Opinion
NO. 5-18-0494
05-07-2021
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSEPH A. LECKNER, Defendant-Appellant.
NOTICE
Decision filed 05/07/21. 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 is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Christian County.
Nos. 17-CF-156, 17-CF-54, & 17-CF-99
Honorable Bradley T. Paisley, Judge, presiding.
JUSTICE WELCH delivered the judgment of the court.
Justices Cates and Moore concurred in the judgment.
ORDER
¶ 1 Held: The defendant's sentences are upheld where there was no error in sentencing him to three mandatory consecutive sentences and where his sentence of seven years' imprisonment for attempted residential arson was not excessive.
¶ 2 This is a direct appeal from the circuit court of Christian County. The defendant, Joseph A. Leckner, pled guilty to failure to register as a violent offender against youth, aggravated battery, and attempted residential arson. He was sentenced to 12 years' imprisonment to be followed by 2 years of mandatory supervised release. He raises two issues on appeal: (1) whether the trial court erroneously imposed mandatory consecutive sentences for all three charges where two of the offenses should have been concurrent, and
(2) whether the court abused its discretion where it sentenced him to the maximum term for the charge of attempted residential arson. For the following reasons, we affirm.
¶ 3 I. BACKGROUND
¶ 4 On March 27, 2017, the defendant was charged by information for failing to register as a violent offender against youth on March 8, 2017. The defendant was homeless and was required to register weekly with the Taylorville Police Department. A warrant was issued for his arrest and, on April 4, 2017, he was arrested and detained at the Christian County correctional facility.
¶ 5 On May 31, 2017, the defendant was charged by information with one count of aggravated battery. It was alleged that on May 15, 2017, while in custody awaiting judgment for the failure to register offense, the defendant got into an altercation with correctional officer Jeremy Tucker. The defendant pushed and struggled with Tucker while attempting to leave his jail cell, resulting in an injury to Tucker.
¶ 6 On August 4, 2017, the defendant was charged by information with one count of attempted residential arson. It alleged that on August 2, 2017, the defendant lit a pile of paper on fire in his cell.
¶ 7 The defendant pled guilty to all three charges. Prior to sentencing, a presentencing investigation report was prepared for the defendant, which included information indicating his long history with substance abuse and mental health issues.
¶ 8 At the sentencing hearing, officer Steve O'Brian testified about the circumstances related to the attempted residential arson charge. He testified that prior to the event leading to the charge, the defendant had lit a small fire in the day room. Then, later that day, the
defendant and another prisoner entered a cell occupied by a third inmate, started a larger fire, and wedged the cell door shut. The flames of the fire were three to four feet high. The prisoners refused to comply with orders from officers to unwedge the door, so the officers administered pepper spray twice before they were able to enter. O'Brian later learned that the fire was started by the defendant using an electronic cigarette.
¶ 9 Jeremy Tucker testified regarding the details of the events and the injury he suffered as a result of the defendant's aggravated battery charge. It was his testimony that he and another officer heard yelling and knocking and discovered that the door to the west dorm had been jammed shut. The officers ordered the inmates to open the door several times before deploying pepper spray through the chuckhole. The door was then unjammed, and officers gained access. There were seven or eight inmates in the room. The inmates, including the defendant, were handcuffed and removed. The defendant was taken for a shower, after which officers placed him in segregation. Once in segregation, the defendant used his clothes to cover the surveillance camera in his cell. Officers ordered him to give them his shirt. He refused and put his shirt down his pants. Officers then entered the defendant's cell, took his shirt, and turned to exit. The defendant attempted to follow the officers out of his cell, and the officers tried to push him back. There was then a physical struggle that resulted in an injury to Tucker's right shoulder. Tucker missed six hours of work as a result of the injury.
¶ 10 Rohn Burke testified about the defendant's other infractions while in custody. He iterated that the defendant had received 15 disciplinary reports, one of which involved a physical altercation with another inmate.
¶ 11 Holly Conway, with whom the defendant shares a daughter, testified on his behalf. She reported noticing an improvement in the defendant's demeanor and behavior since he was first incarcerated. Sue Paso also testified on the defendant's behalf about his expressed desire to improve his behavior. In allocution, the defendant apologized to the trial court for his behavior. He explained that his acting out was caused by his feeling "doomed" and his lack of a support system but that he was doing better now.
¶ 12 In sentencing the defendant, the trial court discussed the factors it was considering in both mitigation and aggravation. The court first recognized that the defendant had a desire to improve himself and that he had been given "a crappy hand" in life. The court noted that the defendant's upbringing, mental illness, substance abuse, and acting out all contributed to his circumstances. In aggravation, the court found that as to the residential arson offense specifically, the fire started by the defendant threatened serious harm. The fact that the fire was in an old, small building created a threat of it spreading, threatening both inmates and staff. Also in aggravation, and relating to the other charges, the court noted the defendant's criminal history—including four prior felony convictions—and the need to protect the public—specifically the staff and other inmates in the jail. The court opined that it was highly unlikely that the defendant would succeed under normal probation parameters and determined that incarceration was merited.
¶ 13 Based on these considerations, the trial court sentenced the defendant to 3 years' imprisonment on the failure to register offense, 2 years' imprisonment on the aggravated battery offense, and 7 years' imprisonment on the attempted residential arson offense, each to be served consecutively, for a total sentence of 12 years' imprisonment.
¶ 14 On September 20, 2018, the defendant filed an amended motion to reconsider sentence arguing, inter alia, that the trial court abused its discretion in sentencing him, particularly where it imposed the maximum sentence for the residential arson charge. The defendant contended that due to the short duration of the fire and minimal damage, a maximum sentence was not appropriate. Following a hearing, the court denied the motion. The defendant appeals.
¶ 15 II. ANALYSIS
¶ 16 On appeal, the defendant raises two issues. First, whether the trial court erred in sentencing him to three mandatory consecutive sentences. Second, whether the court abused its discretion in sentencing him to seven years' imprisonment on the residential arson charge. We note at the outset that both issues have been forfeited as the defendant failed to raise them in the amended motion to reconsider sentence. However, the defendant asserts that this court should review the issues for plain error.
¶ 17 The plain-error doctrine allows a reviewing court to consider an unpreserved sentencing error when a clear or obvious error occurred and the evidence at the sentencing hearing was closely balanced or that error was so egregious as to deny a defendant a fair sentencing hearing. People v. Piatkowski, 225 Ill. 2d 551, 565 (2007). Under either prong of the plain-error analysis, the burden of persuasion remains with defendant. People v. Herron, 215 Ill. 2d 167, 187 (2005). However, the first step in plain-error review is to determine whether any error has been committed at all. People v. Johnson, 347 Ill. App. 3d 570, 574 (2004). If error did not occur, this court need not consider whether either of
the prongs has been satisfied. Herron, 215 Ill. 2d at 187. Therefore, we must first determine whether each issue raised by the defendant resulted in an error.
¶ 18 A. Consecutive Sentences
¶ 19 The defendant contends that the trial court erred in sentencing him to mandatory consecutive sentences as a result of its misinterpretation of section 5-8-4(d)(8) of the Unified Code of Corrections (Code) (730 ILCS 5/5-8-4(d)(8) (West 2016)). The defendant cites People v. Davis, 2013 IL App (4th) 110785, in support of his argument that the factual basis provided by the State established that while the defendant was in custody for his first offense, he "committed the remaining two offenses," and consecutive sentences were therefore not mandatory. Furthermore, he maintains that the Code is, at a minimum, ambiguous and therefore must be construed in his favor.
¶ 20 Generally, we review a sentence imposed by the trial court for an abuse of discretion. People v. Perkins, 408 Ill. App. 3d 752, 762 (2011). However, when the issue raises a question of statutory interpretation, we review de novo. Davis, 2013 IL App (4th) 110785, ¶ 26.
¶ 21 "The fundamental rule of statutory construction is to ascertain and give effect to the intent of the legislature." Landis v. Marc Realty, L.L.C., 235 Ill. 2d 1, 6 (2009). "The best indicator of the legislature's intent is the language in the statute, which must be accorded its plain and ordinary meaning." Id. "Where the language in the statute is clear and unambiguous, this court will apply the statute as written without resort to extrinsic aids of statutory construction." Id. at 6-7.
¶ 22 The Code states that, "If a person charged with a felony commits a separate felony while on pretrial release or in pretrial detention in a county jail facility or county detention facility, then the sentences imposed upon conviction of these felonies shall be served consecutively regardless of the order in which the judgments of conviction are entered." 730 ILCS 5/5-8-4(d)(8) (West 2016).
¶ 23 In Davis, defendant was convicted and sentenced for three separate felony offenses. Davis, 2013 IL App (4th) 110785, ¶ 4. Defendant was originally sentenced to a consecutive sentence on his first offense, and to concurrent sentences for his latter two offenses. On appeal, in order to establish that his sentences were void, defendant argued that he should have been sentenced to three mandatory consecutive sentences, instead of one consecutive sentence and two concurrent sentences. Defendant initially committed aggravated battery, was charged with that offense, and then released on bond. Id. While on bond, he committed the separate felonies of home invasion and delivery of cannabis. Id. He was charged for home invasion and taken into custody. Id. Then, while in custody, he was charged for the delivery of cannabis; he committed this while on bond for the initial aggravated battery offense but before he was charged for home invasion. Id.
¶ 24 Defendant's first conviction and sentence were for the aggravated battery charge. Id. ¶ 5. He then pled guilty to, and was sentenced for, delivery of cannabis. Id. ¶ 6. Finally, he pled guilty to, and was sentenced for, home invasion. Id. ¶ 7. Defendant's sentences for the later-committed offenses of delivery of cannabis and home invasion ran concurrent to each other but consecutive to his initial felony of aggravated battery. Id. He then appealed, arguing that his sentences were void because the Code required all three to run
consecutive to each other. Id. ¶ 31. The appellate court disagreed and upheld the sentences, finding that the Code "does not require that consecutive sentences be imposed regarding each of the later-committed felonies after sentence is imposed on the first of those felonies." Id. ¶ 32.
¶ 25 We find the defendant's reliance on Davis to be misplaced. Davis committed both the home invasion and delivery offenses after he was charged with, and while he was released on bond for, aggravated battery. Therefore, his sentences for home invasion and delivery were required to run consecutive to his aggravated battery sentence. However, because defendant had already committed the delivery offense before he was charged for the home invasion offense, the sentences for delivery and home invasion were not required to run consecutive to one another under the plain language of section 5-8-4(h) of the Code (730 ILCS 5/5-8-4(h) (West 2006)).
¶ 26 Contrary to Davis, here there was no temporal overlap of the defendant's offensive conduct and the charges resulting from said conduct. The record establishes a linear timeline of conduct followed by a charge being filed for each offense. As a result, the plain and ordinary meaning of the Code mandates consecutive sentences for all three offenses in this case. The defendant was first charged with failure to register on March 27, 2017. He was taken into pretrial detention on that charge on April 4, 2017. On May 15, 2017, he was involved in a physical confrontation with a correctional officer and was charged with aggravated battery on May 31, 2017. On August 2, 2017, the defendant started a fire and was charged with attempted residential arson on August 4, 2017. The sentences for the defendant's convictions were mandatory consecutive sentences, regardless of how the
State phrased the factual basis. In applying the plain language of the Code, we also find that it is not ambiguous, and we need not resort to the use of extrinsic aids for our interpretation and application. Because we find that the trial court did not err in sentencing the defendant to mandatory consecutive sentences where the Code mandated the result, no further analysis is necessary, and we find no plain error.
¶ 27 B. Excessive Sentence for Attempted Residential Arson
¶ 28 Next, the defendant argues that his sentence for attempted residential arson was excessive. He asserts that the trial court erred where, in determining the appropriate sentence, it improperly considered in aggravation a factor inherent in the offense, resulting in the court imposing the maximum sentence. Specifically, he maintains that the court improperly considered the "threat of serious harm" created as a result of his conduct and relied on this consideration in sentencing him to seven years' imprisonment for attempted residential arson.
¶ 29 A sentence imposed by a trial court is entitled to great deference. Perkins, 408 Ill. App. 3d at 762. When a sentence falls within the statutory range, it will not be disturbed absent an abuse of discretion. Id. An abuse of discretion occurs when the court's decision is arbitrary, fanciful, or unreasonable to the degree that no reasonable person would agree with it. People v. Abrams, 2015 IL App (1st) 133746, ¶ 32. The court is given this deference as it is in a better position to consider, among other things, defendant's credibility, demeanor, general moral character, mentality, social environment, habits, and age. Id. In fashioning an appropriate sentence, a court should balance the seriousness of
the offense with the objective of restoring a defendant's rehabilitative potential. Ill. Const. 1970, art. I, § 11.
¶ 30 In sentencing a defendant, a trial court must consider all relevant factors including defendant's age, demeanor, habits, credibility, criminal history, social environment, and education as well as the nature and circumstances of the crime and of defendant's conduct in the commission of the crime. People v. Calhoun, 404 Ill. App. 3d 362, 385 (2010). Additionally, the Code permits the court to consider certain statutory factors in aggravation and mitigation when imposing a sentence. 730 ILCS 5/5-5-3.1, 5-5-3.2 (West 2016). A court has wide latitude in sentencing a defendant, as long as it neither ignores relevant mitigating factors nor considers improper aggravating factors. People v. Flores, 404 Ill. App. 3d 155, 157 (2010).
¶ 31 The issue of whether the trial court relied on an improper factor in imposing a sentence presents a question of law we review de novo. People v. Abdelhadi, 2012 IL App (2d) 111053, ¶ 8. The weight given to any aggravating factor, however, is within the court's discretion and will not be disturbed absent an abuse of discretion. People v. Arbuckle, 2016 IL App (3d) 121014-B, ¶ 39. Defendant bears the burden of establishing that his sentence was based on improper considerations. People v. Dowding, 388 Ill. App. 3d 936, 943 (2009). Accordingly, we will not reverse a sentencing court unless it is clearly evident that the sentence was improperly imposed. People v. Ward, 113 Ill. 2d 516, 526 (1986).
¶ 32 In general, a factor implicit in the offense for which defendant was convicted cannot be used as an aggravating factor in sentencing. People v. Phelps, 211 Ill. 2d 1, 11 (2004).
A factor cannot be used both as an element of an offense and as a basis for imposing "a harsher sentence than might otherwise have been imposed." People v. Gonzalez, 151 Ill. 2d 79, 83-84 (1992). This dual use of a single factor is often referred to as a "double enhancement." Id. at 85. This rule is predicated on the assumption that, in designating the appropriate range of punishment for an offense, the legislature necessarily considered the factors inherent in the offense. People v. Rissley, 165 Ill. 2d 364, 390 (1995).
¶ 33 Initially, we note that the parties agree, and the record establishes, that in sentencing the defendant, the trial court considered in aggravation the threat of serious harm created by the defendant's conduct in committing the residential arson; and that it relied on that factor in imposing the maximum sentence. The defendant argues that this was improper as the threat of serious harm is inherent in the offense of residential arson. We disagree.
¶ 34 A person commits attempted residential arson in violation of section 20-1(b) of the Criminal Code of 2012, "when he or she, in the course of committing arson, knowingly damages, partially or totally, any building or structure that is the dwelling place of another." 720 ILCS 5/20-1(b) (West 2016).
¶ 35 The defendant cites Abdelhadi, 2012 IL App (2d) 111053, in support of his contention that "threat of serious harm" is inherent to the offense of residential arson. In Abdelhadi, defendant pled guilty to aggravated arson (720 ILCS 5/20-1.1 (West 2008)) and was sentenced to 10 years' imprisonment. Id. ¶ 1. In determining the appropriate sentence, the trial court stated that it considered, in aggravation, that defendant's conduct did, in fact, endanger the lives of other. Id. ¶ 4. On appeal, defendant argued that threat of harm was an inherent element in the offense and that it was error for the court to consider it as a factor
in aggravation. Id. ¶ 6. The Second District agreed with defendant, finding that threat of harm was inherent to the offense of aggravated arson. Id. ¶ 12.
¶ 36 We find Abdelhadi distinguishable from the case at bar, though, as the elements of aggravated arson differ from residential arson where the former requires additional evidence that defendant knew or should have known one or more persons were present therein, or a person suffered great bodily harm. 720 ILCS 5/20-1.1 (West 2016). This is not, however, required for a conviction of residential arson. See id. § 20-1(b). We find that threat of serious harm is not an element inherent to the offense of residential arson. See id. Therefore, the trial court did not err in considering the threat of harm caused by the defendant's conduct in imposing a maximum sentence for attempted residential arson.
¶ 37 Lastly, we find that the punishment imposed by the trial court was not excessive where the defendant's sentence of seven years' imprisonment was within the statutory range of three to seven years, and where the court properly considered factors in mitigation and aggravation in imposing the maximum sentence.
¶ 38 III. CONCLUSION
¶ 39 Based on the foregoing, the judgment of the circuit court of Christian County is affirmed where the trial court committed no error in sentencing the defendant to three mandatory consecutive sentences and where its sentence of seven years' imprisonment for attempted residential arson was not excessive.
¶ 40 Affirmed.