People v. Owsley ( 2013 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
People v. Owsley, 2013 IL App (1st) 111975
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption DONALD OWSLEY, Defendant-Appellant.
District & No. First District, Second Division
Docket No. 1-11-1975
Filed September 10, 2013
Rehearing denied October 23, 2013
Held The evidence establishing that defendant engaged in deception to obtain
(Note: This syllabus control over the victim’s property, including real estate and bank accounts
constitutes no part of while intending to permanently deprive the victim of the use, benefit, and
the opinion of the court possession of that property, and that he possessed with the intent to issue
but has been prepared a quitclaim deed signed by the victim that was capable of defrauding
by the Reporter of another was sufficient to sustain defendant’s convictions for the financial
Decisions for the exploitation of an elderly person and one count of forgery, and the
convenience of the sentence of 3 years’ probation and a $36,000 fine was not
reader.)
an abuse of discretion.
Decision Under Appeal from the Circuit Court of Cook County, No. 05-CR-2330; the
Review Hon. Timothy Joseph Joyce, Judge, presiding.
Judgment Affirmed.
Counsel on Jed Stone and Eric Shah, both of Stone & Associates, Ltd., of Waukegan,
Appeal for appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, Yvette
Loizon, and Rachel Mabbott, Assistant State’s Attorneys, of counsel), for
the People.
Panel JUSTICE SIMON delivered the judgment of the court, with opinion.
Presiding Justice Quinn and Justice Harris concurred in the judgment and
opinion.
OPINION
¶1 Following a bench trial, defendant Donald Owsley was found guilty of five counts of
financial exploitation of an elderly person and one count of forgery and sentenced to three
years’ probation and a $36,000 fine. On appeal, defendant contends that the State failed to
prove him guilty beyond a reasonable doubt of financial exploitation of an elderly person or
forgery and that the fine is excessive. For the reasons that follow, we affirm.
¶2 BACKGROUND
¶3 Defendant was charged with six counts of financial exploitation of an elderly person in
that he stood in a position of trust and confidence with Theodore Hoellen and knowingly and
by deception obtained control over the Theodore Hoellen Trust dated January 31, 2002, the
parcel of land at 5845 North Kenton Avenue in Chicago, a certificate of deposit account from
Liberty Bank, a savings account from Harris Bank, a certificate of deposit account from
Banco Popular, and Hoellen’s retirement plan benefits with the intent to permanently deprive
Hoellen of the use, benefit, or possession of those properties. Defendant was also charged
with forgery and eight counts of official misconduct for committing the crimes of financial
exploitation of an elderly person and forgery in his official capacity as an employee of the
Chicago police department and violating the rules and regulations of the Chicago police
department.
¶4 At trial, John Hoellen, Theodore Hoellen’s nephew, testified that Theodore was born on
December 30, 1913, and lived by himself in a house at 5845 North Kenton Avenue. John
lived in Chicago until 1995, when he moved to Washington, D.C., and thereafter visited
Theodore every fall when he returned to Chicago for homecoming weekend at Northwestern
University. John called Theodore to check in on him once a month, but was only able to get
in touch with him six to eight times a year. John formed some concerns about Theodore’s
faculties during his visits in 1999, 2000, and 2001 because Theodore seemed increasingly
confused.
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¶5 Theodore first mentioned defendant to John during John’s visit in 2002. Theodore, who
seemed agitated, also spoke of some documents he had signed and John and Theodore
searched for the documents, but could not find them. While John was visiting, defendant let
himself inside Theodore’s house with a set of keys, and he and John exchanged information.
Theodore asked defendant where the documents he had signed were located, and defendant
responded that he did not know. John returned to Chicago in December 2002 and
encountered defendant when he arrived at Theodore’s house. John asked defendant about the
documents Theodore had mentioned during the previous visit, and defendant told John that
he would have to ask Theodore about them. Theodore told John that he did not know what
defendant was talking about. John subsequently contacted the Office of the Public Guardian,
which provided him with a quitclaim deed for Theodore’s property and a general power of
attorney regarding Theodore.
¶6 John later returned to Chicago, and on February 10, 2003, he accompanied Theodore to
Harris Bank, where they removed defendant as a beneficiary on Theodore’s checking account
and executed a revocation of power of attorney, a revocation of will, a revocation of trust,
and a trustee deed. On February 11, 2003, John and Theodore went to Liberty Bank and
closed an account under which defendant had been named as a beneficiary and opened a new
account under Theodore’s name. On February 19, 2003, John learned that an order of
protection had been sought against him by Theodore. John returned to Chicago, and on
February 28, 2003, the day on which he was to appear in court, John picked up Theodore,
who did not know about the court date, and brought him to the hearing. As a result of the
hearing, the court ordered an evaluation of Theodore, and on March 31, 2003, John learned
that Theodore had been taken to the hospital. Theodore was subsequently transferred to a
nursing home, and he died on July 12, 2006.
¶7 Peter Schmiegel, the deputy of the adult guardianship division of the office of the Cook
County public guardian, testified that the division conducted an investigation of Theodore
and determined that he was a disabled adult, that the public guardian was named as the
guardian of Theodore’s person and estate and filed a citation to recover assets against
defendant on his behalf, and that Schmiegel deposed defendant and cross-examined him at
trial as part of that proceeding. Schmiegel then testified regarding the testimony provided by
defendant at the deposition and trial. Defendant testified that he first met Theodore in the fall
of 1999 while responding to a call from Theodore’s neighbor’s house and that he visited
Theodore with increasing regularity as they became friends. In early 2001, Theodore told
defendant that he wanted to convey his house to defendant by a quitclaim deed and on
February 10, 2001, defendant and Theodore executed a deed granting defendant a joint
tenancy interest in Theodore’s house in the presence of various witnesses. Defendant did not
have the deed notarized or recorded until August 2003 because Theodore told him not to
record it and to just hold on to it. On April 17, 2001, defendant and Theodore executed a
document granting defendant a power of attorney for health care for Theodore and on May
25, 2001, they executed a document granting defendant a general power of attorney.
Defendant and Theodore executed a will and trust on January 31, 2002, after having met with
Warren Dulski, an attorney, because Theodore wanted defendant to be the recipient of his
property. By the end of 2001, defendant, consistent with Theodore’s wishes, had been placed
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on all of Theodore’s accounts at Liberty Bank, Harris Bank, and Banco Popular. Defendant
sought an order of protection against John Hoellen after he was removed from the Harris
Bank account on February 10, 2003, and filled out a petition for such an order, which
Theodore then signed. Defendant further testified that on August 1, 2003, he had Alvero
Guerrero, a notary public, notarize the quitclaim deed from February 10, 2001, and the
accompanying statement by grantor and grantee, which was signed by defendant and
Guerrero.
¶8 Patricia Walsh testified that she worked at a restaurant at which Theodore had eaten
about twice a day. Walsh waited on Theodore almost every day. Beginning in 1998, she
noticed that Theodore sometimes talked to himself or had conversations with people that did
not exist and did not always change his clothes. Beginning in 2001, Walsh noticed that
defendant joined Theodore for meals a couple times a week and that Theodore’s demeanor
was different when he was with defendant from when he was at the restaurant by himself
because he sometimes seemed agitated when he was with defendant. Walsh also overheard
defendant telling Theodore to sign some papers and saying “just sign the papers, what
difference does it make?”
¶9 Sara Ausmann testified that she lived next door to Theodore until 2003 and that between
1995 and 1999, while she was in high school, she noticed that Theodore would walk up and
down the streets and talk to himself and sometimes cuss at the trees and birds. In the summer
of 1999, Ausmann found Theodore in her kitchen, and Theodore believed that she was an
intruder in his house and took a swing at her. Ausmann called 911 while Theodore exited her
house, and defendant and another police officer arrived a short time later. Ausmann told
defendant what had happened, and he and the other officer went to Theodore’s house.
Defendant returned about a half hour later and told Ausmann that Theodore was likely
confused and that the officers were going to take him to the hospital. A couple weeks later,
defendant started visiting Theodore at his house a couple times a week, and after a few
months, defendant would pick Theodore up and take him somewhere.
¶ 10 Warren Dulski testified that in the spring of 2001, defendant arrived at his office and said
that he had a friend who needed help planning his estate, and that on July 28, 2001, he met
with defendant and Theodore at his office. Defendant brought the deed to Theodore’s house
to the meeting, and Dulski prepared a will, a trust, and a quitclaim deed for defendant and
Theodore. While Dulski’s secretary prepared a deed in trust granting the house from
Theodore to defendant, Dulski met with Theodore in private to go over the documents.
Theodore declined to sign the documents, saying he needed time to think about it, and Dulski
provided Theodore with a copy of those documents. In January 2002, Dulski received a
phone call from defendant, who said that Theodore wanted to sign the documents at the end
of the month but that he did not want to do it at Dulski’s office because Dulski was Polish.
Dulski allowed defendant to pick up the documents from his office, but told defendant that
he would not assume any responsibility for them. Dulski explained that this was the only
time he allowed such documents to be executed while he was not present and that he only
allowed it to occur this one time because defendant was a police officer and seemed
trustworthy. Defendant picked up the documents from Dulski’s office a few days before
January 31, 2002, and then returned them a few days later after they had been signed and
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notarized. Dulski took the quitclaim deed to the recorder of deeds and had it recorded, then
returned it to defendant. On cross-examination, Dulski stated that he did not doubt that
Theodore understood the terms of the documents he had prepared and that the documents
were consistent with what Theodore had said he wanted done.
¶ 11 Alma Ortiz, a bank manager at Harris Bank, testified that Theodore and John Hoellen
came to her bank on February 10, 2003, and executed a revocation of power of attorney.
Prior to doing so, Ortiz told them that she needed to speak with Theodore alone, but
Theodore said that John could be present for any necessary discussions. Less than a week
later, defendant came to the bank with Theodore and requested that his power of attorney be
restored and handed Ortiz a document to that effect, and Ortiz responded that she could not
accept that document at that time. Ortiz subsequently met with Theodore by himself and
Theodore explained that he wanted to be the only person in control of his account. A few
days later, Ortiz again met with defendant and Theodore, at which time they each spoke
privately over the phone with a representative of the bank’s account risk control department,
and Ortiz did not make any changes to Theodore’s account following that meeting. Ortiz also
testified that the statements for Theodore’s accounts showed that defendant became a
beneficiary of his checking account in May 2001 and became a beneficiary of his savings
account in October 2002. On cross-examination, Ortiz stated that if Theodore was not
competent to change the beneficiaries on his accounts, he would not have been allowed to
do so.
¶ 12 Chicago police officer Nancy Foley testified that on the morning of March 31, 2003, she
responded to a home invasion call on the 5800 block of North Kenton Avenue and
encountered Theodore and a neighbor of his when she arrived. Theodore seemed “confused
and out of touch with reality” and stated that while he knew there were a few offenders, he
could not see them because it was raining and snowing very heavily inside his house. There
was no evidence that the house had been broken into, and Theodore was taken to a hospital.
Defendant arrived at the scene while Officer Foley was present, and she testified that it was
clear that Theodore knew defendant because he called him by his first name. On cross-
examination, Officer Foley stated that defendant drove Theodore to the hospital in his car
because Theodore did not want to be taken by an ambulance.
¶ 13 Dr. Robert Hanlon, a board-certified clinical neuropsychologist, testified that he
evaluated Theodore on April 8, 2003, and concluded that Theodore suffered from a severe
neuropsychological impairment and a moderate to severe functional disability and showed
signs of mixed dementia consisting of features of Alzheimer’s disease and vascular dementia.
Dr. Hanlon opined to a reasonable degree of neuropsychological certainty that Theodore was
well into the middle stages of Alzheimer’s disease at the time of the examination and had
been in the middle stages of dementia, and particularly Alzheimer’s disease, for at least five
years. Dr. Hanlon also opined that in the five years prior to the examination, Theodore was
not capable of handling his finances or safely living independently.
¶ 14 Dr. Theodore Wright, a board-certified family practitioner, testified for the defense that
he regularly treated Theodore beginning in February 2001 after defendant had arranged for
an appointment and that defendant accompanied Theodore to the majority of his
appointments. Dr. Wright did not observe any evidence of delirium or disorientation and
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testified that Theodore seemed well-oriented and responsive. During an appointment on
February 13, 2003, Dr. Wright suggested that Theodore be hospitalized for testing due to an
irregularity in his heart rate, and Theodore responded that he did not want to be hospitalized
and that if he did eventually need hospital care, he wanted defendant to be notified, but not
John Hoellen. On cross-examination, Dr. Wright stated that he did not test Theodore
regarding his orientation and that he did not disagree with Dr. Hanlon’s opinion that
Theodore was suffering from dementia at the time Dr. Wright was treating him.
¶ 15 Dr. Sanford Finkel, a board-certified geriatric psychiatrist, testified for the defense that
he reviewed a number of documents regarding Theodore’s condition and opined to a
reasonable degree of psychiatric certainty that Theodore had sufficient capacity to execute
his last will and testament, sign the powers of attorney, and assign a beneficial interest in his
bank accounts. Dr. Finkel also opined that Dr. Hanlon’s diagnosis that Theodore was
suffering from the middle stages of Alzheimer’s disease in April 2003 was not consistent
with the records and the medical literature in the field. On cross-examination, Dr. Finkel
stated that Theodore had developed a mild cognitive impairment in the early 2000s and
developed early stage Alzheimer’s disease by early 2003.
¶ 16 Jean Sullivan Gutrich, a funeral director and embalmer, testified for the defense that she
met with Theodore and defendant in December 2001 to discuss Theodore’s funeral
arrangements. Gutrich also testified that Theodore did not seem confused during the
appointment and that she did not have any concerns about his capacity to make his own
arrangements at that time.
¶ 17 Based on this evidence, the trial court found defendant guilty of the counts of financial
exploitation of an elderly person relating to the trust, the property on Kenton Avenue, and
the accounts at Liberty Bank, Harris Bank, and Banco Popular. The court also found
defendant guilty of forgery, but found him not guilty of all the other crimes of which he was
charged. In doing so, the court determined that the State proved beyond a reasonable doubt
that defendant obtained control over Theodore’s property with the intent to permanently
deprive him of the use, benefit, or possession of that property because the evidence showed
that defendant obtained a beneficial interest in Theodore’s bank accounts and trust and that
defendant and Theodore executed a quitclaim deed conveying Theodore’s house to
defendant. The court also determined that defendant used deception to obtain control over
Theodore’s property because the evidence showed that defendant was not telling the truth
when he told Theodore and John in fall 2002 that he did not know where the documents
Theodore had signed were located; was not telling the truth when he told Dulski that
Theodore did not want to sign the documents Dulski prepared at Dulski’s office because he
was Polish; concealed the quitclaim deed executed on February 10, 2001, granting him a
joint tenancy in Theodore’s house by failing to have it recorded or notarized until August
2003; and recorded that deed in August 2003 despite knowing that he did not have the
authority to do so.
¶ 18 Following a sentencing hearing, the court entered an order sentencing defendant to
concurrent terms of three years’ probation and separate fines of $18,000 for financial
exploitation of an elderly person and forgery. In reaching that sentence, the court noted that
defendant did not ultimately receive any profits from the crimes, that Theodore did not suffer
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any bodily harm as a result of defendant’s actions, and that defendant’s status as a police
officer was not an aggravating factor. The court stated that it considered the long-term and
well-planned nature of the offenses as an aggravating factor and the various letters in support
of defendant as factors in mitigation. As to the fine, the court reviewed the information
regarding defendant’s income and found that he had the financial wherewithal to pay the total
fine of $36,000 in monthly installments of $1,000.
¶ 19 ANALYSIS
¶ 20 I. Sufficiency of the Evidence
¶ 21 Defendant contends that the State failed to prove him guilty beyond a reasonable doubt
of financial exploitation of an elderly person or forgery. A defendant’s challenge of the
sufficiency of the evidence to sustain his conviction is reviewed to determine whether, after
viewing the evidence in the light most favorable to the State, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt. People v. Jordan,
218 Ill. 2d 255, 269-70 (2006). This standard recognizes the responsibility of the trier of fact
to resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences
therefrom. People v. Siguenza-Brito, 235 Ill. 2d 213, 224 (2009). This court will only reverse
a conviction when the evidence is so unreasonable, improbable, or unsatisfactory as to justify
a reasonable doubt of the defendant’s guilt. People v. Ross, 229 Ill. 2d 255, 272 (2008).
¶ 22 A. Financial exploitation of an elderly person
¶ 23 A person commits the crime of financial exploitation of an elderly person when he stands
in a position of trust or confidence with the elderly person and he knowingly and by
deception or intimidation obtains control over the property of the elderly person with the
intent to permanently deprive the elderly person of the use, benefit, or possession of his
property. 720 ILCS 5/16-1.3(a) (West 2000). The parties do not dispute that the State proved
beyond a reasonable doubt that Theodore was an elderly person or that defendant stood in
a position of trust and confidence in relation to him.
¶ 24 1. Deception
¶ 25 Defendant asserts that the State failed to sustain its burden because it did not prove that
he engaged in any acts of deception or intimidation in regard to Theodore. The State
responds that the evidence established that defendant used deception to obtain control over
Theodore’s property. Under the general definition of the term “deception” provided in the
Criminal Code of 1961 (720 ILCS 5/15-4 (West 2000)), a person has engaged in deception
if he has knowingly created or confirmed another’s impression which is false and which the
offender does not believe to be true or failed to correct a false impression which the offender
has previously created or confirmed. Regarding the offense of financial exploitation of an
elderly person, the term “deception” also refers to a misrepresentation or concealment of
material fact relating to the terms of a contract or agreement entered into with an elderly
person or the condition of a property involved in such a contract or agreement and the use
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or employment of a misrepresentation, false pretense, or false promise to induce, encourage,
or solicit an elderly person to enter into a contract or agreement. 720 ILCS 5/16-1.3(b)(4)
(West 2000).
¶ 26 Viewed in the light most favorable to the State, the evidence shows that defendant did
not tell the truth when he told John Hoellen in fall 2002 that he did not know where the
documents Theodore had signed were located, as Schmiegel testified that defendant admitted
that he was in possession of the February 10, 2001, quitclaim deed from that date until he had
it recorded and notarized in August 2003 and Dulski testified that he returned the January 31,
2002, quitclaim deed to defendant after it had been recorded. The evidence also supports the
inference that defendant did not tell the truth when he told Dulski that Theodore did not want
to sign the documents prepared by Dulski in his office because Dulski was Polish, as
Theodore likely would not have visited Dulski’s office and allowed him to prepare those
documents in the first place if he harbored such a prejudice. The evidence further shows that
defendant concealed the existence of the February 10, 2001, quitclaim deed by failing to have
it recorded or notarized until August 2003. As a rational trier of fact could have determined
that defendant engaged in those deceptive acts in the furtherance of a plan to obtain control
over Theodore’s property, the State presented sufficient evidence to establish the element of
deception.
¶ 27 In addition, the testimony of Ausmann, Walsh, and Dr. Hanlon, viewed in the light most
favorable to the State, shows that Theodore suffered from a mental impairment and
functional disability and was not capable of handling his finances during the time period at
issue. The State also presented evidence showing that Theodore’s mental vulnerability was
readily apparent and that defendant knew of Theodore’s condition from the time he met him,
as he first met Theodore in response to Ausmann’s call regarding Theodore’s uninvited
presence in her house. The evidence further shows that despite being aware of Theodore’s
condition, defendant convinced Theodore to execute various documents granting him a
beneficial interest in Theodore’s property. As such, a rational trier of fact could have
determined that defendant engaged in deceptive acts in obtaining control over Theodore’s
property by holding Theodore out to be competent to transfer interests in that property
despite knowing that he was not competent to do so.
¶ 28 2. Permanent deprivation
¶ 29 Defendant asserts that the State did not prove that he intended to permanently deprive
Theodore of the use, benefit, or possession of his property because the evidence showed that
he did not take any money from Theodore’s bank accounts and that he would not have
received any interest in Theodore’s property until after Theodore had died. To prove a
defendant guilty of financial exploitation of an elderly person, the State must establish that
the defendant obtained control over the property of an elderly person “with the intent to
permanently deprive the elderly person *** of the use, benefit, or possession of his or her
property.” 720 ILCS 5/16-1.3(a) (West 2000). In its finding of guilt, the court stated that the
State had satisfied this element because the term “permanent deprivation” was defined, in
part, as meaning to “[s]ell, give, pledge, or otherwise transfer any interest in the property or
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subject it to the claim of a person other than the owner” (720 ILCS 5/15-3(d) (West 2000))
and the evidence showed that defendant transferred interests in Theodore’s property to
himself.
¶ 30 Initially, we agree with defendant that the evidence does not show that he intended to
deprive Theodore of the use or possession of his property, temporarily or permanently,
because defendant would not have gained possession of Theodore’s properties until after he
had died and there is no evidence showing that defendant interfered with Theodore’s use of
his properties in any way. As such, the issue in this case is whether defendant intended to
permanently deprive Theodore of the benefit of his properties.
¶ 31 It is a fundamental maxim of property law that “the owner of a property interest may
dispose of all or part of that interest as he sees fit.” Phillips v. Washington Legal Foundation,
524 U.S. 156, 167 (1998). While the absolute right to dispose of property as one sees fit may
be tempered upon the owner’s death by the statutory right of a surviving spouse (In re Estate
of Mocny, 257 Ill. App. 3d 291, 295 (1993)), one of the benefits of property ownership is the
largely unencumbered right to determine the manner in which that property will be disposed
of upon one’s death. In this case, the State presented evidence showing that defendant
obtained control over interests in Theodore’s properties that would have vested upon
Theodore’s death. As such, a rational trier of fact could have found that defendant intended
to permanently deprive Theodore of a benefit of his properties by interfering with his right
to determine the manner in which they would be disposed of upon his death.
¶ 32 While the parties discuss the issue of whether the State presented sufficient evidence to
prove beyond a reasonable doubt that defendant obtained control over Theodore’s property
in the State’s appellee’s brief and defendant’s reply brief, that issue was not raised by
defendant in his appellant’s brief and, as such, any claim to that effect has been forfeited. Ill.
S. Ct. R. 341(h)(7) (eff. July 1, 2008). Moreover, a defendant “obtains control” over a
property when he transfers an interest in that property to himself (720 ILCS 5/15-7, 15-8
(West 2000)), and the State presented evidence showing that defendant obtained control over
Theodore’s properties by engineering the transfer of beneficial interests in those properties
to himself. Accordingly, we conclude that the State presented sufficient evidence to prove
defendant guilty beyond a reasonable doubt of the offense of financial exploitation of an
elderly person.
¶ 33 B. Forgery
¶ 34 A person commits the crime of forgery when, with intent to defraud, he issues or delivers
any document apparently capable of defrauding another such that it purports to have been
made by another or at another time, or with different provisions, or by authority of one who
did not give such authority while knowing it has been made or altered for that purpose. 720
ILCS 5/17-3(a)(2) (West 2002). In this case, defendant was charged with having committed
the offense of forgery in that he allegedly possessed with intent to issue a quitclaim deed
signed by Theodore on February 10, 2001, that was capable of defrauding another because
it purported to have been made by the authority of Theodore while defendant knew that it
was not made by the authority of Theodore.
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¶ 35 The record shows that on August 1, 2003, defendant signed the statement by grantor and
grantee associated with the February 10, 2001, quitclaim deed and had that document
notarized despite having learned earlier that year that his power of attorney for Theodore had
been revoked. Defendant has not included in the appellate record the quitclaim deed and
accompanying statement of grantor and grantee, which was admitted into evidence, and it
is not clear from the report of trial proceedings whether defendant signed the statement
merely as a grantee or also as an agent of the grantor. As defendant bears the burden of
providing this court with a complete record sufficient to support his claims of error and any
doubts arising from the incompleteness of the record will be resolved against him (People
v. Lopez, 229 Ill. 2d 322, 344 (2008)), we will presume that defendant signed the statement
both as a grantee and as an agent of the grantor, Theodore. As such, we conclude that a
rational trier of fact could have found that defendant committed forgery when he recorded
the February 10, 2001, quitclaim deed and statement by grantor and grantee in August 2003
despite knowing that the statement by grantor and grantee was made without the authority
of Theodore and that the State presented sufficient evidence to prove defendant guilty of
forgery beyond a reasonable doubt.
¶ 36 II. Excessive Sentence
¶ 37 Defendant contends that the $36,000 fine imposed upon him is excessive and that this
court should modify his sentence by reducing the size of the fine. Defendant does not dispute
that the fine falls within the permissible statutory range, but asserts that it is excessive
because he did not receive any money from Theodore or his estate and a punitive damages
award of $50,000 had already been entered against him in a related civil case.
¶ 38 When the sentence imposed falls within the statutory range permissible for the offense
of which the defendant is convicted, a reviewing court may disturb that sentence only if the
trial court has abused its discretion. People v. Jones, 168 Ill. 2d 367, 373-74 (1995). A
sentence will be deemed excessive and the result of an abuse of discretion if it is greatly at
variance with the spirit and purpose of the law or manifestly disproportionate to the nature
of the offense. People v. Stacey, 193 Ill. 2d 203, 210 (2000).
¶ 39 It is the province of the trial court to balance factors in aggravation and mitigation and
make a reasoned decision as to the appropriate punishment (People v. Streit, 142 Ill. 2d 13,
21 (1991)), and it is not our prerogative to reweigh these factors and independently decide
that the sentence is excessive (People v. Alexander, 239 Ill. 2d 205, 214-15 (2010)). The
record shows that the trial court considered proper aggravating and mitigating factors in
sentencing defendant, as the court considered the well-planned nature of the offenses,
defendant’s lack of profit from the crimes, the lack of injury to Theodore, and the letters in
support of defendant in deciding his sentence. Regarding the size of the fine, the court
reviewed information regarding defendant’s income and determined that defendant had the
financial wherewithal to pay the $36,000 fine in $1,000 monthly installments. Under these
circumstances, we conclude that the trial court did not abuse its discretion by imposing a
total fine of $36,000.
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¶ 40 CONCLUSION
¶ 41 Accordingly, we affirm the judgment of the circuit court of Cook County.
¶ 42 Affirmed.
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