Opinion
4-22-1096
07-12-2023
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN GOSNELL, 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. 21CF163 Honorable Jennifer H. Bauknecht, Judge Presiding.
JUSTICE ZENOFF delivered the judgment of the court. Presiding Justice DeArmond and Justice Harris concurred in the judgment.
ORDER
ZENOFF JUSTICE
¶ 1 Held: The appellate court granted the motion of the Office of the State Appellate Defender to withdraw as defendant's appellate counsel and affirmed defendant's penitentiary sentence, which was imposed after his term of probation was revoked.
¶ 2 After defendant, John Gosnell, pleaded guilty to (1) aggravated driving under the influence of alcohol (625 ILCS 5/11-501(a)(2), (d)(2)(B) (West 2020)) (DUI) (count I) and (2) driving while his driver's license was revoked (625 ILCS 5/6-303(a), (d-2) (West 2020)) (count III), he was sentenced to 24 months' probation and 180 days in jail. Thereafter, upon a finding that defendant violated the terms of his probation, the trial court revoked defendant's probation and sentenced him to five years' imprisonment on count I and a concurrent term of three years' imprisonment on count III. The court denied defendant's motion to reconsider the sentence, and defendant appeals. On appeal, defendant's appointed counsel, the Office of the State Appellate Defender (OSAD), moves to withdraw. OSAD asserts that defendant can raise no issue of arguable merit (1) challenging the underlying judgment arising from his guilty plea, (2) contending that the court erred in finding that defendant violated the terms of his probation, or (3) asserting that the court abused its discretion in sentencing defendant on counts I and III. For the following reasons, we grant OSAD's motion and affirm the court's judgment.
¶ 3 I. BACKGROUND
¶ 4 On June 30, 2021, the State charged defendant with the aforementioned offenses, as well as an additional count of aggravated DUI (625 ILCS 5/11-501(a)(1), (d)(2)(B) (West 2020)) (count II). The charges stemmed from defendant operating a motor vehicle on a public highway on July 29, 2021, while intoxicated and while his driver's license was revoked.
¶ 5 On September 21, 2021, defendant appeared in court to plead guilty pursuant to a plea agreement. Per the agreement, defendant would plead guilty to counts I and III, and the State would (1) dismiss count II and (2) recommend that defendant be sentenced to 24 months' probation and 180 days in jail. The trial court explained to defendant that, by pleading guilty, he would be giving up his right to a trial, which included his rights to plead not guilty, to require the State to prove the charges against him beyond a reasonable doubt, to present evidence, and to confront the State's witnesses. The court also informed defendant of the minimum and maximum sentences he faced on both counts. Defendant confirmed that he had no questions about the court's admonishments. Additionally, defendant represented that no one forced him to enter into the plea agreement or promised him anything other than what was in the agreement.
¶ 6 As a factual basis for the plea, the State explained the following. On June 29, 2021, defendant operated an all-terrain vehicle on a public highway in Reynolds, Illinois. At that time, defendant's driver's license was revoked. A breath test administered after defendant's arrest established that his alcohol concentration was 0.169. The State noted that defendant had been convicted of DUI twice before.
¶ 7 Thereafter, defendant indicated he wished to plead guilty to counts I and III. The trial court accepted the pleas, finding them to be knowingly and voluntarily made. The court sentenced defendant to 24 months' probation and 180 days in jail. As part of the conditions of probation, defendant was prohibited from using or possessing any alcoholic beverage. The court informed defendant that he had the right to appeal but must first file a motion asking to vacate the judgment and for leave to withdraw his guilty plea. The court also admonished defendant that, if such a motion was allowed, a trial date would be set, and a transcript would be provided to defendant at no cost if he was indigent. The court told defendant that, if the motion was denied, he could still file a notice of appeal within 30 days of the denial of the motion. Defendant filed no postplea motion, and defendant did not appeal.
¶ 8 On June 10, 2022, the State filed a petition to revoke defendant's probation but ultimately withdrew that petition because the State did not secure the necessary witnesses for a hearing.
¶ 9 On June 14, 2022, the State filed another petition to revoke probation, alleging that defendant violated the conditions of his probation by consuming alcohol. At the hearing on the petition to revoke, the State called Officer Josh Bray of the Pontiac Police Department as a witness. Bray testified to the following. On June 13, 2022, Bray was dispatched to a residence on West North Street in Pontiac to respond to a call involving a possibly suicidal person. When Bray arrived, he encountered defendant sitting on the front steps of the residence. Bray observed a Bud Ice "tall boy" and a Budweiser can next to defendant. Both cans were open. The Budweiser can was empty, and the Bud Ice can had about an inch of beer left in it. According to Bray, defendant appeared to be intoxicated. Defendant was slurring his words and swaying back and forth. Defendant told Bray that he had been drinking. Bray asked defendant if he was aware that his bond conditions prohibited him from consuming alcohol, and defendant responded that he was aware but was "having a rough time and needed to talk to somebody." The State introduced photographs of the cans, which were admitted into evidence.
¶ 10 Defendant presented no evidence, and the trial court found that defendant violated the terms of his probation by consuming alcohol on June 13, 2022.
¶ 11 On September 20, 2022, the matter proceeded to sentencing. A presentence investigation report (PSI) was prepared. The PSI showed that defendant had a criminal history dating back to 2005 that included convictions for, inter alia, DUI, driving while license suspended, being an escaped felon, aggravated battery, and burglary. Defendant reported that the amount of alcohol he drank depended upon whether he was properly medicated. According to defendant, if he was properly medicated, he would not drink. However, if he was not medicated, he would drink 10 to 12 beers. The PSI showed that a substance abuse evaluation was completed in February 2022, and defendant was ordered to complete 75 hours of substance abuse treatment. The PSI indicated that defendant did not complete that treatment. According to the PSI, defendant referred himself for inpatient substance abuse treatment in February 2022 but did not report any follow-up outpatient treatment. The PSI also indicated that defendant failed to appear at seven scheduled appointments with his probation officers.
¶ 12 The State called Pontiac Police Corporal Jeffrey Franklin as a witness, who testified to the following. On June 10, 2022, Franklin and other officers responded to a call at a motel in Pontiac involving an issue with a resident in one of the rooms. Franklin went to the room and observed defendant outside. According to Franklin, defendant was extremely intoxicated, slurring his words, and staggering. Franklin testified that defendant "got pretty mad" while officers spoke with him, yelled, "I don't give a f*** who you are," and took up a fighting stance. Franklin explained that he and the other officers arrested defendant.
¶ 13 The State recommended a sentence of five years' imprisonment. Defendant's counsel requested a term of probation or, alternatively, that defendant be recommended for alcohol abuse treatment in prison. Defendant gave a statement in allocution. According to defendant, he received his first DUI while he was "going through a really bad time mentally." Defendant explained that, at that time, he had gone through a divorce and started "drinking a lot" because "they stopped me from being able to see my son and daughter." Defendant asserted that he was convicted of being an escaped felon because he was ordered to spend his weekends in jail pursuant to another conviction, but the "ride" he relied upon to drive him to jail "didn't show up." Defendant also explained that he failed to attend his probation meetings because, inter alia, his probation officer was "rude" and refused to accommodate his work schedule.
¶ 14 The trial court revoked defendant's probation. Thereafter, the court noted that it had "considered all of the appropriate factors" in determining defendant's sentence. The court explained that defendant's statement in allocution evidenced defendant's failure to accept responsibility for his actions. The court did "not see any mitigating factors." The court opined that defendant was "fighting anybody that is in the way of [his] consuming alcohol" and that defendant was a threat to the public. The court stated that defendant's character and attitude of blaming others indicated that he was unlikely to comply with probation and that he was likely to commit another crime. The court considered defendant's criminal record to be a "strong factor in aggravation" and determined that deterrence was "probably the strongest factor in aggravation." The court sentenced defendant to five years' imprisonment on count I and a concurrent term of three years' imprisonment on count III.
¶ 15 On September 23, 2022, defendant filed a motion to reconsider his sentence. The motion alleged that the trial court failed to consider multiple factors in mitigation. Such factors included, inter alia, that (1) defendant's conduct neither caused nor threatened serious physical harm to another, (2) defendant's conduct was excused or justified because defendant was under the influence of alcohol and was not taking his prescribed mental health medications after having a bad reaction to them, (3) defendant's conduct was the result of circumstances unlikely to recur because defendant "went back into rehabilitation and sought help for the reaction he had" to his medications, and (4) the character and attitudes of defendant indicated that he was unlikely to commit another crime.
¶ 16 At the hearing on the motion to reconsider the sentence, the trial court explained that it did "not agree that the factors in mitigation as set forth in the motion to reconsider are all present." The court further noted that "the aggravating factors do greatly outweigh the mitigating factors." Thus, the court determined that the sentence it previously imposed, which was "well within the range as prescribed by statute," was appropriate. Therefore, the court denied the motion to reconsider defendant's sentence.
¶ 17 On December 19, 2022, OS AD was appointed as defendant's appellate counsel, and defendant appealed.
¶ 18 II. ANALYSIS
¶ 19 OSAD moves to withdraw as counsel. In its motion, OSAD states that it has read the record on appeal and has found no issue of arguable merit. OSAD states that it has advised defendant of its opinion. OSAD's motion is supported with a memorandum of law providing a statement of facts, potential issues, and arguments why those issues lack arguable merit.
¶ 20 OSAD first asserts that defendant cannot attack the underlying judgment arising out of his guilty plea in this appeal. We agree. When a defendant takes no direct appeal from an order of probation and the time for an appeal has expired, we are precluded from reviewing the propriety of the order of probation unless the underlying judgment of conviction is void. People v. Johnson, 327 Ill.App.3d 252, 256 (2002). A judgment is void where it was (1) entered by a court that lacked personal or subject-matter jurisdiction or (2) based on a statute that is facially unconstitutional and void ab initio. People v. Price, 2016 IL 118613, ¶ 31. Nothing in the record suggests that either circumstance applies. Accordingly, there is no arguable claim that the underlying judgment is void.
¶ 21 Additionally, defendant filed no motions seeking to withdraw his guilty plea or to reconsider his sentence of probation. Further, defendant filed no notice of appeal from his conviction and sentence of probation, and the time for such an appeal has expired as required by Illinois Supreme Court Rule 604(d) (eff. July 1, 2017). OSAD acknowledges that a defendant's failure to file a postplea motion can be excused when the trial court fails to provide proper admonishments prescribed by Illinois Supreme Court Rule 605(b) (eff. Oct. 1, 2001). See People v. Winston, 316 Ill.App.3d 618, 620 (2000) (remanding to the trial court where the defendant was not given proper Rule 605(b) admonishments so that the defendant could be given proper admonishments and determine whether she would withdraw her guilty plea). However, the record establishes that the court substantially complied with Rule 605(c). The court informed defendant of his right to appeal, that he needed to file a motion to vacate the judgment and for leave to withdraw his guilty plea if he intended to appeal, that a transcript would be provided to him at no cost if he was indigent, and that he had 30 days in which to file an appeal in the event the motion was denied. Accordingly, we agree that defendant can raise no issue of arguable merit in this appeal relating to the underlying judgment. See People v. Curry, 2019 IL App (3d) 160783, ¶ 15 (holding the appellate court had no jurisdiction to vacate the defendant's guilty plea on appeal from the trial court's order revoking his probation where defendant failed to appeal the original judgment entered pursuant to his guilty plea and nothing suggested that the judgment was void).
¶ 22 OSAD next contends that defendant can raise no claim of arguable merit that the State failed to prove that defendant violated the terms of his probation. Proof of a violation of a condition of probation need only be shown by a preponderance of the evidence. People v. Woznick, 278 Ill.App.3d 826, 828 (1996). A proposition is proved by a preponderance of the evidence if it has been found to be more probably true than not. People v. Drake, 131 Ill.App.3d 466, 472 (1985). The trial court's findings regarding a violation of probation will not be disturbed unless they are against the manifest weight of the evidence. Woznick, 278 Ill.App.3d at 828. "A finding is against the manifest weight of the evidence if the opposite conclusion is clearly evident or if the finding itself is unreasonable, arbitrary, or not based on the evidence presented." People v. Chatman, 2022 IL App (4th) 210716, ¶ 47.
¶ 23 Here, the record shows that, as a condition of his probation, defendant was prohibited from using or possessing alcohol. Despite this, the uncontested evidence at defendant's probation revocation hearing established that defendant failed to comply with that condition. Officer Bray testified that, while responding to a call on June 13, 2022, he encountered defendant sitting on the front steps outside of a residence. Bray explained that there was an empty Budweiser can and a near-empty Bud Ice can next to defendant. Photographs of the cans were entered into evidence. According to Bray, defendant appeared intoxicated. Defendant was swaying back and forth and slurring his words. Bray testified that defendant admitted he had been drinking even though he knew he was prohibited from doing so under his bond conditions. Given this uncontested evidence, we agree with OSAD that no meritorious argument can be made that the trial court's revocation of defendant's probation was against the manifest weight of the evidence.
¶ 24 Finally, OSAD asserts that defendant can raise no claim of arguable merit that the trial court abused its discretion in sentencing defendant or in denying his motion to reconsider his sentence. When a defendant is admitted to probation and that probation is later revoked, the court may sentence the defendant to any sentence that would have been appropriate for the original offense. People v. Hibbler, 2019 IL App (4th) 160897, ¶ 97. The court has broad discretion in imposing a sentence. People v. Klein, 2022 IL App (4th) 200599, ¶ 34. The 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. Klein, 2022 IL App (4th) 200599, ¶ 34.
¶ 25 The Unified Code of Corrections (730 ILCS 5/1-1-1 et seq. (West 2020)) provides mitigating and aggravating factors that the trial court must consider when determining an appropriate sentence. Klein, 2022 IL App (4th) 200599, ¶ 35. Aggravating factors include a defendant's history of delinquency or criminal activity and the need to deter others from committing the same offense. Klein, 2022 IL App (4th) 200599, ¶ 35. The weight to be given to a proper factor is left to the sound discretion of the trial court, as it is in the best position to consider the defendant's credibility, demeanor, moral character, mentality, social environment, habits, and age. Klein, 2022 IL App (4th) 200599, ¶¶ 37-38. Accordingly, we will not reverse the court's sentence unless it constitutes an abuse of discretion. Klein, 2022 IL App (4th) 200599, ¶ 37. The court's sentence constitutes an abuse of discretion only if it is greatly at odds with the spirit and purpose of the law or manifestly disproportionate to the nature of the offense. Klein, 2022 IL App (4th) 200599, ¶ 38. The denial of a motion to reconsider a sentence is also reviewed for an abuse of discretion. People v. Ferral-Mujica, 2017 IL App (2d) 160240, ¶ 22. A reviewing court may not substitute its judgment for that of the trial court simply because the reviewing court would have weighed factors differently. Klein, 2022 IL App (4th) 200599, ¶ 37. We presume that a sentence imposed within the statutory range provided by the legislature is proper. Klein, 2022 IL App (4th) 200599, ¶ 37.
¶ 26 Here, defendant pleaded guilty to one count of aggravated DUI, a Class 2 felony, and one count of driving while his driver's license was revoked, a Class 4 felony. The sentencing range for a Class 2 felony is three to seven years of imprisonment. 730 ILCS 5/5-4.5-35(a) (West 2020). The sentencing range for a Class 4 felony is one to three years of imprisonment. 730 ILCS 5/5-4.5-45(a) (West 2020).
¶ 27 Defendant's PSI showed that he had a criminal history dating back to 2005 that included convictions for DUI, driving while license suspended, being an escaped felon, aggravated battery, and burglary. According to the PSI, defendant failed to complete all his mandated hours of substance abuse treatment and failed to appear at several scheduled appointments with his probation officers. At defendant's sentencing hearing, Corporal Franklin testified that defendant appeared "extremely intoxicated" on June 10, 2022, when Franklin responded to a call at a motel. Franklin testified that defendant slurred his words, was staggering, and took up a fighting stance against officers. Defendant then gave a statement in allocution asserting that he was "going through a really bad time mentally" because he was recently divorced and prohibited from seeing his children. Defendant blamed his conviction for being an escaped felon on his "ride" for failing to pick him up to take him to jail and claimed he failed to attend his probation meetings because his probation officer was "rude" for refusing to accommodate his work schedule.
¶ 28 Before sentencing defendant, the trial court stated that it had considered "all of the appropriate factors" and saw no factors in mitigation. The court explained that defendant was a threat to the public who fought "anybody that is in the way of [his] consuming alcohol." Additionally, the court explained that defendant's character and attitude of blaming others for his actions suggested that he was unlikely to comply with probation and was likely to commit another crime. Finally, the court determined that defendant's criminal record was a "strong factor in aggravation," such that deterrence was "probably the strongest factor in aggravation." Accordingly, the court sentenced defendant to five years' imprisonment for aggravated DUI and a concurrent sentence of three years' imprisonment for driving while his license was revoked.
¶ 29 The record establishes that the trial court properly and thoroughly considered the relevant sentencing factors, defendant's history, and his individual circumstances prior to imposing its sentence. The court prioritized deterrence as the "strongest factor" warranting a prison sentence, and we will not reweigh that determination, which was supported by the PSI, Franklin's testimony concerning defendant's attempt to fight the police while intoxicated, and defendant's own comments placing the blame for his actions on others. In turn, the sentence imposed by the court was within the statutory range, and therefore, we presume that it was proper. Accordingly, we cannot say that defendant's sentence was greatly at variance with the spirit and purpose of the law or manifestly disproportionate to the nature of the offense.
¶ 30 Nor can we conclude that the trial court abused its discretion in denying defendant's motion to reconsider his sentence. In his motion, defendant alleged that the court failed to consider several mitigating factors when it sentenced him. However, as discussed above, the court found that there were no mitigating factors, and instead found that deterrence was the most important factor, which warranted a prison sentence. Accordingly, we agree with OSAD that defendant can raise no issue of arguable merit that the court abused its discretion in imposing its sentence or in denying his motion to reconsider his sentence.
¶ 31 In sum, we agree with OSAD that defendant can raise no issue of arguable merit in this appeal related to the underlying judgment pursuant to his guilty plea, the revocation of his term of probation, or the sentence defendant received after his term of probation was revoked.
¶ 32 III. CONCLUSION
¶ 33 For the reasons stated, we grant OSAD's motion to withdraw as appellate counsel and affirm the trial court's judgment.
¶ 34 Affirmed.