Opinion
No. 1-15-3043
12-29-2017
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JEFFREY RILEY, 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. 14 CR 10823
Honorable Thaddeus L. Wilson, Judge Presiding.
JUSTICE CUNNINGHAM delivered the judgment of the court.
Justices Connors and Delort concurred in the judgment.
ORDER
¶ 1 Held: Defendant did not receive an excessive sentence where the trial court considered all factors in aggravation and mitigation, was aware of the proper sentencing range, and reviewed defendant's criminal history. Defendant forfeited his challenge to the fines, fees, and costs order.
¶ 2 Following a bench trial, defendant Jeffrey Riley was found guilty of delivery of a controlled substance (720 ILCS 570/401(d) (West 2012)). The court sentenced him, because of his criminal background, to a Class X sentence of nine years in prison and assessed $1,549 in
fines and fees. On appeal, the defendant contends that his sentence is excessive and challenges the fines and fees order. We affirm the defendant's sentence and find that he forfeited his challenge to the fines and fees.
¶ 3 The defendant does not challenge the sufficiency of the evidence to sustain his conviction, so we need not discuss in detail the evidence presented at trial. Chicago police officer Ethan Ceja testified that, on May 28, 2014, he was working as an undercover narcotics officer. He approached the defendant on the street and requested "sawbuck blows," which is street terminology for $10 bags of heroin. The defendant told Ceja to follow him to a vacant lot. The defendant told Ceja "give me the money," and took Ceja's $20 in marked funds. The defendant returned five minutes later with two Ziploc bags which contained a white powder that Ceja suspected was heroin. After the defendant's arrest, the powder tested positive for heroin.
¶ 4 The defendant testified that, on the day of the incident, a police officer approached him and asked if he "know about some blows." The defendant directed hi m down the street. The defendant stated that the officer later asked the defendant to obtain the drugs for him. The defendant testified that he did not obtain the drugs for the officer.
¶ 5 The trial court found the defendant guilty of delivery of a controlled substance, denied the defendant's amended motion for a new trial, and proceeded with sentencing.
¶ 6 The pre-sentence investigation report ("PSI") indicated that the defendant was born in 1959, had a close relationship with his now-deceased parents and his siblings, and had no history of physical, mental, or sexual abuse. Three of his four siblings had a history of substance abuse, as did the defendant, who had a $20-per-day heroin habit prior to his incarceration. He had never received treatment for his addiction. The defendant could no longer hold a regular job due to a
stroke he suffered in 2010. As a result of the stroke, he had "memory loss, trouble talking, a struggle to use his arms and other normal symptoms of stroke victims."
¶ 7 The defendant had previously been convicted of: possession of a controlled substance (1999 - two days in Cook County Jail); domestic battery (1998 - two years conditional discharge); three separate theft offenses (1996 - ten days in Cook County Jail; 1994 - two days in Cook County Jail; 1983 - six months probation); two disorderly conduct offenses (1994 - ten days in Cook County Jail; 1992 - three months supervision); burglary (1988 - four years in Illinois Department of Corrections); armed robbery (1985 - six years in Illinois Department of Corrections); and criminal damage to property (1984 - probation terminated unsatisfactory).
¶ 8 During sentencing, the State argued that the defendant was Class X by background due to his 1988 Class 2 burglary and 1985 Class X armed robbery convictions, for which he was sentenced to four years and six years in prison, respectively. Because the defendant received the minimum sentences for both convictions, the State asked for substantial prison time on the instant conviction. In mitigation, defense counsel emphasized that the defendant was 56 years old, his last felony was 28 years earlier, he suffered a stroke in 2010, his entire family suffered from substance abuse, and he had maintained a job in "packing" for seven years. Counsel also argued that the defendant's charged conduct did not threaten physical harm and was unlikely to recur and that an extensive term would endanger the defendant's health. Defense counsel requested the minimum six-year sentence.
¶ 9 The trial court acknowledged that the defendant was subject to a mandatory Class X sentence and sentenced him to nine years in the Illinois Department of Corrections, plus three years of mandatory supervised release. It stated it had considered the evidence at trial, the gravity of the offense, the PSI, the financial impact of incarceration, and all evidence in aggravation and
mitigation. The trial court then assessed $1,549 in fines and fees. The defendant's motion to reconsider the sentence was denied, and he filed his notice of appeal.
¶ 10 On appeal, the defendant contends that his nine-year sentence is excessive and disproportionate to the charged conduct: delivering $20 worth of heroin. The defendant emphasizes that he has not been convicted of a felony for over 25 years, he suffered a stroke in 2010, and suffered from heroin addiction. The defendant contends the sentence is excessive for a non-violent offense, and he notes that he is only subject to such a sentence due to two previous felony convictions from 1984 and 1987. He further argues that reducing his sentence will alleviate the burden on taxpayers for the cost of his incarceration. The defendant asserts that the trial court's nine-year sentence should be reduced to the minimum six-year term.
¶ 11 The trial court has broad discretion in imposing an appropriate sentence, and a sentence falling within the statutory range will not be disturbed on review absent an abuse of discretion. People v. Jones, 168 Ill. 2d 367, 373-74 (1995). An abuse of discretion exists where a sentence is at great variance with the spirit and purpose of the law, or is manifestly disproportionate to the nature of the offense. People v. Alexander, 239 Ill. 2d 205, 212 (2010). When balancing the retributive and rehabilitative aspects of a sentence, a court must consider all factors in aggravation and mitigation including, inter alia, the defendant's age, criminal history, character, education, and environment, as well as the nature and circumstances of the crime and the defendant's actions in the commission of that crime. People v. Raymond, 404 Ill. App. 3d 1028, 1069 (2010). The trial court is not required to explain the value it assigned to each factor in mitigation and aggravation; rather, it is presumed the trial court properly considered the mitigating factors presented and it is the defendant's burden to show otherwise. People v. Brazziel, 406 Ill. App. 3d 412, 434 (2010).
¶ 12 We find that the trial court did not abuse its discretion in imposing a nine-year sentence. Delivery of a controlled substance is a Class 2 felony. 720 ILCS 570/401(d) (West 2014). However, because the defendant had prior felony convictions, he was properly sentenced as a Class X offender, subject to a statutory sentencing range of 6 to 30 years' imprisonment. 730 ILCS 5/5-5-3 (c)(8) (West 2014); 730 ILCS 5/5-4.5-95(b) (West 2014). The nine-year sentence falls within this statutory range and we therefore presume it is proper. People v. Wilson, 2016 IL App (1st) 141063, ¶ 12.
¶ 13 The defendant argues that the court's nine-year sentence for the nonviolent offense of delivering $20 worth of heroin was excessive and constitutes an abuse of discretion in light of the nature of the crime, the defendant's felony background, and his medical conditions. The defendant, however, makes no affirmative showing that the court failed to consider factors in mitigation.
¶ 14 The record shows that the trial court considered all of the statutory factors in aggravation and mitigation, the information contained in the PSI, the financial impact of incarceration, the defendant's history with substance abuse, and his potential for rehabilitation. The trial court specifically stated that it considered these factors. Further, defense counsel argued those factors in mitigation and these factors were listed in the PSI. We presume that the sentencing court considered such mitigating evidence. People v. Benford, 349 Ill. App. 3d 721, 735 (2004). Despite any mitigating factors, the defendant's criminal history alone could warrant a sentence above the minimum where he had 10 prior convictions. People v. Evangelista, 393 Ill. App. 3d 395, 399 (2009); People v. Hill, 400 Ill. App. 3d 23, 29-30 (2011) (nonviolence and addiction did not mandate a reduced sentence where the defendant had 13 prior convictions). While we may have imposed a lesser sentence had we been charged with sentencing the defendant, we cannot
say that the trial court abused its discretion in sentencing the defendant to nine years in prison. We note that the sentence imposed is at the low end of the 6- to 30-year sentencing range.
¶ 15 The defendant also challenges the trial court's fines and fees order. He asserts that the trial court improperly calculated his fines and fees and they should have totaled $1,449, rather than $1,549. He also contends that the court improperly assessed the $5 Electronic Citation Fee (705 ILCS 105/27.3e (West 2014)), and that he should receive pre-sentence custody credit for certain fees which he believes are fines, specifically, the $50 Court System Fee (55 ILCS 5/5-1101(c)(1) (West 2014)) and the $15 State Police Operations fee (705 ILCS 105/27.3(a)(1.5) (West 2014)).
¶ 16 The defendant concedes that he did not raise these challenges in the trial court but asserts that we have authority to review and modify his fines and fees order under Illinois Supreme Court Rule 615(b). He also asserts that we can review the fines and fees errors under the plain-error doctrine or, in the alternative, because his trial counsel was ineffective for failing to object to the errors. The State contends that the defendant's challenge is forfeited because he did not object to the fines, fees, and costs order or include any such claim in a posttrial motion. We conclude that the defendant forfeited his challenge to the fines and fees by failing to raise the issue in the trial court. People v. Hillier, 237 Ill. 2d 539, 545 (2010) (to preserve a claim of sentencing error, a defendant must both object at trial and include the claim in a written post-sentencing motion).
¶ 17 Furthermore, neither Illinois Supreme Court Rule 615(b) nor the plain-error doctrine permits us to review the improperly assessed fines and fees. People v. Grigorov, 2017 IL App (1st) 143274, ¶¶ 13-14; People v. Griffin, 2017 IL App (1st) 143800, ¶ 26, pet. for leave to appeal granted, No. 122549 (Nov. 22, 2017). Further, we will not review the fines and fees
under an ineffective assistance of counsel claim. To establish ineffective assistance of counsel, a defendant must prove both deficient performance and prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984). "[I]neffective assistance of counsel refers to competent, not perfect representation." People v. Easley, 192 Ill. 2d 307, 344 (2000). Defense counsel's failure to object to the de minimis errors in the fines and fees order was not so significant that it denied the defendant his sixth amendment right to effective assistance of counsel. See People v. Smith, 195 Ill. 2d 179, 188 (2000) (to establish a deficient performance, "a defendant must show that his counsel's performance was so inadequate that counsel was not functioning as the 'counsel' guaranteed by the sixth amendment").
¶ 18 We agree that the trial court incorrectly calculated the defendant's total fines and fees, and the total amount should be $1,449. However, this court does not have jurisdiction to correct this error; rather, to the extent the defendant seeks relief for clerical errors, he may petition the trial court. Griffin, 2017 IL App (1st) 143800, ¶ 26, pet. for leave to appeal granted, No. 122549 (Nov. 22, 2017).
¶ 19 For the reasons stated above, we affirm the decision of the trial court.
¶ 20 Affirmed.