id. (citing People v. Powell, 159 Ill. App. 3d 1005, 1011 (1987)). ¶ 10 Even if the PTSD were significant in this case, the testimony adduced at trial, although disputed by defendant, indicated that defendant went to the Roddy residence with bad intentions, i.e., carrying a gun and prepared to inflict mortal injury. Defendant repeatedly told those in the Roddy residence that they were going to die or that he was going to kill them, before actually following through, killing Michael and severely wounding Tanita. ¶ 11 While defendant testified that Michael invited him into the house on the day of the incident, he also admitted that upon the request of Tanita that he leave, he said, "I ought to smack the shit out of you." These are hardly the words of a man with significant rehabilitative potential, especially given the fact that defendant has several prior convictions, including convictions for aggravated battery and reckless discharge of a firearm resulting from an incident in which he pointed a gun at his ex-girlfriend's head, threatened to kill her, and later fired at her two times as she ran away. In fact, defendant was still on mandatory supervised release following a two-year sentence at the time this crime was committed. Defendant's own testimony reveals an individual with no respect for the law. ¶ 12 We also reject defendant's arguments that his normal-range IQ and history of self-employment without state aid demonstrates rehabilitative potential. We agree with the State that these factors do little in the way of demonstrating rehabilitative potential when compared to what the judge aptly described as "a mindless, cold and calculating act of evil."
¶ 13 CONCLUSION
¶ 14 The judgment of the circuit court is affirmed. ¶ 15 Affirmed.