People v. Gabriel ( 2022 )

2022 IL App (1st) 201170-UOrder filed: June 30, 2022
FIRST DISTRICT
FOURTH DIVISION
No. 1-20-1170
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 02 CR 30355
)
ADRIAN GABRIEL, ) Honorable
) Stanley J. Sacks,
Defendant-Appellant. ) Judge, presiding.
______________________________________________________________________________
JUSTICE ROCHFORD delivered the judgment of the court.
Presiding Justice Reyes and Justice Martin concurred in the judgment.
ORDER
¶1 Held: Defendant’s aggregate 39-year sentence is affirmed, where he failed to show that
the circuit court did not consider the relevant sentencing factors contained in section
5-4.5-105 of the Unified Code of Corrections.
¶2 Defendant-appellant, Adrian Gabriel, appeals from the aggregate 39-year sentence which
he received upon resentencing for multiple aggravated criminal assault convictions defendant
received for offenses he committed when he was 15 years old. On appeal, defendant contends that
the circuit court failed to consider all the relevant sentencing factors contained in section 5-4.5-
105 of the Unified Code of Corrections. 730 ILCS 5/5-4.5-105 (West 2020). For the following
reasons, we affirm.
No. 1-20-1170
¶3 The procedural history of this matter is extensive, and we therefore restate only those facts
necessary for our resolution of this appeal. In December 2002, defendant and a codefendant were
charged by indictment with multiple counts of aggravated criminal sexual assault, armed robbery,
and aggravated kidnapping, as well as a single count alleging the commission of a hate crime. Each
count involved an incident allegedly occurring on or about November 19, 2002. A bench trial on
those charges was held in 2004.
¶4 At trial, the evidence established that defendant was 15 years old on November 19, 2002,
when he and others forced two victims to enter a garage where the two victims were forced to
perform various sex acts. When defendant discovered that one of the victims, C.B., was a
transgender individual, C.B. was harassed and threatened, as well as further physically and
sexually assaulted. Defendant stole money from C.B. before she was able to escape and call the
police. Defendant was found guilty of six counts of aggravated criminal sexual assault, aggravated
kidnapping, and committing a hate crime.
¶5 Defendant was then sentenced to consecutive terms of 8 years in prison on each of the 6
aggravated criminal sexual assault counts, as well as concurrent sentences of 15 years’
imprisonment for one count of aggravated kidnapping and 3 years’ imprisonment for one count of
committing a hate crime. On direct appeal, this court vacated defendant’s conviction for
aggravated kidnapping on one-act, one-crime principles and amended the mittimus to reflect the
proper presentence credit. People v. Gabriel, 1-04-2385 (2007) (unpublished order under Illinois
Supreme Court Rule 23).
¶6 On February 29, 2008, defendant filed an initial postconviction petition under the Post-
Conviction Hearing Act. 725 ILCS 5/122-1 et seq. (West 2008). After that petition was summarily
dismissed by the circuit court, this court affirmed the dismissal as the record on appeal was
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No. 1-20-1170
incomplete and insufficient to allow for appellate review. People v. Gabriel, 2011 IL App (1st)
081531-U.
¶7 On December 21, 2017, defendant filed a motion in the circuit court seeking leave to file a
successive postconviction petition asserting—inter alia—that his “sentence should be vacated and
remanded for a new sentencing hearing which takes into account all of the factors mandated by
law which concern his youth at the time of the offense.” The circuit court denied this motion, and
on appeal from that order this court granted defendant’s motion for summary disposition and
entered an order remanding this matter to the circuit court “with instructions to vacate
[defendant’s] sentence and to re-sentence [defendant] according to the holding in People v. Buffer,
2019 IL 122327.” People v. Gabriel, 1-18-1805 (June 7, 2019).
¶8 Upon remand, the circuit court entered an order vacating defendant’s prior sentence,
obtained an updated presentence investigation report, and reviewed a psychiatric report on
defendant that was contained in the court file. The circuit court also recognized that it was to
resentence defendant on the six aggravated criminal sexual assault convictions pursuant to the
decision in Buffer, 2019 IL 122327, ¶¶ 40-42, in which our supreme court held that any sentence
of over 40 years’ imprisonment is a de facto life sentence that requires a sentencing court to
consider a minor defendant’s youth and attendant characteristics. The circuit court then confirmed
with the State and defense counsel that—if the facts warranted it and the relevant factors were
found to be present—the court could potentially resentence defendant to a de facto life sentence
of more than 40 years’ imprisonment. Of note, neither of the parties nor the circuit court ever
specifically addressed the appropriate sentence for the hate crime count, with the circuit court
specifically indicating its belief that only the six aggravated criminal sexual assault convictions
were “before me.”
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No. 1-20-1170
¶9 In aggravation, the State read a victim impact statement from C.B. into the record and asked
the circuit court to consider the testimony and evidence introduced at the original sentencing
hearing. The State also noted that defendant had two prior juvenile adjudications of delinquency
for residential burglary and ethnic intimidation, with the intimidation adjudication involving an
incident in which defendant stabbed a man after he “made a pass” at one of defendant’s male
friends. Noting that the minimum sentence for the 6 counts of aggravated criminal sexual assault
would amount to a total of 36-years’ imprisonment, and that anything over 40 years’ imprisonment
would amount to a de facto life sentence, the State asked for a sentence of 40 years’ imprisonment
considering: (1) “the extreme violence, extreme brutality, multiple sexual assaults that were
committed,” and (2) the fact that the original sentencing judge found that there was a “chance for
his rehabilitation” considering defendant’s youth.
¶ 10 In mitigation, defense counsel commenced by stressing that “sentencing has changed since
2002” and decisions such as Buffer require the court to “take into account my client’s age at the
time.” Defense counsel then noted that while defendant’s actions in this case were “horrendous,”
defendant was only 15 years old when he committed these crimes. Defendant also had a troubled
childhood, where his father died when defendant was 7 years old, his mother and stepfather were
addicted to drugs, he was kicked out of the family home on many occasions, he was the victim of
sexual abuse himself, and defendant was ultimately made a ward of the court. Noting that juveniles
lack maturity and are susceptible to negative influences, defense counsel also noted that juveniles
are capable of change. Defendant had demonstrated such positive change while incarcerated, by
having only minor infractions and by completing various educational programs, including earning
his GED. After defendant made a statement in allocution in which he took responsibility for his
actions and expressed remorse, defense counsel asked the circuit court to impose a minimum
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No. 1-20-1170
aggregate sentence of 36 years’ imprisonment considering all the relevant factors, most
importantly the fact that defendant was only 15 years old at the time he committed these crimes.
¶ 11 In announcing its sentence, the circuit court began by noting that at the original sentencing
hearing defendant apologized to his mother but did not apologize to C.B. The court also
highlighted defendant’s two juvenile adjudications and defendant’s “horrible” actions in this case,
in which “[e]verything you can possibly do in a sexual context, he did it to [C.B.].” The court
acknowledged defendant’s troubled past, including his prior juvenile treatment for “explosive
disorder,” as well as the fact that defendant “has done a lot of good things while he was in custody.”
¶ 12 The circuit court then rejected defendant’s request for a minimum sentence, while also
finding that “based on what I heard today” 40 years’ imprisonment would be the “maximum.”
Defendant was then sentenced to 6.5 years’ imprisonment on each of the 6 aggravated criminal
assault convictions, for a total aggregate sentence of 39 years’ imprisonment. The circuit court
noted that with sentencing credit defendant would “still be a young man *** less than 50 years
old” when he was released from prison, and encouraged defendant to continue his education in
prison and “hopefully change your ways once you get out.” Again, the hate crime count was never
specifically addressed, and the sentencing order only contains sentences for the six aggravated
criminal sexual assault convictions.
¶ 13 Defendant timely appealed. On appeal, defendant contends that this matter must be
remanded for resentencing due to the circuit court’s failure to expressly consider several of the
factors contained in section 5-4.5-105 of the Unified Code of Corrections. 730 ILCS 5/5-4.5-105
(West 2020). Before addressing the merits of that argument, however, we briefly discuss and
clarify this court’s jurisdiction over this matter, considering the fact that defendant was not
resentenced on the hate crime count upon remand.
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No. 1-20-1170
¶ 14 Our jurisdiction extends only to “final judgments.” Ill. Const. 1970, art. VI, § 6. And, as
our supreme court has explained, “it is axiomatic that there is no final judgment in a criminal case
until the imposition of sentence, and, in the absence of a final judgment, an appeal cannot be
entertained.” People v. Flores, 128 Ill. 2d 66, 95 (1989). Where a defendant is found guilty of
multiple offenses, but sentences are not imposed for each offense, an appellate court only has
jurisdiction to address those convictions for which sentences were imposed and lacks jurisdiction
to consider “unsentenced convictions.” People v. Relerford, 2017 IL 121094, ¶ 75.
¶ 15 Here, when the circuit court vacated defendant’s prior sentences pursuant to our remand
order it did so in toto. This left defendant unsentenced for the six aggravated criminal sexual assault
counts and single hate crime count for which he was found guilty, excepting only the aggravated
kidnapping conviction that was previously vacated by this court on direct appeal. However,
defendant was never resentenced for the hate crime count upon remand and therefore no final order
with respect to that offense has been entered. We therefore only have jurisdiction to consider the
six aggravated criminal sexual assault counts for which defendant received sentences.
¶ 16 Under the Illinois Constitution, a trial court shall impose a sentence that reflects both “the
seriousness of the offense” and “the objective of restoring the offender to useful citizenship.” Ill.
Const. 1970, art. I, § 11; People v. McWilliams, 2015 IL App (1st) 130913, ¶ 27. “[T]he trial court
has broad discretionary powers in imposing a sentence.” People v. Stacey, 193 Ill. 2d 203, 209
(2000). The trial court receives “substantial deference” on sentencing decisions because the court,
having directly observed the defendant and the proceedings, is in the superior position to weigh
factors including “the defendant’s credibility, demeanor, moral character, mentality, environment,
habits, and age.” People v. Snyder, 2011 IL 111382, ¶ 36.
¶ 17 A sentence within statutory guidelines is presumed proper (People v. Knox, 2014 IL App
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No. 1-20-1170
(1st) 120349, ¶ 46) and will only be disturbed where there is an abuse of discretion (People v.
Jones, 168 Ill. 2d 367, 373-74 (1995)). An abuse of discretion exists where a sentence within
statutory limits is “greatly at variance with the spirit and purpose of the law, or manifestly
disproportionate to the nature of the offense.” Stacey, 193 Ill. 2d at 210. In reviewing a defendant’s
sentence, this court “must not substitute its judgment for that of the trial court merely because it
would have weighed [the] factors differently.” (Internal quotation marks omitted.) People v.
Alexander, 239 Ill. 2d 205, 213 (2010). Despite defendant’s contention on appeal to the contrary,
we apply an abuse of discretion standard to his arguments regarding the circuit court’s purported
failure to properly apply section 5-4.5-105. People v. Kindle, 2021 IL App (1st) 190484, ¶¶ 65-67;
People v. Villalobos, 2020 IL App (1st) 171512, ¶¶ 71-73.
¶ 18 Furthermore, a court is “not required to recite or assign a value to each mitigating and
aggravating factor in the record.” Kindle, 2021 IL App (1st) 190484, ¶ 74. We will presume “that
the trial court properly considered all mitigating factors and rehabilitative potential before it, and
the burden is on defendant to affirmatively show the contrary.” People v. Johnson, 2020 IL App
(1st) 162332, ¶ 95. Defendant’s contention on appeal once again to the contrary, this presumption
also applies to defendant’s contention that the circuit court improperly failed to expressly consider
several of the factors contained in section 5-4.5-105. Kindle, 2021 IL App (1st) 190484, ¶ 73;
Villalobos, 2020 IL App (1st) 171512, ¶ 74. Ultimately, “the seriousness of an offense, and not
mitigating evidence, is the most important factor in sentencing” (People v. Wilson, 2016 IL App
(1st) 141063, ¶ 11), and “the presence of mitigating factors neither requires a minimum sentence
nor precludes a maximum sentence” (People v. Jones, 2014 IL App (1st) 120927, ¶ 55).
¶ 19 Here, defendant was sentenced as a Class X offender to 6.5 years’ imprisonment for each
of his aggravated criminal sexual assault convictions, well within the statutory range of 6 to 30
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No. 1-20-1170
years. See 720 ILCS 5/12-14(d) (West 2002) (certain aggravated criminal sexual assault
convictions shall be sentenced as a Class X offender); 730 ILCS 5/5-4.5-25(a) (West 2020) (for
Class X felonies, the sentencing range is 6 to 30 years’ imprisonment). Thus, we presume his
aggregate 39-year sentence was proper absent some indication otherwise. People v. Burton, 2015
IL App (1st) 131600, ¶¶ 36, 38 (A defendant “must make an affirmative showing that the
sentencing court did not consider the relevant factors.”).
¶ 20 To make this showing, defendant faults the circuit court for its purportedly improper failure
to expressly consider several of the factors contained in section 5-4.5-105 of the Unified Code of
Corrections, which provides:
“(a) On or after the effective date of this amendatory Act of the 99th General
Assembly, when a person commits an offense and the person is under 18 years of
age at the time of the commission of the offense, the court, at the sentencing hearing
conducted under Section 5-4-1, shall consider the following additional factors in
mitigation in determining the appropriate sentence:
(1) the person’s age, impetuosity, and level of maturity at the time of the
offense, including the ability to consider risks and consequences of behavior, and
the presence of cognitive or developmental disability, or both, if any;
(2) whether the person was subjected to outside pressure, including peer
pressure, familial pressure, or negative influences;
(3) the person’s family, home environment, educational and social
background, including any history of parental neglect, physical abuse, or other
childhood trauma;
(4) the person’s potential for rehabilitation or evidence of rehabilitation, or
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No. 1-20-1170
both;
(5) the circumstances of the offense;
(6) the person’s degree of participation and specific role in the offense,
including the level of planning by the defendant before the offense;
(7) whether the person was able to meaningfully participate in his or her
defense;
(8) the person’s prior juvenile or criminal history; and
(9) any other information the court finds relevant and reliable, including an
expression of remorse, if appropriate. However, if the person, on advice of counsel
chooses not to make a statement, the court shall not consider a lack of an expression
of remorse as an aggravating factor.” 730 ILCS 5/5-4.5-105 (West 2020).
¶ 21 As an initial matter, the State contends on appeal that this statute is simply inapplicable
here where defendant committed his crimes before the effective date of the act adding this section
to the Unified Code of Corrections. Defendant contends otherwise. We need not wade into that
debate, as even assuming this section applied to defendant’s resentencing, defendant’s argument
on appeal is unpersuasive.
¶ 22 First, we reiterate that a court is not “required to recite or assign a value to each mitigating
and aggravating factor in the record” (Kindle, 2021 IL App (1st) 190484, ¶ 74), and we will
presume “that the trial court properly considered all mitigating factors and rehabilitative potential
before it, and the burden is on defendant to affirmatively show the contrary” (Johnson, 2020 IL
App (1st) 162332, ¶ 95). This presumption applies to defendant’s contention that the circuit court
improperly failed to expressly consider several of the factors contained in section 5-4.5-105.
Kindle, 2021 IL App (1st) 190484, ¶ 73; Villalobos, 2020 IL App (1st) 171512, ¶ 74. As there is
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nothing affirmative in the record to the contrary, it is appropriate to apply this presumption here.
¶ 23 Second, the record here actually reflects that the circuit court did explicitly address some
of the statutory factors defendant contends were not specifically addressed. While defendant
contends the court never “referenced the fact that Adrian was barely 15 years old at the time of the
instant offenses,” the circuit court was repeatedly reminded of the evidence of this fact at
resentencing, and specifically noted that defendant would “still be a young man *** less than 50
years old” when he was released from prison. (Emphasis added.) Defendant next complains that
the circuit court did not make findings as to how defendant’s young age affected his impetuosity
and maturity at the time of the offenses. The statute, however, only requires a court to “consider”
the relevant factors, and the relevant subsection actually requires the court to consider a
defendant’s “impetuosity, and level of maturity at the time of the offense, including the ability to
consider risks and consequences of behavior, and the presence of cognitive or developmental
disability.” 730 ILCS 5/5-4.5-105(a)(1) (West 2020). The circuit court specifically referenced
defendant’s prior diagnosis with explosive disorder as a juvenile.
¶ 24 Furthermore, while defendant notes that the circuit court did not make any findings as to
whether defendant was “subjected to outside pressure, including peer pressure, familial pressure,
or negative influences,” (730 ILCS 5/5-4.5-105(a)(2) (West 2020)), he fails to recognize that there
was simply no evidence presented that these factors were present in this case. Finally, it may well
be true that the circuit court did not specifically “make any findings relative to the fact that Adrian
had been sexually abused as a child, or that his father died when Adrian was just seven years old
and he was then raised by his mother, who was a drug addict, and eventually a stepfather who was
also a drug addict,” and that such history was relevant under the statute. 730 ILCS 5/5-4.5-
105(a)(3) (West 2020). However, we again note that the statute only requires a court to “consider”
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the relevant factors and the circuit court was simply not required to expressly consider each of the
factors contained in section 5-4.5-105. Kindle, 2021 IL App (1st) 190484, ¶ 73; Villalobos, 2020
IL App (1st) 171512, ¶ 74.
¶ 25 Given the deference we owe to sentences within the statutory range (People v. Vega, 2018
IL App (1st) 160619, ¶ 64), coupled with the circuit court’s careful consideration of the factors in
aggravation and mitigation and the presumptions discussed above, we do not see a justification to
disturb the circuit court’s sentencing judgment.
¶ 26 For the foregoing reasons, the judgment of the circuit court is affirmed.
¶ 27 Affirmed.
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