People v. Hibbler , 2019 IL App (4th) 160897 ( 2019 )

FILED
June 07, 2019
2019 IL App (4th) 160897 Carla Bender
4th District Appellate
NO. 4-16-0897, 4-16-0898 cons. Court, IL
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) McLean County
TERRELL LASEAN HIBBLER, ) Nos. 15CF906, 15CF1184
Defendant-Appellant. )
) Honorable
) John Casey Costigan,
) Judge Presiding.
JUSTICE STEIGMANN delivered the judgment of the court, with opinion.
Presiding Justice Holder White and Justice Cavanagh concurred in the judgment
and opinion.
OPINION
¶1 In September 2015, defendant, Terrell Lasean Hibbler, pleaded guilty to
threatening a public official (720 ILCS 5/12-9(a) (West 2014)) in exchange for a sentence of 30
months’ probation. While on probation, in October 2015, defendant was indicted for armed
robbery and resisting a peace officer. Id. §§ 18-2(a)(2), 31-1(a-7). The State also filed a petition
to revoke his probation.
¶2 In August 2016, a jury convicted defendant of armed robbery and resisting a
peace officer, and the trial court granted the State’s petition to revoke probation. In September
2016, the court sentenced defendant to 30 years in prison for armed robbery, 3 years for resisting
a peace officer, and 5 years for threatening a public official and ordered all sentences to run
concurrently.
¶3 Defendant appeals, arguing (1) the trial court erred at the sentencing hearing by
considering defendant’s conduct in jail based upon information contained within the presentence
investigation report (PSI), (2) the trial court erred by imposing a sentence that constituted a
double enhancement, (3) the trial court erred by ordering restitution without stating whether it
was to be paid in a lump sum or by installments, (4) trial counsel was ineffective because he
failed to challenge the restitution amount in the PSI, and (5) the trial court erred when sentencing
defendant after revoking his probation because the sentence was based on his subsequent
conduct instead of the original offense for which he had been placed on probation. We agree
only with defendant’s third argument and remand regarding restitution. We reject all of
defendant’s other arguments and otherwise affirm the trial court’s judgment.
¶4 I. BACKGROUND
¶5 A. The Charges
¶6 In August 2015, defendant was indicted on one count of threatening a public
official. Id. § 12-9(a). In September 2015, as part of a negotiated plea agreement, defendant
pleaded guilty to threatening a public official in exchange for a sentence of 30 months’
probation.
¶7 In October 2015, defendant was indicted for armed robbery and resisting a peace
officer. Id. §§ 18-2(a)(2), 31-1(a-7). Later that month, the State filed a petition to revoke his
probation, alleging defendant violated the terms of his probation by committing the offenses set
forth in the October 2015 indictment.
¶8 B. The Trials
¶9 In August 2016, the trial court conducted a jury trial on the armed robbery and
resisting charges. The court simultaneously conducted a bench trial on the petition to revoke.
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¶ 10 Lashkmibhargava Ravi testified he was working at the Blooming Food Mart
(Food Mart), a gas station convenience store located in Bloomington, Illinois, on the night of
October 3, 2015. Ravi stated that defendant entered the store, pointed a gun at him, and
demanded the money in the cash register. Ravi instructed another employee to give defendant the
money, which he estimated to be about $3600. Defendant took the money and ran out of the
store. Ravi called the police to report the robbery and later identified defendant as the robber
after police took him to a location not far from the store where defendant had been arrested.
¶ 11 The State played a surveillance video that depicted the events Ravi described for
the jury. The video also showed defendant pointing the gun at Ravi and the other employee and
placing the money in his front left pocket.
¶ 12 Bloomington police officer Joseph Rizzi testified he was dispatched to a home,
which happened to be near the Food Mart, in response to a reported fight in the residence. Rizzi
stated that, as he approached the home, he saw a black male running through the backyard and
stopped him to inquire about the fight. Rizzi identified the man as defendant in open court.
¶ 13 Rizzi testified that defendant claimed he saw the fight and was running through
the backyard to avoid it. As Rizzi spoke with him, defendant started to back away. Rizzi then
noticed cash bulging out of defendant’s left jeans pocket, which defendant was trying to stuff
into his pocket. Rizzi also noticed defendant’s hand was moving toward his waistband generally.
Rizzi then heard over his radio about an armed robbery at the nearby Food Mart. (Rizzi
explained that Bloomington police officers wear earpieces to listen to information over their
radios so that the public cannot hear.) Rizzi stated that defendant was wearing clothing that was
identical with the description of the robbery suspect.
¶ 14 Rizzi then attempted to detain defendant, but defendant started to run away. Rizzi
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grabbed defendant’s shirt, and a struggle ensued. After the two tumbled down a hill in the yard,
Rizzi attempted to secure defendant’s hands, and defendant fought to get away. Another officer
on the scene came to Rizzi’s aid. The two eventually arrested defendant.
¶ 15 Rizzi testified that he had a cut on his nose, elbow, and both knees as a result of
the struggle. Rizzi noted that his bulletproof vest, which was secured with Velcro on either side
of his torso, came loose during the fight and was twisted in such a way that it no longer offered
him any meaningful protection. (Rizzi also explained that, in part because of incidents such as
this one, the Bloomington Police Department now used vests secured by zippers.) Because Rizzi
believed defendant was the armed robber, he described himself as “[e]xtremely[ ] [t]errified”
during the struggle.
¶ 16 The State presented testimony from multiple other officers who arrived at the
scene. Collectively, they recovered $2685 in cash from defendant’s jeans pocket and a handgun
from the area where the struggle occurred.
¶ 17 Detective Tim Power, who interviewed defendant at the Bloomington police
station, testified that defendant said his fingerprints would be on the gun because someone paid
him $200 to hold it. The gun had live ammunition in it, but the gun’s chamber did not contain a
bullet when the police examined it.
¶ 18 The jury found defendant guilty of armed robbery and resisting a peace officer.
The trial court found the State had proved its petition to revoke defendant’s probation by a
preponderance of the evidence.
¶ 19 C. The Sentencing Hearing
¶ 20 In September 2016, the trial court conducted a sentencing hearing. The PSI was
filed seven days prior to the hearing. The PSI contained a list of rule violations defendant
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committed while in the county jail and a brief description of the factual circumstances of those
violations. The PSI also stated that “the firm *** representing the [Food Mart] Insurer [was]
requesting restitution in the amount of $4,359.92,” and the City of Bloomington was requesting
$280.37 in restitution for Rizzi’s medical treatment.
¶ 21 1. Proceedings Relating to the PSI
¶ 22 At the beginning of the sentencing hearing, the trial court stated it had reviewed
the PSI and then asked the State if it had received the PSI as well. The State indicated it had, and
the court asked if the State had any changes or amendments. The State responded that it did not.
¶ 23 The trial court then asked the same questions of defense counsel, who indicated
he had received the report and asked the court to add one day to the number of days defendant
would receive for presentence credit. The State agreed, and the court changed the PSI to include
an extra day of presentence credit.
¶ 24 The trial court next moved on to defendant’s motion for a new trial. After hearing
argument from counsel, the court denied defendant’s motion.
¶ 25 The trial court then asked the State if it had anything further before the court
proceeded to sentencing. The State asked the court to grant its motion to substitute evidence,
replacing the physical cash recovered from defendant with scanned copies of the bills so that the
cash could be returned to the victim. The State also asked the court to amend the PSI to reduce
the amount of restitution by $2685. The court granted the motion to substitute and also amended
the PSI.
¶ 26 Before proceeding to sentencing, the following exchange occurred:
“THE COURT: Anything further before we get to the sentencing hearing,
Mr. Rigdon?
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MR. RIGDON [(ASSISTANT STATE’S ATTORNEY)]: No, [Y]our
Honor.
THE COURT: Mr. Tusek?
MR. TUSEK [(DEFENSE COUNSEL)]: No, [Y]our Honor.
THE COURT: All right. The Court has received and reviewed the PSI.
The one amendment that Mr. Tusek has requested has been made. Any objection
to the admission of the PSI, Mr. Rigdon?
MR. RIGDON: No, [Y]our Honor.
THE COURT: Mr. Chambers?
MR. CHAMBERS [(MCLEAN COUNTY STATE’S ATTORNEY)]: No,
[Y]our Honor.
THE COURT: Mr. Rigdon is going to handle the sentencing?
MR. CHAMBERS: Both of us.
THE COURT: Both of you. Okay. Mr. Tusek, any objection to the—
MR. TUSEK: No. No objection.
THE COURT: The PSI will be shown as admitted. Any evidence in
aggravation for the State, Mr. Chambers?”
¶ 27 2. Evidence in Aggravation and Mitigation
¶ 28 The State then presented evidence in aggravation. Pursuant to the State’s request,
the trial court took judicial notice of the testimony and evidence submitted at trial. Detective
Power testified that the police recovered drugs from defendant when they searched him after his
arrest. Specifically, Power testified they recovered 10 individual bags of a substance that field-
tested positive for cannabis, two digital scales, and two pills of alprazolam.
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¶ 29 Defendant presented evidence in mitigation, including a written statement from
defendant, a recommendation letter from his aunt, and a copy of a certificate of completion for
“Life Skills.” In defendant’s written statement, he acknowledged that (1) he “broke a lot of Rule
Violations [sic],” (2) that he knew “breakin[g] the rule wasn’t the right thing to do,” and
(3) “the[re] is no valid reason why I should have committed the violation’s [sic] of McLean
County Jail rule’s [sic].”
¶ 30 3. The State’s Arguments
¶ 31 The State made numerous arguments in support of a lengthy sentence. Relevant to
this appeal, the State argued (1) defendant’s pointing the gun and fighting the police officer
threatened harm and (2) defendant’s rule violations in jail were aggravating factors that required
a longer sentence.
¶ 32 Regarding the threat of harm, the State’s Attorney stated as follows:
“When I look at the aggravating factors here, there are quite a few, [Y]our
Honor. The way I see it, I believe that sections A1, 2, 3, 7, and 12 all apply. [(730
ILCS 5/5-5-3.2 (West 2014).)] So taking each one of those at a time, A1, to
threaten serious harm. Did it cause serious harm or did it threaten serious harm to
somebody? I don’t think we’re making any argument that it caused serious harm
to anybody, but did it threaten it? Yes, [Y]our Honor. The State of Illinois has
said, you know, with this being a Class X felony with a 15-year enhancement if a
firearm is used, has said that if somebody walks into a gas station and flashes a
gun—if it’s in their belt and they pull their coat to the side like this to show it,
that’s 21 years there, [Y]our Honor.
This situation went beyond that. As the video shows, he went in there and
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he was holding the gun to one of the individuals, inches away from his chest;
another individual, about a yard away from him. We were a flinch away from this
being a homicide, [Y]our Honor.
In addition to that, the other offense of resisting a peace officer. The Court
heard testimony from Officer Rizzi. And Officer Rizzi’s testimony was earnest.
You could tell from his testimony how concerned he was for his safety on that
night; that he had a report of an armed robbery, someone matching that
description and now reaching for something and not complying with him as he
was struggling with him and is knocking his vest off, and him being aware of the
possible danger that he was in. Officer Rizzi did everything right that night, and it
was still traumatic for him. He was—and it was the defendant who put him in that
dangerous situation. It was his choices that put him in that situation. There were
three different people that evening who were all in fear of being shot that night.”
¶ 33 Concerning defendant’s behavior while in custody, the State explained that
defendant committed at least nine rule violations. The PSI indicated that defendant got in a fight
with another inmate and verbally threatened guards. The State remarked, “It’s easy to behave in
jail. [Defendant] had a hard time doing that.”
¶ 34 Ultimately, the State recommended a sentence of 37 years in prison for armed
robbery, 6 years for resisting a peace officer, and 5 years for the original offense of threatening a
public official.
¶ 35 4. Defendant’s Arguments
¶ 36 Defense counsel argued that defendant should receive the minimum sentence of
21 years in prison. Counsel emphasized that defendant was just 18 years old at the time of the
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offense and that the gun did not have a round in the chamber. Accordingly, “the idea that he—
there but for the grace of God it would have been a murder is not true.” Counsel pointed out that
defendant had a traumatic and unstable youth. Defendant never knew his father and was raised
by relatives because his mother came in and out of his life. His best friend died in his arms from
a gang shooting when defendant was 16. Defendant’s relatives sent him to Bloomington to live
with his mother because a gang threatened to kill defendant. Upon arriving, his mother promptly
kicked him out, and defendant was forced to live with strangers. Counsel emphasized that
defendant had rehabilitative potential, as demonstrated by his attendance at “Youth Build,” a
program that teaches youth trade skills. Counsel also argued that defendant had begun taking
responsibility for his actions.
¶ 37 5. The Trial Court’s Sentence
¶ 38 The trial court began its sentencing remarks by mentioning that although it did not
find any of the statutory factors in mitigation applied, it did consider “certain nonstatutory
factors” as potentially mitigating. These included (1) defendant’s young age, (2) his participation
in “Youth Build” prior to incarceration and educational programs while in jail, and (3) the
difficult circumstances of his childhood.
¶ 39 The trial court then addressed the aggravating factors that it believed applied.
Regarding the threat of harm, the court stated as follows:
“First of all, your conduct caused or—and threatened serious harm; not only to the
individuals in the store, where your gun was pulled and pointed at; not only the
officer you chose to fight with at the time he was detaining you; but what this
Court also believes is society in general, the entire community. When conduct—
when somebody goes into a store and pulls a gun, chooses to fight officers, not
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only are those individuals threatened, but the Court believes society is threatened
as well.”
¶ 40 The trial court also believed there was a need for deterrence and emphasized that
defendant was on probation at the time he committed the armed robbery. The court then
considered defendant’s criminal history and noted that defendant had several juvenile offenses,
some of which included violence.
¶ 41 Regarding defendant’s conduct while in jail, the court stated as follows:
“I have been on the bench now for about 10 years. I was in private practice
before that, and I see a number of people who come up on sentencings to where
there ha[ve] been problems downstairs[, which is where the county jail is located].
And I have to say that when looking at the PSI, I haven’t seen as many problems
as I’ve seen in your case.”
The court listed seven different dates on which major and minor rule violations occurred and
briefly described the nature of some of the violations, particularly those that included “assault
and battery” and “attacking another inmate with a broom.” Finally, the court indicated that it
found this conduct was a factor in aggravation.
¶ 42 Based on the totality of the circumstances, the trial court sentenced defendant to
30 years in prison for armed robbery, 3 years for resisting a peace officer, and 5 years for
threatening a public official and ordered all sentences to run concurrently. The court also ordered
defendant to pay “restitution per the addendum” for the armed robbery. The court’s written order
stated defendant owed restitution in the amount of $1955.29 but did not state when the amount
was due or whether it was to be paid in installments or a lump sum.
¶ 43 6. The Motion To Reconsider
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¶ 44 In November 2016, defendant, through counsel, filed a motion to reconsider
sentence, arguing, in part, that the trial court failed to take into consideration defendant’s
willingness to pay restitution as a mitigating factor. The motion did not contain any allegations
regarding ineffective assistance, and defendant did not file any pro se motions. The trial court
denied the motion to reconsider.
¶ 45 This appeal followed.
¶ 46 II. ANALYSIS
¶ 47 Defendant appeals, arguing (1) the trial court erred at the sentencing hearing by
considering defendant’s conduct in jail based upon information contained within the PSI, (2) the
trial court erred by imposing a sentence that constituted a double enhancement, (3) the trial court
erred by ordering restitution without stating whether it was to be paid in a lump sum or by
installments, (4) trial counsel was ineffective because he failed to challenge the restitution
amount in the PSI, and (5) the trial court erred when sentencing defendant after revoking his
probation because the sentence was based on his subsequent conduct instead of the original
offense for which he had been placed on probation. We agree only with defendant’s third
argument and remand regarding restitution. We reject all of defendant’s other arguments and
otherwise affirm the trial court’s judgment.
¶ 48 A. Defendant’s Misconduct in Jail
¶ 49 Defendant first argues the trial court erred by considering his rule violations while
in jail “without the benefit of witness testimony.” Defendant acknowledges he failed to raise this
argument to the trial court, but maintains it can be reviewed for plain error. The State responds
that this argument was not only forfeited but has been waived by defendant’s affirmative
acquiescence—specifically, his failure to object to the PSI. We agree with the State.
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¶ 50 1. The Applicable Law
¶ 51 “Waiver is the intentional relinquishment of a known right, whereas forfeiture is
the failure to make a timely assertion of a known right.” People v. Bowens, 407 Ill. App. 3d
1094, 1098, 943 N.E.2d 1249, 1256 (2011). “In the course of representing their clients, trial
attorneys may (1) make a tactical decision not to object to otherwise objectionable matters,
which thereby waives appeal of such matters, or (2) fail to recognize the objectionable nature of
the matter at issue, which results in procedural forfeiture.” Id. The doctrine of plain error permits
a reviewing court to consider arguments that a defendant forfeited by failing to raise them to the
trial court. People v. Sebby, 2017 IL 119445, ¶ 48, 89 N.E.3d 675. However, the plain-error
doctrine does not apply to affirmative acquiescence. People v. Dunlap, 2013 IL App (4th)
110892, ¶ 12, 992 N.E.2d 184. “When *** defense counsel affirmatively acquiesces to actions
taken by the trial court, a defendant’s only challenge may be presented as a claim for ineffective
assistance of counsel on collateral attack.” Id.
¶ 52 Nearly 30 years ago, in People v. Powell, 199 Ill. App. 3d 291, 294-95, 556
N.E.2d 896, 898 (1990), this court held that (1) both the defendant and the State are required to
bring any inaccuracies in—or disagreement with—the PSI to the trial court’s attention and
(2) the failure to do so results in the waiver of any objection to the trial court’s consideration of
the contents of the PSI. We further held that “all information appearing in a presentence report
may be relied upon by the sentencing judge to the extent the judge finds the information
probative and reliable.” (Emphasis in original.) Id. at 294. We also suggested that trial courts, at
the start of the sentencing hearing, ask all counsel if they received the PSI and if they found any
inaccuracies. Id. at 294-95.
¶ 53 In People v. Willis, 361 Ill. App. 3d 527, 528, 838 N.E.2d 130, 131 (2005), the
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defendant was found guilty of aggravated battery against a correctional institution employee. At
sentencing, the trial court considered allegations of rules violations contained in the PSI, and
neither party objected. Id. at 529. On appeal, this court held that the defendant had forfeited any
objection to the trial court’s reliance on the PSI and that the trial court was entitled to rely on the
information in the report because the “defendant failed to object to the disciplinary reports or
allege they were unreliable.” Id. at 531. The court noted that the “defendant’s disciplinary record
evidenced his repeated inability to follow institutional rules and a disregard for authority,” which
were relevant to determine his rehabilitative potential. Id.
¶ 54 2. This Case
¶ 55 As in Willis, the information in the PSI was highly relevant because it
demonstrated defendant’s violent behavior and continued disrespect of authority, which are
relevant factors for the trial court to consider when sentencing defendant for his armed robbery
and resisting a peace officer convictions. Defendant failed to object in the trial court to the
information contained in the PSI, and on appeal, defendant does not argue that the information
regarding his rule violations while in jail was inaccurate in any way. Instead, defendant appears
to be arguing that the trial court made a purely procedural error by not requiring live testimony
for the rule violations contained in the PSI.
¶ 56 However, because defendant’s argument is contrary to this court’s holding in
Powell, we reject that argument and reaffirm what we wrote in Powell. That is, a defendant must
raise any and all objections to the PSI to the trial court. See People v. Williams, 149 Ill. 2d 467,
493, 599 N.E.2d 913, 925 (1992) (“Any claimed deficiency or inaccuracy within a presentence
report must first be brought to the attention of the sentencing court, and a failure to do so results
in waiver of the issue on review.”); People v. Matthews, 362 Ill. App. 3d 953, 967, 842 N.E.2d
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150, 161 (2005) (“the failure to object [to a PSI] results in a concession of its accuracy and the
waiver of the claims of inaccuracy”); see also Williams, 149 Ill. 2d at 495 (“No purpose would
be served by giving the parties notice of the presentence reports at least three days prior to the
imposition of sentence [citation] if we were to permit them to later raise objections to the
presentence reports for the first time on appeal.”). We emphatically reaffirm that the trial court
may rely on all of the information in the unobjected to PSI to the extent it believes it is relevant
and reliable. Powell, 199 Ill. App. 3d at 294.
¶ 57 Unquestionably, a defendant should have the opportunity to challenge the
accuracy of the information in the PSI, and defendant received that opportunity here. The PSI
must be given to counsel at least three days prior to sentencing so that they have a meaningful
opportunity to review and investigate its contents. 730 ILCS 5/5-3-4(b)(2) (West 2016);
Matthews, 362 Ill. App. 3d at 967. We note that in this case, the PSI was filed seven days prior to
the hearing.
¶ 58 Because defendant stated he had no objection to the PSI’s admission, he in
essence told the trial court to rely on its contents to the extent the court believed necessary and
reliable.
¶ 59 Another way of viewing defense counsel’s conduct at the beginning of the
sentencing hearing, when the trial court asked counsel if he had any changes or amendments to
the PSI and counsel replied that the only change would be to add one more day for presentence
credit, is that counsel was essentially stipulating that the court may consider all of the
information contained in the PSI. And, as this court wrote in People v. Daniels, 2016 IL App
(4th) 140131, ¶ 86, 58 N.E.3d 902 (quoting People v. Calvert, 326 Ill. App. 3d 414, 419, 760
N.E.2d 1024, 1028 (2001)), “ ‘Parties who agree to the admission of evidence through a
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stipulation are estopped from later complaining about that evidence being stipulated into the
record.’ ”
¶ 60 It is well settled that a party cannot acquiesce to the manner in which the trial
court proceeds and later claim on appeal that the trial court’s actions constituted error. People v.
Lawrence, 2018 IL App (1st) 161267, ¶ 52. This well-established maxim applies with even
greater force in this case because the trial court followed the procedure set forth in Powell. As a
result, we will not review defendant’s argument under the plain-error doctrine.
¶ 61 B. Double Enhancement
¶ 62 Second, defendant argues that his sentence should be vacated because the trial
court erred by considering conduct that was inherent in the offense as an aggravating factor,
resulting in a “double enhancement.” In particular, defendant claims his pointing a gun at
persons during the robbery is consistent with any other armed robbery and therefore created no
more than the “typical risk of harm.” The State responds that defendant’s conduct was
significantly more than the minimum required to commit the offense and was properly
considered an aggravating factor. We agree with the State.
¶ 63 1. The Applicable Law
¶ 64 The Illinois Constitution provides that “[a]ll 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. “The trial court has broad discretionary powers
when selecting an appropriate sentence.” People v. Garcia, 2018 IL App (4th) 170339, ¶ 37, 99
N.E.3d 571. The trial court’s 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
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deterrence. Id.
¶ 65 The Unified Code of Corrections (Unified Code) (730 ILCS 5/5-5-3.1, 5-5-3.2
(West 2014)) sets forth mitigating and aggravating factors that the trial court must consider when
determining an appropriate sentence. People v. Brunner, 2012 IL App (4th) 100708, ¶¶ 43-45,
976 N.E.2d 27. The defendant bears the burden to affirmatively establish that the sentence was
based on an improper factor. People v. Williams, 2018 IL App (4th) 150759, ¶ 18, 99 N.E.3d
590. The appellate court will not reverse a sentence unless it is evident that the trial court relied
upon an improper factor. People v. Bowen, 2015 IL App (1st) 132046, ¶ 49, 38 N.E.3d 98.
Whether the trial court relied upon an improper factor at sentencing is a question of law reviewed
de novo. People v. Arbuckle, 2016 IL App (3d) 121014-B, ¶ 39, 60 N.E.3d 185.
¶ 66 “A double enhancement occurs when (1) a single factor is used both as an element
of an offense and as a basis for imposing a harsher sentence *** or (2) the same factor is used
twice to elevate the severity of the offense itself.” Garcia, 2018 IL App (4th) 170339, ¶ 29. The
Illinois Supreme Court recently described double enhancement as follows:
“The prohibition against dual use of an aggravating factor, referred to as ‘double
enhancement,’ is ‘based on the assumption that, in designating the appropriate
range of punishment for a criminal offense, the legislature necessarily considered
the factors inherent in the offense.’ People v. Phelps, 211 Ill. 2d 1, 12[, 809
N.E.2d 1214, 1220] (2004). Thus, when a defendant contends the court
improperly considered a statutory aggravating factor that was implicit in the
offense, the defendant is asserting that the court imposed a ‘ “harsher sentence
than might otherwise have been imposed” ’ had the court not considered the
improper statutory factor. Id. (quoting People v. Gonzalez, 151 Ill. 2d 79, 83-84[,
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600 N.E.2d 1189, 1191] (1992)).” People v. Johnson, 2019 IL 122956, ¶ 38.
¶ 67 A trial court may consider a defendant’s conduct to constitute an aggravating
factor if that “conduct caused or threatened serious harm.” 730 ILCS 5/5-5-3.2(a)(1) (West
2014). When considering if the defendant “threatened serious harm,” the sentencing court
compares the conduct in the case before it against the minimum conduct necessary to commit the
offense. See People v. Davis, 252 Ill. App. 3d 812, 814, 624 N.E.2d 396, 398 (1993); People v.
Ellis, 401 Ill. App. 3d 727, 731, 929 N.E.2d 1245, 1248-49 (2010). A trial court must examine
“the nature and circumstances of the offense, including the nature and extent of each element of
the offense as committed by the defendant [citations].” (Internal quotation marks omitted.)
People v. Saldivar, 113 Ill. 2d 256, 268-69, 497 N.E.2d 1138, 1143 (1986). “[T]he commission
of any offense, regardless of whether the offense itself deals with harm, can have varying
degrees of harm or threatened harm.” Id. at 269. “[T]he severity of the sentence depends upon
the degree of harm caused to the victim and as such may be considered as an aggravating factor
in determining the exact length of a particular sentence, even in cases where serious bodily harm
is arguably implicit in the offense for which a defendant is convicted.” (Emphases in original.)
Id. Accordingly, the sentencing court’s attention should be “directed at the degree or gravity of
the defendant’s conduct, i.e., the force employed and the physical manner in which the victim’s
death was brought about or the nature and circumstances of the offense.” Id. at 271.
¶ 68 2. This Case
¶ 69 Here, the trial court did not commit any error when it found defendant’s conduct
was an aggravating factor based on the threat of harm. As the State aptly observed at sentencing:
“The State of Illinois has said, you know, with this being a Class X felony with a
15-year enhancement if a firearm is used, has said that if somebody walks into a
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gas station and flashes a gun—if it’s in their belt and they pull their coat to the
side like this to show it, that’s 21 years there, [Y]our Honor.
This situation went beyond that. As the video shows, he went in there and
he was holding the gun to one of the individuals, inches away from his chest;
another individual, about a yard away from him.”
¶ 70 Defendant’s pointing a gun directly at Ravi and the other clerk clearly created a
threat of harm much greater than the minimal threat necessary to simply commit the bare
offense. See Davis, 252 Ill. App. 3d at 814 (explaining that armed robbery may be committed by
briefly showing a gun and trial court acted properly by considering defendant’s jumping over a
store counter and pointing gun at a clerk as an aggravating factor). Indeed, Illinois courts have
repeatedly held “that a judge, when sentencing a defendant for armed robbery, may consider as
an aggravating factor that the defendant’s conduct threatened serious harm.” Id. at 815
(collecting cases). An example of such an aggravating factor would be the armed robber who
actually fires his weapon during the offense, and another example would be the armed robber
who pulls the trigger but the gun, for whatever reason, does not fire.
¶ 71 Anything and everything beyond the minimum conduct necessary for the
defendant to be found to have engaged in criminal behavior is entirely appropriate for a
sentencing court to consider. The trial court in this case recognized the additional threat
defendant’s actions caused, and its doing so was entirely appropriate.
¶ 72 3. Additional Grounds
¶ 73 We conclude the trial court properly considered defendant’s subsequent conduct
of fighting with a police officer as a threat of harm. At trial, Rizzi testified that he was
“[e]xtremely” terrified. Shortly after learning an armed robbery had occurred a short distance
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away by someone matching defendant’s description, Rizzi saw defendant reach for his
waistband. Further, Rizzi’s bulletproof vest came loose during the struggle, with the result that it
was no longer offering him any protection.
¶ 74 The trial court observed as follows:
“First of all, your conduct caused or—and threatened serious harm; not only to the
individuals in the store, where your gun was pulled and pointed at; not only the
officer you chose to fight with at the time he was detaining you; but what this
Court also believes is society in general, the entire community. When conduct—
when somebody goes into a store and pulls a gun, chooses to fight officers, not
only are those individuals threatened, but the Court believes society is threatened
as well.”
From this observation, we can infer that the court was concerned both for the specific individuals
involved and also the numerous citizens in the area who could have been harmed had the gun
gone off. This apparent concern was entirely reasonable, and the trial court acted properly by
considering the totality of defendant’s conduct during the offense.
¶ 75 4. Prior Cases
¶ 76 Defendant relies on two cases for his assertion that his conduct during the robbery
was inherent in the offense. For the reasons that follow, we decline to apply those cases.
¶ 77 In People v. Rhodes, 141 Ill. App. 3d 362, 490 N.E.2d 169 (1986), the defendant
was convicted of armed robbery when he robbed a fast-food restaurant by pointing a “small-
caliber automatic pistol at the manager and another employee.” The trial court determined the
defendant’s conduct threatened serious harm, but this court reversed, concluding, “We do not
believe the record in the present case evidences other than that the defendant committed a
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robbery using a dangerous weapon; elements present in every armed robbery [citation].” Id. at
364. No further analysis was provided.
¶ 78 In People v. Flanery, 229 Ill. App. 3d 497, 498, 594 N.E.2d 401, 404 (1992), the
defendant was convicted of armed robbery for placing a gun against the stomach of a gas station
clerk and demanding the money in the register. At sentencing, the trial court stated “ ‘if we turn
to the factors in aggravation, certainly the defendant’s conduct caused or threatened serious
harm. This was indeed, an armed robbery. The jury has found a gun was used.’ ” Id. at 502. The
Third District reversed because “the evidence presented showed nothing more than the defendant
committed a robbery using a dangerous weapon; an element present in every armed robbery,”
and noted that the trial court’s brief reasoning prevented it from determining how much weight
the court gave the factor. Id.
¶ 79 Both of these cases have been criticized for their reasoning. Davis, 252 Ill. App.
3d at 815; People v. Burge, 254 Ill. App. 3d 85, 89-90, 626 N.E.2d 343, 346-47 (1993). As we
earlier noted, courts have repeatedly held that the threat of harm is an appropriate factor to
consider in armed robbery cases. Davis, 252 Ill. App. 3d at 815 (collecting cases); People v.
Shick, 318 Ill. App. 3d 899, 909, 744 N.E.2d 858, 866-67 (2001). Unlike Flanery, the trial court
in this case gave a more detailed explanation as to why defendant threatened harm greater than
that inherent in every armed robbery—namely, he pointed a gun at the Food Mart workers and
shortly thereafter fought with a police officer. These actions are clearly above the baseline
conduct of merely displaying a firearm and demanding money. Davis, 252 Ill. App. 3d at 814.
Accordingly, the trial court did not err by considering the threat of harm in this case when
sentencing defendant.
¶ 80 C. The Restitution Order
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¶ 81 Third, defendant claims the trial court committed reversible error by failing to
indicate if the restitution was to be paid in a lump sum or installments. The State asserts
defendant waived this argument by failing to object to the PSI. However, because we agree that
the trial court was required by statute to include when and how the restitution was to be paid, we
remand the case to the trial court for the limited purpose of compliance with the requirements of
the Unified Code regarding restitution.
¶ 82 Section 5-5-6(f) of the Unified Code states that the trial court “shall determine
whether restitution shall be paid in a single payment or in installments, and shall fix a period of
time not in excess of 5 years, *** not including periods of incarceration, within which payment
of restitution is to be paid in full.” 730 ILCS 5/5-5-6(f) (West 2016). “Compliance with this
statute is mandatory.” People v. Hamilton, 198 Ill. App. 3d 108, 116, 555 N.E.2d 785, 789
(1990), rev’d in part on other grounds sub nom., People v. Williams, 149 Ill. 2d 467, 599 N.E.2d
913 (1992); see also People v. White, 146 Ill. App. 3d 998, 1004, 497 N.E.2d 888, 892 (1986).
“If the court does not specify a particular time [for the payment of restitution], the restitution
order is fatally incomplete.” In re Estate of Yucis, 382 Ill. App. 3d 1062, 1067, 890 N.E.2d 964,
969 (2008). Courts have also remanded cases when a trial court includes a time to pay but not the
manner of payment—that is, by installments or lump sum. People v. Fontana, 251 Ill. App. 3d
694, 709, 622 N.E.2d 893, 904 (1993).
¶ 83 In this case, the trial court did not indicate orally on the record or in its written
judgment (1) the date by which defendant was to pay restitution or (2) whether defendant was to
pay in a lump sum or by installment. We therefore remand the case to the trial court for the
limited purpose of compliance with section 5-5-6(f) of the Unified Code.
¶ 84 D. Ineffective Assistance of Counsel
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¶ 85 Defendant’s fourth claim of error is that his trial counsel was ineffective for
failing to object to the lack of support (either testimony or documentation) for the amount of
restitution requested in the PSI. The State responds that defense counsel’s argument in the
motion to reconsider sentence that the trial court failed to consider defendant’s willingness to pay
restitution as a mitigating factor, coupled with his failure to object to the PSI, demonstrates a trial
strategy. That is, counsel was attempting to get a lower sentence by pointing out to the court that
defendant fully accepted the amount of restitution requested.
¶ 86 On appeal, defendant asserts that no reasonable trial strategy exists for failing to
hold the State to its burden of proving the proper amount of restitution. We disagree, and, for the
reasons that follow, we conclude defense counsel was not ineffective.
¶ 87 1. The Applicable Law
¶ 88 The sixth amendment guarantees a defendant the right to effective assistance of
counsel at all critical stages of a criminal proceeding. People v. Beasley, 2017 IL App (4th)
150291, ¶ 26, 85 N.E.3d 568. “To succeed on a claim of ineffective assistance of counsel during
sentencing, a defendant must show that [(1)] counsel’s performance fell below minimal
professional standards and that [(2)] a reasonable probability exists that the defendant’s sentence
was affected.” People v. Sharp, 2015 IL App (1st) 130438, ¶ 122, 26 N.E.3d 460. Failure to
satisfy either prong negates a claim of ineffective assistance of counsel. People v. Fellers, 2016
IL App (4th) 140486, ¶ 23, 77 N.E.3d 994. When a claim of ineffective assistance of counsel was
not raised at the trial court, our review is de novo. People v. Lofton, 2015 IL App (2d) 130135,
¶ 24, 42 N.E.3d 885.
¶ 89 2. This Case
¶ 90 Defendant does not argue that the failure to support the amount of restitution in
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the PSI with corroborating evidence was plain error. And defendant acknowledges that this court
has previously held that a trial court is entitled to rely on the amount stated in the PSI in the
absence of an objection to its accuracy. Powell, 199 Ill. App. 3d at 295; People v. Hammons,
2018 IL App (4th) 160385, ¶ 57.
¶ 91 Instead, defendant claims trial counsel’s failure to object to the PSI amounted to
ineffective assistance because nothing in the PSI supports the amounts requested ($4359.92 for
the insurance company and $280.37 for the City of Bloomington) and trial testimony
contradicted it (Ravi testified insurance reimbursed the Food Mart about “$3600”). We reject
defendant’s interpretation of the record.
¶ 92 We earlier noted that defense counsel twice stated he had no objection to the
admission of the PSI. Further, counsel asked for and received a change in the amount of
presentence credit by one day. As noted by the State, counsel argued a restitution-related point in
his motion to reconsider sentence. The record shows that counsel reviewed the PSI and had no
objection to it. Without some evidence showing defense counsel acted improperly, we conclude
counsel was not ineffective.
¶ 93 Even assuming defense counsel fell below minimal professional standards,
defendant’s ineffective assistance claim still fails because he cannot demonstrate prejudice. (We
note that although the State contends this issue is better addressed on collateral review at which
additional facts can be put forth, defendant urges that “[d]eferring the determination of this issue
to collateral proceeding is unwarranted as the record here is sufficient, and the error claimed
cannot be the result of sound trial strategy.” We therefore address and reject defendant’s claims
on the merits.) Defendant does not make any argument that the amount of restitution here was
incorrect, and we are unable to find any such evidence in the record. Defendant similarly does
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not argue that the State could not have proved up the amounts requested in the PSI. Ravi’s trial
testimony was clearly an estimate, and Ravi admitted that he only helps out at the Food Mart and
does not own it. Thus, his testimony is not necessarily inconsistent with the requested amount of
restitution. Because defendant fails to demonstrate he was prejudiced by his trial counsel’s
performance, we conclude counsel was not ineffective.
¶ 94 E. Sentencing on the Petition To Revoke Probation
¶ 95 Last, defendant argues that (1) the trial court improperly sentenced him to the
maximum sentence upon revocation of probation and (2) the trial court improperly commingled
the offenses when making its sentencing decision. The State argues that the trial court properly
sentenced defendant based on his original offense and did not commingle the offenses because
the trial court imposed three separate sentences. The State contends that the court’s referring to
defendant’s “other conduct” was the two other “offenses defendant was being sentenced for at
the same time.” We agree with the State.
¶ 96 1. The Applicable Law
¶ 97 The trial court has broad discretion in imposing a sentence and the appellate court
will not overturn the trial court’s decision as to the appropriate sentence “unless the trial court
abused its discretion and the sentence was manifestly disproportionate to the nature of the case.”
People v. Thrasher, 383 Ill. App. 3d 363, 371, 890 N.E.2d 715, 722 (2008). “When a defendant
is admitted to probation and that probation is revoked, the trial court may sentence the defendant
to any sentence that would have been appropriate for the original offense.” People v. Young, 138
Ill. App. 3d 130, 134-35, 485 N.E.2d 443, 445 (1985). In People v. Witte, 317 Ill. App. 3d 959,
963, 740 N.E.2d 834, 837-38 (2000), this court explained as follows:
“Upon revocation of probation, trial courts can consider the crime that resulted in
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revocation of probation and the defendant’s conduct during the probationary
period only as evidence of the defendant’s rehabilitative potential. [Citation.]
Thus, such conduct may be considered as an aggravating factor and may lead to a
sentence more severe than that which the court would have initially imposed.
[Citation.] The new sentence, however, cannot punish the defendant for anything
other than the original underlying offense.”
¶ 98 In general,
“a sentence within the statutory range for the original offense will not be set aside
on review unless the reviewing court is strongly persuaded that the sentence
imposed after revocation of probation was in fact imposed as a penalty for the
conduct which was the basis of revocation, and not for the original offense.”
(Emphases in original.) Young, 138 Ill. App. 3d at 142.
Subsequent conduct on probation can be considered by the trial court because “[c]onduct which
leads to revocation of probation has been regarded as a ‘breach’ of the court’s trust, or as
otherwise causing the court to lose confidence in the defendant’s rehabilitative potential.” Id. at
140. In determining whether the trial court improperly imposed a sentence, the appellate court
reviews the record as a whole, not isolated statements. People v. Walker, 2012 IL App (1st)
083655, ¶ 30, 973 N.E.2d 939.
¶ 99 2. This Case
¶ 100 In September 2015, defendant pleaded guilty to threatening a public official and
was sentenced to 30 months’ probation. In September 2016, defendant was sentenced for his
subsequent offenses of armed robbery and resisting arrest, as well as on his original offense. The
trial court sentenced defendant to 30 years in prison for armed robbery and 5 years in prison for
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threatening a public official, which was the statutory maximum. 720 ILCS 5/12-9(c) (West
2014); 730 ILCS 5/5-4.5-40(a) (West 2014).
¶ 101 The trial court discussed the factors it considered for each offense in the same
proceeding and determined appropriate sentences for each offense. The court’s method is
unsurprising because both the State and defense counsel focused solely on the armed robbery
charge. Indeed, the State had to be prompted by the trial court for a recommendation on the other
charges, and defense counsel never mentioned the original offense. Additionally, the armed
robbery conviction required a minimum of 21 years in prison because of the use of a firearm, far
longer than the maximum prison term on the original offense.
¶ 102 The trial court discussed the timeline of defendant’s prior offenses, defendant’s
conduct while in jail, and the factors it considered for sentencing each offense. The trial court’s
commentary of defendant’s conduct while on probation was relevant to the trial court’s
consideration of defendant’s rehabilitative potential to determine appropriate sentences.
Specifically, the new criminal behavior defendant engaged in reflects adversely on his
rehabilitative potential, which is a factor the trial court may appropriately consider. Young, 138
Ill. App. 3d at 135. Accordingly, the trial court’s discussion of defendant’s background, conduct
in the jail, and the conduct that led to the revocation of probation was appropriate.
¶ 103 Based on this record, we conclude that (1) the trial court did not err in considering
defendant’s conduct while on probation and (2) the five-year sentence was not an abuse of
discretion.
¶ 104 III. CONCLUSION
¶ 105 For the reasons stated, we remand the case to the trial court for the limited
purpose of conducting a hearing to determine when restitution is to be paid and the manner in
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which it is to be paid. We affirm the trial court’s judgment in all other respects.
¶ 106 Affirmed and remanded with directions.
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