People v. Jackson

JUSTICE WRIGHT, concurring in part and dissenting in part:

I concur in the portion of the opinion vacating two of the three mandatory drug assessment fees, leaving one $3,000 drug assessment fee standing. In this case, the trial judge ordered defendant to pay $7,000 in drug assessment fees. The court, in error, more than doubled the proper fees assessed. We all agree this component of the sentence was incorrect.

In light of the court’s failure to follow the mandates of the statute regarding one component of the sentence, drug assessment fees, I disagree with the majority that we may assume the court properly followed the legislative mandates when fashioning the sentence in this case. Consequently, I strongly dissent from the portion of the opinion affirming the trial court’s sentences of imprisonment on all three counts.

Defendant was sentenced to 14 years’ imprisonment on count II, one year less than the maximum sentence on the Class 1 felony for unlawful delivery of a controlled substance, which carried a sentencing range of 4 to 15 years. The trial court sentenced defendant to 20 years’ imprisonment on count I, a Class X felony for unlawful possession of a controlled substance with intent to deliver, which carried a minimum sentence of 6 years. Finally, the court sentenced defendant to 8 years’ imprisonment on count III, a Class 1 felony for unlawful delivery of a controlled substance, which also carried a minimum sentence of 4 years.

I can find no support in the record that the aggravating factors presented by the State supported these sentences, which were double and triple the minimum sentences that could have been imposed. Nor can I find any support in the record that the trial court considered or intended to foster the rehabilitative potential of this young offender.

I would vacate the sentences in this case, finding the court abused its discretion by disregarding its statutory obligation to independently balance factors in aggravation against the evidence in mitigation. The position taken in this dissent does not create a new standard for reviewing a sentencing decision; it reinforces the old constitutional mandate to balance retribution against rehabilitation, which seemingly has become an abbreviated formality for busy judges.

Our Illinois Constitution requires “All 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. I, §11. In order to achieve this purpose, the legislature has defined the factors to be balanced by the court in mitigation and aggravation prior to sentencing. 730 ILCS 5/5 — 5—3.1, 5 — 5—3.2 (West 2004). In spite of heavy schedules, it is the trial court’s obligation to protect the record by making it apparent to the public, the defendant, and a reviewing court that these considerations were carefully balanced.

I agree with the majority that a reviewing court must give great deference to a judge’s sentence, provided the sentence is within the statutory range. People v. Perruquet, 68 Ill. 2d 149, 154-55 (1977). The Illinois constitutional requirement discussed above is codified in section 5 — 8—1(b) of the Unified Code of Corrections (730 ILCS 5/5 — 8— 1(b) (West 2004)), which provides that the sentencing judge “shall set forth his reasons for imposing the particular sentence,” including statutory mitigating or aggravating factors. Our supreme court has construed the statutory term “shall” in section 5 — 8—1(b) as permissive, rather than mandatory, when applied to the requirement that the trial court set forth the reasons for imposing a particular sentence. People v. Davis, 93 Ill. 2d 155, 162 (1982).

In the two decades since our supreme court’s decision in Davis, trial courts seem to have substituted the flexibility of the permissive “shall” with a practice of creating records that “need not” demonstrate careful reflection prior to sentencing. Reviewing courts have tolerated trial judges who say less, so long as the sentence is within the range of punishment.

In People v. McDonald, 322 Ill. App. 3d 244, 251 (2001), this court affirmed a sentence for a serious and violent crime but recognized the gradual erosion of standards in sentencing. The majority provided measured, cautionary guidance for future dispositions by stating:

“A trial court’s statement of the factors in mitigation or aggravation eliminates speculation regarding the basis of its decision and enables a reviewing court to more intelligently determine if the sentence was proper.” McDonald, 322 Ill. App. 3d at 250-51 , citing Perruquet, 68 Ill. 2d 149 .

It should be noted, in McDonald the trial judge did make a general reference to his consideration of the statutory factors in mitigation and aggravation, but did not specify which factors he applied.

Without reference to the record in this case, the State asserts in its brief, “[T]he trial judge indicated he had considered all aggravating and mitigating factors.” (Emphasis added.) My review of the record suggests this may be an overstatement. The judge did not indicate he had considered any statutory sentencing standards prior to sentencing defendant.

The trial judge’s pronouncement was as follows:

“Okay. Well, I have considered everything I’ve heard at trial and at the sentencing hearing, I have taken a look at the presentence report, and it would appear that Mr. Jackson hasn’t been much of a success at anything. Doesn’t get along with his mother. He was disrespectful to her to the extent that she had to kick him out of the house. Couldn’t manage at school, had discipline problems there until he was kicked out of school.

He starts with a juvenile record. He has had court supervision, which was unsuccessfully terminated. He has a prior conviction for a sex offense, and he was placed on probation. That was revoked. He was placed on probation again. That was revoked. He was placed on probation again, and I see there is another pending petition to revoke, so he wasn’t successful at his probation.

I understand the hardship on the family, but it seems he wasn’t too concerned about his family in the past. The jury considered the predisposition of several offenses, and they came to the conclusion that Mr. Jackson was not entrapped. All things considered, I see these kind of go in reverse order as to date, and I will take them in that order.”

At the close of the sentencing hearing, the prosecutor recommended a sentence that was “more than the minimum,” suggesting the court impose a sentence with the minimum parameters in mind. Yet, the trial court sentenced defendant on count II to one year less than the maximum sentence after this very brief sentencing hearing. On count I, a Class X felony, defendant received a sentence that was more than three times the minimum sentence in this case for his very first sentence to the Department of Corrections. The trial court imposed a 20-year sentence on the 21-year-old offender.

The defendant provided the court with an opportunity to cure any omission by requesting a motion to reconsider the sentence. Again, the court expended only a cursory moment to review defendant’s original sentence. Initially, the court “passed” the case in favor of other cases, before hearing the motion to reconsider on September 22, 2005. With brevity, the prosecutor stated, “Judge, you have heard the evidence. We presented all the mitigation. We don’t have anything further to add.” However, the prosecution did not present any evidence of mitigation during the sentencing hearing. It is unclear from this record whether the court and the prosecution had a clear recollection of this case when reconsidering the sentence.

Without any reference to the facts of the case, the court less than briefly noted and summarily stated:

“I took into consideration everything that I heard at trial, at sentencing, the PSI, considered all the statutes that apply, including those in aggravation and mitigation, and under the circumstances I think the sentence fits. So, the motion is denied.”

The sentence, which was pronounced at the sentencing hearing without evidence of a thoughtful consideration of the standards, was later justified by the same judge stating that the sentence “fits.” The standard commentary, which might apply to any other sentence, does not establish the court independently recalled the facts of this case. Nor does the record indicate the court independently balanced defendant’s youthfulness and rehabilitative potential against his negative history, either during the initial sentencing hearing on August 22, 2005, or when reconsidering the sentence a month later.

The presentence report does not show defendant had previously been sentenced to any term in either the Will County jail or the Department of Corrections. After defendant’s eighteenth birthday, he was charged with and received probation for his only other adult criminal offense, which occurred approximately three years before these drug charges.

Defendant violated his probation for this offense twice for failing to comply with the technical terms of probation. Each violation was treated with justified leniency. The record does not suggest an extensive history of drug deliveries. In spite of the undercover officer’s attempts to purchase larger quantities of drugs, defendant could only provide lesser amounts. Additionally, the transactions took place over a short span of time after the undercover officer offered the unemployed defendant and his friend the possibility of a job in exchange for drugs. Defendant earned his GED while incarcerated in the Will County jail, presumably awaiting the outcome of the instant offenses.

The pronouncement of punishment in this case is similar to the trial judge’s pronouncement in People v. Juarez, 278 Ill. App. 3d 286 (1996), which was reversed on appeal. On review, the appellate court found the 14-year sentence in Juarez excessive because the sentencing judge failed to indicate any aggravating factors and failed to give serious consideration to evidence in mitigation or rehabilitative potential. Accordingly, the appellate court reduced the defendant’s sentence. Juarez, 278 Ill. App. 3d at 295 .

Sentencing should not be an afterthought once a jury returns a verdict. Sentencing is perhaps the most important component of the trial process. Clearly, our supreme court in Davis, and this court in McDonald, did not intend for acceptable judicial practice to completely omit all references to the statutory standards when pronouncing punishment.

While there is no magic formula, at a minimum, this state’s constitution requires the balancing of retribution and rehabilitation. This is not something we should presume on review or base on clairvoyance. We should require proper judicial balancing that is apparent from the record. It is reasonable to expect the trial judge to take a few moments for a young offender, who stands before the court to learn the nature of his punishment and the measure of his rehabilitative potential.

The majority observes the trial judge was familiar with sentencing procedures. However, the record requires the majority to generously deduce that statutory standards were properly balanced by the court. Judicial silence, leading to speculation, is a practice discouraged by this court in McDonald and should not be further encouraged by upholding sentencing pronouncements that are this skeletal.

Prosecutors and defense attorneys who are required to move cases at a rapid pace should be counterbalanced by a methodical judge who insists on adherence to the statutory standards and spends a few moments of the court’s time devoted to fundamental fairness as required by our constitution. Based on this sparse record of the court’s reasoning, I agree with defendant’s assertion that the sentence is excessive and the trial court abused its discretion. Although the court may have been rushed for time, taking 20 years away from a young offender merits a few carefully considered comments regarding the statutory standards.

Once a reviewing court has held a trial judge abused his or her discretion in designing a fair punishment, it may be difficult for a defendant to have confidence in the neutrality of the same sentencing judge. Therefore, I would modify the judgment of the trial court to significantly reduce defendant’s sentences pursuant to Supreme Court Rule 615(b)(4) (134 Ill. 2d R. 615(b)(4)), rather than remand the cause for another sentencing hearing.

For the foregoing reasons, I respectfully concur in part and dissent in part.