Opinion
No. 1-14-2107
09-28-2016
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MATHEW NELLESSEN, Defendant-Appellant.
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 Cook County.
No. 11 CR 7904
Honorable Martin S. Agran, Judge Presiding.
JUSTICE COBBS delivered the judgment of the court.
Presiding Justice Fitzgerald Smith and Justice Lavin concurred in the judgment.
ORDER
¶ 1 Held: Defendant's sentence of natural life in prison without the possibility of parole for first-degree murder accompanied by exceptionally brutal or heinous behavior affirmed over claim that the trial court abused its discretion in imposing sentence by inadequately considering the mitigating factors and improperly likening defendant's conduct to historic mass murderers.
¶ 2 Following a jury trial, defendant Mathew Nellesson was found guilty of first-degree murder for the bludgeoning and subsequent stabbing death of his father, George Nellesson. The jury also found that the murder was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty. The court saw no "opportunity for rehabilitation or redemption,"
and sentenced defendant to natural life in prison without the possibility of parole. On appeal, defendant maintains that his sentence is excessive and constitutes an abuse of discretion in two ways. First, defendant contends that his sentence is disproportionate to the offense given his youth, nonviolent criminal history, and rehabilitative potential. Second, defendant argues that the trial court improperly based his sentence on subjective feelings where it likened him to the perpetrators of mass murder and compared his conduct to historic genocides. For the following reasons, we affirm.
¶ 3 The victim's body was discovered in the basement of his Arlington Heights, Illinois home on April 14, 2011, two days after the murder. Defendant and his codefendants, Marlon Green, Armon Braden, and Azari Braden, were charged with first-degree murder, armed robbery, home invasion, aggravated kidnapping, aggravated robbery, robbery, and kidnapping.
¶ 4 Because defendant does not challenge his conviction, a detailed discussion of the evidence presented at trial is not necessary.
¶ 5 Codefendant Marlon Green testified that about one year before the murder, defendant divulged to him that he disliked his father, who had withheld part of his inheritance after his mother passed. About a week before the murder, defendant asked Green to "help scare his father into giving him some money" and they agreed to split the proceeds. Green enlisted the help of a fellow member of the Black Disciples, Armon Braden, who recruited his brother, Azari Braden. On the morning of April 12, 2011, Azari drove Green and Armon to Arlington Heights, following defendant's directions, dropped them off, and left. Defendant, Green, and Armon waited for the victim inside the home he shared with defendant. Sometime after the victim returned, Green pointed a BB gun at the victim while defendant and Armon tied and duct-taped
him to a chair in the basement. Green obtained the victim's bank logon information and defendant retrieved a laptop. Using the laptop, Green transferred $100,000 from a home equity line of credit into the victim's checking account. Defendant took his father's wallet and instructed him to sign a blank check. Green filled in the check for $100,000 and made it payable to defendant.
¶ 6 Green further testified that defendant retrieved a baseball bat, told Green he was going to kill his father, and said it was "personal." Stating that "his father never loved him" and he "loved his sister more," defendant struck his father's head "[a]bout four or five times." Using a knife from the kitchen, defendant then began stabbing his father in the neck. After Green went back upstairs, defendant emerged from the basement, "dripping blood." Defendant changed out of his bloody clothes, wiped up the blood on the floor, and then put the clothes in a bag with the knife and a towel. Defendant and Green left sometime after Armon, placing the bag with "everything in it" and the laptop in the victim's car. Following the murder, defendant and Green attempted to cash the check at a currency exchange and rented two rooms at a hotel, and then disposed of several items. After throwing the laptop and the baseball bat in the lake near 43d Street, they set the plastic bag on fire in a garbage can. Before he was arrested, defendant made three bank withdrawals and purchased various items including clothing and shoes.
¶ 7 On cross-examination, Green testified that he and Armon had planned to kill and rob defendant, but he had no plans to kill defendant's father.
¶ 8 Julio Rivera testified that he was an assistant manager at a currency exchange called People Location Service on April 12, 2011, when defendant attempted to cash a $100,000 check. Defendant informed Rivera that the check was for back Social Security pay his father owed him.
Although Rivera was unable to verify the check and did not cash it, defendant was calm and polite.
¶ 9 Amanda Meinheit testified that on April 13, 2011, defendant texted her that he was "chilling" in Chicago and asked her if she would like to come "chill tonight." Defendant appeared "normal" when he picked her up, and they talked about "[n]ormal stuff." He brought Meinheit to the hotel and told her that he had the room for two nights but had not slept there. Sometime later, defendant drove Meinheit back to Arlington Heights, gave her some cash, and showed her his father's credit card. When defendant called her the next day, he offered to "give [her] a ride" from rehab and she heard police sirens in the background. Later that day, she learned defendant had been arrested and informed Green. On April 27, 2011, Meinheit received a letter from defendant asking her to testify that he told her: "the three guys arrested with me tried robbing me after my dad and I was on the way to pick you up so we could go to the police station and tell them the day I was arrested and I was going to pick you up from rehab."
¶ 10 Barbara Nelson testified that she lived a few houses down from defendant. On the afternoon of April 13, 2011, she observed defendant walking his dog and he appeared "just like he always was."
¶ 11 Nancy Zimmermann, a friend and former girlfriend of the victim, testified that on April 14, 2011, she received a call from his employer indicating he had missed work and was not answering his phone. When she first arrived to check on the victim, defendant denied her access. He eventually let her inside and said, "You'll know right away from the smell." When Zimmerman discovered the victim's body duct-taped to a chair in the basement, she ran outside and asked defendant, "[W]hat did you do?" Defendant responded, "I did do it," but then he
blamed the crime on the "Illuminatis." Zimmerman spoke with the police that day and subsequently testified before a Grand Jury. About one year later, Zimmerman received a letter from defendant urging her to recant her Grand Jury testimony that he took responsibility for the crime.
¶ 12 Hoffman Estates police officer David Dahlberg testified that on April 14, 2011, defendant led him and a number of other officers on a chase through six or seven suburban jurisdictions at between 45 and 50 miles per hour. After defendant's vehicle stopped because it "could not gain enough traction with the exposed rim," Officer Dahlberg ordered him to exit his vehicle, but defendant did not comply. Defendant was eventually arrested after approximately five additional officers "actively assist[ed]" Officer Dahlberg in removing him from the vehicle.
¶ 13 Dr. Steven White, a forensic pathologist, performed the autopsy of the victim. He observed four injuries attributable to blunt force trauma on the right side of the victim's head. He found that the victim was alive when he sustained these injuries and inflicting them required "a great deal of force." The autopsy further revealed four "sharp force" wounds on the victim's neck, including a cut to his jugular vein. Dr. White opined that "multiple sharp and blunt force injuries" caused the victim's death, which would have occurred within 10 minutes of the cut to his jugular vein.
¶ 14 After the State rested, defendant moved for a directed finding. The court denied the motion.
¶ 15 Defendant called two witnesses. Arlington Heights police officer Timothy Kalter testified that on April 14, 2011, Zimmerman never related to him that defendant said he "did it." Police
Captain Andrew Whowell testified that when defendant was taken into custody, he had superficial cuts on his hands and his face and was bleeding.
¶ 16 The jury found defendant guilty of first-degree murder and that the murder was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty.
¶ 17 Defendant filed a motion for a new trial, which the court denied.
¶ 18 A presentence investigation report (PSI) was compiled, which included defendant's version of the events. According to defendant, he and his father were both tied up when his father provided his bank information to their captors. Defendant stated that Green said they "had too much potential to be witnesses" and his father told Green to take his life instead of defendant's. In defendant's version of the events, Green killed his father, then kidnapped defendant at gunpoint and forced him to make ATM withdrawals. Defendant believed he was kept alive because he "was the key to the money."
¶ 19 At sentencing, the State presented testimony in aggravation from Arlington Heights police officers regarding defendant's prior criminal activity.
¶ 20 Arlington Heights police officer Michael Butler testified that on July 24, 2010, he responded to a call that a green Camero had perpetrated a "hit and run" against a vehicle parked in defendant's driveway. When the officer located the green Camero, the right front fender appeared recently damaged, and defendant was the sole occupant. Defendant was arrested and found guilty of leaving the scene of an accident.
¶ 21 Arlington Heights police detective Sergeant Richard Sperando testified that he interviewed defendant in connection with the April 3, 2009, cashing of forged checks belonging to his father. After admitting that he forged his father's name on seven checks and cashed them
for a total of $1,650, defendant received one year of supervision and 40 hours of community service for misdemeanor deceptive practice. Sergeant Sperando later investigated the June 7, 2009, residential burglary of goods valued at approximately $10,000. Defendant was charged with residential burglary after he admitted that he burglarized the residence with another individual, and showed the police where "he stashed" the stolen items. Sergeant Sperando further testified that Officer David Lavin Junior went to defendant's home on July 2, 2010. After defendant had locked the victim out of the house, the victim called the police because he observed defendant waiving two knives back and forth through the window. Finally, Sergeant Sperando testified that according to Meinheit, defendant smoked marijuana on April 13, 2011, when she went to the hotel with him.
¶ 22 The State presented victim impact statements from the victim's brother, Jeff Nellesson, the victim's sister-in-law, Cherry Nellesson, and the victim's daughter, Lisa Selman. Cherry relayed that her memories of the victim would always be accompanied by the "horrid thought" of how he was unexpectedly and "brutally" taken away. Addressing defendant after his statement, Jeff said, "Knowing that you're in jail makes society a little safer." Lisa wrote that her father was her best friend, he gave her and defendant everything, and they "wanted for nothing." Despite defendant's constant "deviant behavior" and lack of respect toward her father, he maintained hope that defendant would "one day change for the better." Requesting the maximum sentence, she hoped that defendant would be held "accountable for his actions, something he has avoided his entire life."
¶ 23 In aggravation, the State addressed defendant's claim in the PSI that he was a victim held at gunpoint, and argued that it was at odds with the evidence of his actions after the murder.
These actions, including that defendant partied and smoked marijuana with his friends, attempted to profit from his father's money, came and went from his home and walked his dog "as if it's no big deal," with his father's body in the basement, and fled when Zimmerman arrived to check on the victim, showed he was coldhearted and concerned only for himself.
¶ 24 Describing defendant's criminal history, the State argued that although he had received light punishments, defendant squandered each opportunity to reform, violating his probation for residential burglary three times. The State requested the court to consider deterrence and the need to protect the community from individuals like defendant in further aggravation. The State noted that defendant recruited "partners in crime to help him take that money from his father." In light of the jury's finding that the acts were brutal and heinous, the State recommended that defendant be sentenced to serve natural life in prison.
¶ 25 In mitigation, defense counsel presented a number of letters and testimony. Daniel Sipiora testified that defendant had been friends with his son since 2009. During that time, defendant seemed "trustworthy," generous, and loyal. He believed that defendant had the potential to rehabilitate and eventually make a positive contribution to society. Daniel's son, Julian Sipiora, described defendant as someone with a "warm heart and good intentions." Although defendant had been troubled after his mother passed away, he became a "giving and selfless person."
¶ 26 Father Daniel Hall, one of defendant's teachers at St. Viator High School, relayed that defendant was lost after his mother's death and stated, "Were it not for drugs, this letter would not be necessary." Father Hall believed defendant had "plenty of time for redemption," and he asked the court to consider giving defendant a chance at parole.
¶ 27 Frank Cairo testified that defendant and his son had been friends since defendant was "a little guy" and defendant's father "was always at a loss on how to raise [defendant] after the loss of his wife." Defendant was "[a]lways happy, always joking, just a fun loving guy." But, when his mother died, "it all started going downhill" and the "drugs kept getting him in more trouble." Frank's wife, Eileen Cairo, testified that defendant was always respectful and they "trusted him enough to take him on [their] family vacation." Despite his continued drug abuse, he was always polite and she "never saw a mean bone in [defendant's] body." The marijuana was his consistent disciplinary issue. Frank and Eileen's son, Louis, stated that defendant was his life-long best friend who had always been there for him, and showed him a "sensitive caring side." He "truly believe[d]" that defendant would "learn from what he did."
¶ 28 Defendant's maternal grandmother expressed that defendant "began to make bad choices in his friends" after his mother died. She believed that a "long prison term would make him a hardened criminal" and because he was young, he could still become a "productive and respectful citizen."
¶ 29 In his argument in mitigation, defense counsel stressed that defendant's loss of his mother set him upon his self-destructive path, that the letters and testimony showed defendant was respectful, and his criminal history was non-violent. Defense counsel stated that a significant sentence would signal to defendant that he was beyond rehabilitation. Counsel argued that defendant's actions were consistent with a 19-year-old who was not fully developed as a young man, and whose substance abuse issues contributed to his position. Noting that the State agreed to recommend an 18-year sentence for armed robbery for Green in exchange for his testimony,
defense counsel argued that Illinois law prohibits arbitrary and unreasonable disparity between the sentences of similarly situated defendants.
¶ 30 In allocution, defendant expressed his appreciation to the individuals who supported him. He acknowledged the opportunity he had to lead a near perfect life, and hoped that those who helped him did not believe he took it for granted. Although several bad choices led him down the wrong path, "there was always somebody else there to turn [him] around." He said the verdict might have been different if he had testified, and "if [his mother] was still around, we all wouldn't be here today."
¶ 31 Prior to announcing sentence, the trial judge noted that despite his experience as a prosecutor and a criminal defense attorney, the facts of the instant case, including the manner of execution, were beyond his comprehension. The court then stated:
"I'm a believer that in the world that there's a constant battle between good and evil and every so often evil gets the upper hand.
I've read a lot of books about the holocaust. One of them which struck me was a book called Hitler's Willing Executioners, Ordinary Germans, the Holocaust. It's about really ordinary people who committed just awful crimes. And I'm a believer that ordinary people are capable of just terrible, terrible acts, but most of us don't do it.
But you don't have to go to the holocaust, you can go in our lifetime to Rwanda. You can go to Cambodia in my lifetime where 20 percent of the population was killed. Or even now in Syria and Iraq where it's just hard to understand how evil people can become.
But this kind of evil should not happen in Arlington Heights, Illinois. It should not happen and the fact that it raised its ugly head here in you is something that I just can't get a grip on."
¶ 32 Turning to his description of himself as a victim in the PSI, the court noted that to believe his story, it would have to disregard the testimony of Nancy Zimmerman and Amanda Meinheit, and the "car chase throughout the suburbs." Even if Green committed the "terrible acts," defendant did not react as an uninvolved person would, and call the police the moment he escaped. The court stated:
"So I read very carefully the victim impact statements. I've listened to the people who have testified here in court today. I read all the letters on your behalf and I listened carefully to what they had to say. ***
***
I've considered the statutory considerations in aggravation and I've considered the statutory considerations in mitigation. I've also considered your ability to be rehabilitated and I'm taking into consideration your very young age when you committed this crime.
However, based on the nature of this crime, I do not see an opportunity for rehabilitation or redemption. This is a crime which is so heinous, so brutal, and so cruel that I cannot impose any sentence other than natural life."
¶ 33 The court sentenced defendant to a term of natural life in prison without the possibility of parole. Defendant filed a motion to reconsider his sentence arguing that it was excessive in light of his background and the nature of his participation in the offense.
¶ 34 At the hearing on the motion, the court responded that defendant put the events in motion that caused the murder. Noting that his demeanor during the three-year proceedings was mostly "combative and arrogant," the court stated that, "At no time [had] he exhibited any contrition or remorse for his father's death." Acknowledging the studies related to development of the judgment portion of the brain, the trial court stated, "[T]his is not a lapse of judgment. This is a situation where, after the crime took place, the body remained in the basement of this kid's house while he slept in that house, went to and from that house, just acted like nothing took place." Finding that natural life was "the only sentence which [it] could have imposed for the protection of society," the trial court denied defendant's motion to reconsider his sentence. This appeal followed.
¶ 35 On appeal, defendant maintains that his sentence is excessive and constitutes an abuse of discretion for two reasons. First, defendant contends that his sentence is disproportionate to the offense given his youth, nonviolent criminal history, and rehabilitative potential.
¶ 36 The trial court's sentencing decisions are entitled to broad deference on appeal. People v. Stacey, 193 Ill. 2d 203, 209 (2000). Absent an abuse of discretion, reviewing courts must not disturb the sentence imposed by the trial court. People v. Snyder, 2011 IL 111382, ¶ 36. Where the sentence falls within the prescribed statutory limits, an abuse of discretion occurs only if the sentence imposed is greatly at variance with the purpose and spirit of the law or is manifestly disproportionate to the offense. People v. Alexander, 239 Ill. 2d 205, 212 (2010). A sentencing court may, in the exercise of its discretion, impose a term of natural life imprisonment for first-degree murder if it is found to be accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty. 730 ILCS 5/5-8-1(a)(1)(b) (West 2010).
¶ 37 We find that the trial court did not abuse its discretion in imposing the statutory maximum sentence of natural life imprisonment without the possibility of parole. 730 ILCS 5/5-8-1(a)(1)(b) (West 2010). Absent some indication to the contrary, the trial court is presumed to have considered the mitigating evidence in imposing sentence. People v. Canet, 218 Ill. App. 3d 855, 864 (1991). Here, the trial court expressly stated that it considered the statutory factors in mitigation and aggravation, defendant's young age when he committed the offense, the statements at the sentencing hearing, and the letters requesting a lenient sentence. At the sentencing hearing, and in his motion to reconsider sentence, defense counsel argued defendant's youth and nonviolent criminal history favored a more lenient sentence. The trial court considered the "brutal" and "cruel" nature of the crime and determined that there was no opportunity for rehabilitation or redemption. As such, the record reflects that the trial court considered defendant's youth, lack of violent background, and rehabilitative potential in imposing sentence.
¶ 38 In addition, "[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). The trial court, having observed the proceedings and the defendant, is in a superior position to consider these factors than the reviewing court, which must rely on the "cold" record. Alexander, 239 Ill. 2d at 213. Thus, a court reviewing a defendant's sentence must not substitute its judgment for that of the trial court and reweigh the sentencing factors. Id.
¶ 39 Here, the trial court, having heard the evidence and observed defendant, properly considered the particular circumstances of this case. Specifically, the trial court did not find defendant's story in the PSI couching himself as an innocent victim who was held at gunpoint to
be credible. Noting the testimony from Meinheit and Zimmerman, and the "car chase throughout the suburbs," the trial court explained that defendant's behavior after the crime was inconsistent with that of an uninvolved person, who would call the police immediately after escaping his captors. Moreover, in denying defendant's motion to reconsider sentence, the trial court elaborated that "[T]his is not a lapse of judgment. This is a situation where, after the crime took place, the body remained in the basement of this kid's house while he slept in that house, went to and from that house, just acted like nothing took place." Noting that his demeanor for the duration of the three-year proceedings was mostly "combative and arrogant," the court stated, "At no time [had] he exhibited any contrition or remorse for his father's death." Based on this record, the trial court properly considered the circumstances of this case, including defendant's credibility, demeanor, general moral character, and mentality in imposing sentence.
¶ 40 As such, the record reflects that the trial court considered the relevant aggravating and mitigating factors before imposing a sentence within the permissible statutory range. We must not substitute our judgment for the trial court's determination simply because we may have weighed the factors differently. See id. Considering the factors in aggravation and mitigation, we cannot say that defendant's sentence was greatly at variance with the purpose and spirit of the law or manifestly disproportionate to the offense. We therefore find that the trial court did not abuse its discretion in sentencing defendant to the maximum term within the statutory range. See People v. Smith, 241 Ill. App. 3d 446, 463-64 (1993) (affirming a defendant's 60-year extended term sentence for murder where the trial court considered that she had no prior criminal background, was under some influence of her codefendant, and suffered from battered women's
syndrome, however, the defendant's credibility, demeanor, and general moral character indicated the defendant's extreme lack of remorse for her role in the brutal and heinous crime).
¶ 41 Relying heavily on the Supreme Court's ruling in Miller v. Alabama, 132 S. Ct. 2455, 2460 (2012), defendant notes, had he committed the crime 18 months earlier, when he was still a juvenile, the trial court would have been required to account for his "lessened culpability" and "greater capacity for change." Emphasizing that he committed the offense as a 19-year-old with no prior history of violent crime, defendant maintains that Miller should apply because, like juvenile offenders, he also possessed "greater prospects for reform." Id. at 2464. According to defendant, the trial court inadequately considered these prospects in imposing sentence. We disagree.
¶ 42 In Miller, the Supreme Court held that the "Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders." (Emphasis added.) Id. at 2469. The Supreme Court reasoned that "a judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles." Id. at 2475. Thus, mandatory life sentences for juveniles pose "too great a risk of disproportionate punishment" because they foreclose the trial court from considering all that accompanies a defendant's youth in imposing "that harshest prison sentence." Id. at 2469.
¶ 43 In the instant case, unlike in Miller, defendant was not a juvenile and the sentence was discretionary rather than mandatory. Thus, the trial court had the opportunity to consider his "age and age-related characteristics." Id. at 2475; see also People v. Davis, 2014 IL 115595, ¶43 (under Miller, "[a] minor may still be sentenced to natural life imprisonment without parole so long as the sentence is at the trial court's discretion rather than mandatory"). Furthermore, in
denying defendant's motion to reconsider sentence, the trial court expressly stated that it was aware of the studies related to development of the judgment portion of the brain. However, based on the nature and circumstances of the crime, the trial court found that defendant's acts were "not a lapse of judgment" and it saw no "opportunity for rehabilitation or redemption." Accordingly, Miller does not alter our analysis, and as explained above, defendant's first contention on appeal fails.
¶ 44 Defendant next maintains the trial court abused its discretion and improperly based his sentence on subjective feelings where it likened defendant to perpetrators of mass murder and compared his conduct to historic genocides.
¶ 45 Initially, the State argues that defendant forfeited review of this alleged error because he failed to raise the issue of the court's comments or subjective feelings in his motion to reconsider sentence and did not argue that the plain-error exception to forfeiture applied in his opening brief in this appeal. Absent error, there can be no plain error. People v. Bannister, 232 Ill. 2d 52, 79 (2008). Thus, the first step of plain-error review is determining whether any error occurred. People v. Thompson, 238 Ill. 2d 598, 613 (2010). Here, we find no reversible error in the trial court's comments. Accordingly, there can be no plain error.
¶ 46 Defendant argues that the trial court committed reversible error because it sentenced defendant based upon its subjective feelings, rather than the particular facts and circumstances of the case. Defendant highlights the trial court's comments regarding the holocaust and other genocides, and its belief "that ordinary people are capable of just terrible, terrible acts." These comments, he argues, show that the trial court openly equated defendant with historic killers.
Therefore, defendant concludes, the trial court improperly based his sentence on personal animus or subjective feelings.
¶ 47 To support his contention, defendant likens the instant case to People v. Henry, 254 Ill. App. 3d 899 (1993). In Henry, the appellate court remanded for resentencing where the trial court expressly stated, "This is a really disgusting crime. And that is why you are given this amount of time." Id. at 905. In contrast to Henry, the record in the instant case contains no similar indicia that the trial court, in imposing sentence, actually relied upon the challenged comments or any subjective feelings that allegedly motivated their utterance. To the contrary, when we consider the comments in context, we find that the trial court was illustrating the capacity of ordinary individuals to commit evil acts prior to discussing its considerations in aggravation and mitigation. We agree with the State that "the trial court never compared defendant to Nazis or mass murderers, but merely noted that ordinary people can do extraordinarily evil things, like kill their father over money."
¶ 48 We find that the statements identified by defendant amounted to permissible commentary and did not affect sentencing. As explained above, we find that the trial court based the sentence on the nature and circumstances of the offense and its determination that defendant lacked rehabilitative potential. Accordingly, we cannot find that the trial court's comments prior to imposing sentence constitute reversible error and we reject defendant's second claim of sentencing error in this appeal.
¶ 49 For the reasons stated, we affirm the judgment of the circuit court of Cook County.
¶ 50 Affirmed.