People v. Torbeck , 2022 IL App (4th) 210668-U ( 2023 )

NOTICE 2023 IL App (4th) 210668-UThis Order was filed under FILED
Supreme Court Rule 23 and is NO. 4-21-0668 January 4, 2023
not precedent except in the Carla Bender
limited circumstances allowed IN THE APPELLATE COURT th
4 District Appellate
under Rule 23(e)(1). Court, IL
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Coles County
CHRISTOPHER TORBECK, ) No. 19CF300
Defendant-Appellant. )
) Honorable
) James R. Glenn,
) Judge Presiding.
JUSTICE HARRIS delivered the judgment of the court.
Justices Turner and Zenoff concurred in the judgment.
ORDER
¶1 Held: (1) Defendant was not prejudiced by the trial court’s failure to strictly comply
with Illinois Supreme Court Rule 402(b) (eff. July 1, 2012).
(2) The trial court did not abuse its discretion in denying defendant’s motion to
withdraw guilty plea.
(3) The trial court did not impose an excessive sentence.
¶2 Defendant, Christopher Torbeck, pleaded guilty to one count of predatory
criminal sexual assault of a child (720 ILCS 5/11-1.40(a)(1) (West 2018)) and was convicted of a
second count of the same offense following a bench trial. The trial court subsequently sentenced
defendant to consecutive terms of 26 years’ imprisonment. Defendant appeals directly from the
convictions and sentence, arguing (1) the trial court failed to properly admonish him pursuant to
Illinois Supreme Court Rule 402(b) (eff. July 1, 2012), (2) the trial court erred in denying his
motion to withdraw guilty plea, and (3) the trial court imposed an excessive sentence. We
affirm.
¶3 I. BACKGROUND
¶4 In July 2019, the State charged defendant with two counts of predatory criminal
sexual assault of a child (id.). In count I, the State alleged that defendant “placed his penis in the
anus of [T].B.” In count II, the State alleged defendant “placed his finger in the anus of [T].B.”
According to the charging documents, T.B. was 7 years old at the time of the alleged offenses;
defendant was 30 years old.
¶5 In August 2019, privately retained defense counsel, Scott Ealy, filed a motion
requesting the trial court appoint a clinical psychologist to conduct a fitness examination of
defendant. Defense counsel attached an affidavit to the motion in which he stated, “[d]efendant
may be unable to communicate with accuracy under certain circumstances and to make decisions
in his own best interests.” The court granted the motion and appointed Dr. Jerry L. Boyd to
examine defendant and submit a written report of his findings to the court. After conducting the
examination, Dr. Boyd concluded defendant met minimum standards for fitness to stand trial
despite the “presence of mild intellectual disability in a person whose mental age is estimated to
be around 10-12 years of age.” Dr. Boyd noted that defendant’s “baseline fitness can be
enhanced by the use of basic language in explanations, repeating important concepts, breaking
down complicated decisions into smaller manageable parts, and by offering simple choices with
clear, brief explanations of consequences.”
¶6 On October 16, 2020, defense counsel filed a motion to withdraw as counsel on
the basis that “[t]he relationship of the parties [was] no longer governed by a contractual
agreement between the parties for future services.” At the hearing on his motion to withdraw,
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counsel stated he was “past the point, unfortunately, of being compensated in this matter.” The
trial court denied the motion. On October 26, 2020, the day before the trial was scheduled to
begin, defense counsel informed the court that defendant wished to waive his right to a jury trial.
The court admonished defendant, accepted his waiver, and continued the proceedings.
¶7 Defendant’s bench trial was conducted on February 25, 2021. The State
introduced into evidence two video-recorded interviews conducted with T.B. and a video-
recorded interview of defendant. In defendant’s interview, he confessed to penetrating T.B.’s
anus with his penis and finger. T.B. corroborated both penetrations in his recorded interviews.
T.B. also testified in camera. T.B. testified defendant did not put his finger into T.B.’s “back
private,” and he did not recall telling the investigators otherwise. At the close of the State’s
case-in-chief, defense counsel requested an opportunity to speak with defendant. Following a
12-minute recess, counsel moved for a directed verdict as to both counts. The trial court denied
the motion. Defense counsel then informed the court that defendant wished to plead guilty to
count I and “argument with regard to Count 2.” The trial court asked the State if it objected, and
the State responded, “I’m sorry, but, Your Honor, it’s just something I haven’t encountered
before, given that you have all of the evidence. If he is pleading guilty to Count 1, it is certainly
not a negotiated plea and I’m not sure what else—I’m not sure what else to say on that.” The trial
court ultimately accepted defendant’s guilty plea as to count I and found him guilty of count II
beyond a reasonable doubt.
¶8 Defense counsel filed a motion for new trial in which he argued, in relevant part,
“With regard to both Counts I and II, the Court erred when it failed to grant the Defendant’s
Motion for Directed Verdict at the close of the Plaintiff’s presentation of its case.” The trial court
denied the motion.
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¶9 On July 14, 2021, the trial court sentenced defendant to consecutive terms of 26
years’ imprisonment. The trial court found in mitigation defendant had no prior criminal history
and “was a person with an intellectual disability.” The court also noted it had considered the
evidence presented by defendant, which generally demonstrated that, for “[m]ost of his life, he
was a very good citizen, but on one night, one unfortunate night, this good citizen was a
monster.” T.B.’s parents provided victim impact statements for the court’s consideration. The
parents explained that T.B. no longer trusts men, has had to attend counseling sessions, and
suffers from “night terrors still every night” as a result of the assault. The court found in
aggravation defendant’s conduct caused or threatened serious harm, the sentence was necessary
to deter others, and defendant held a position of trust with the minor. The court noted it took T.B.
20 minutes to speak for the first time in the video-recorded interview and he was shaking in fear
during his trial testimony.
¶ 10 On July 28, 2021, defendant pro se filed a motion to withdraw guilty plea and
reconsider sentence, stating, “I was told by my lawyer that [I] couldn’t afford a jury trial and
[I’m] not educated to know what is going on.” The trial court appointed the public defender to
represent defendant. Appointed counsel amended the motion to withdraw guilty plea to include
claims that the trial court improperly admonished defendant in violation of Illinois Supreme
Court Rule 402(b) (eff. July 1, 2012) and that defense counsel misadvised defendant about the
consequences of pleading guilty to count I.
¶ 11 On October 29, 2021, the trial court conducted a hearing on defendant’s motions
to withdraw guilty plea and reconsider the sentence. Defendant called his former counsel, Scott
Ealy. Ealy testified the State initially offered to recommend consecutive sentences of 25 and 20
years’ imprisonment in exchange for defendant’s agreement to plead guilty to both counts. The
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State subsequently offered to dismiss count II if defendant entered an open plea of guilty to count
I. Defendant rejected these offers. Ealy testified that on the day of the bench trial, defendant
informed him that he wished to accept the State’s second offer, but “the State indicated at that
time that they were no longer willing to consider that offer.” Ealy also testified as follows with
respect to the discussion he had with defendant about pleading guilty to count I:
“Q. So part of your advice when you’re speaking to [defendant] about
pleading guilty to Count 1 is that perhaps even if he’s convicted of the second
count, the sentences wouldn’t run consecutive?
A. We can always hope for a change in the law. Also, there would be the
question of the appellate folks, appellate defense, scrutinizing the admonishments,
which I think were a little bit inconsistent. But we knew that what the statute said,
and I did review that with [defendant] with regard to consecutive sentences.
Q. But you left some hope with [defendant] that perhaps these sentences
wouldn’t be consecutive?
A. Yeah. Yeah. That’s not the state of the current law as I explained, but
you never know what might happen in the future as far as developments in the
law, and you never know what might happen on appeal.”
¶ 12 Defendant also testified at the hearing. He was unable to recall the reasoning
behind the decision to plead guilty to count I. Defendant testified he did not know the meaning of
the words, “waive,” “consecutive,” or “mandatory.” Following presentation of the evidence and
arguments, the trial court denied the motions to withdraw guilty plea and reconsider sentence.
¶ 13 This appeal followed.
¶ 14 II. ANALYSIS
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¶ 15 On appeal, defendant argues (1) the trial court failed to properly admonish him
pursuant to Illinois Supreme Court Rule 402(b) (eff. July 1, 2012), (2) the trial court erred in
denying his motion to withdraw guilty plea, and (3) the trial court imposed an excessive
sentence.
¶ 16 A. Defendant Was Not Prejudiced by the Trial Court’s
Failure to Strictly Comply With Rule 402(b)
¶ 17 Defendant first argues the trial court violated Rule 402(b) by failing to question
him to confirm his guilty plea was not entered pursuant to an agreement with the State.
Defendant asserts the court’s Rule 402 violation prejudiced him by preventing him from entering
a knowing and voluntary plea. In support of this assertion, defendant highlights Dr. Boyd’s
findings that he has a “mild intellectual disability” and the mental age of a 10- to 12-year-old
child. The State does not challenge defendant’s assertion that the trial court violated Rule 402(b)
by failing to explicitly confirm there was no plea agreement with the State. Instead, the State
contends defendant forfeited his argument by failing to object to the court’s inadequate
admonishments or, alternatively, defendant’s argument fails because he cannot show he suffered
prejudice.
¶ 18 Initially, we find defendant has not forfeited his Rule 402 claim. In People v.
Whitfield, 217 Ill. 2d 177, 179 (2005), the defendant pleaded guilty to first degree murder and
armed robbery and was sentenced to a term of imprisonment that included three years of
mandatory supervised release (MSR). The trial court neglected to admonish the defendant of the
MSR term before accepting his plea, in violation of Rule 402. Id. at 180. The defendant in
Whitfield did not object to the court’s improper admonishment or raise the issue in a motion to
withdraw his guilty plea. Id. Nonetheless, the supreme court rejected the State’s argument that
the defendant had forfeited the Rule 402 claim. Id. at 188. It reasoned that “it would be
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incongruous” to hold the defendant had forfeited the right to bring the claim “because he did not
object to the circuit court’s failure to admonish him. To so hold would place the onus on
defendant to ensure his own admonishment in accord with due process.” Id.¶ 19 Here, it is undisputed that, like the defendant in Whitfield, defendant did not
object to the trial court’s admonishments. However, like in Whitfield, defendant did not have an
obligation to object to the imperfect admonishments in order to be able to challenge them on
direct appeal or in a postconviction petition. Thus, we will address the merits of defendant’s Rule
402 claim.
¶ 20 Rule 402 provides the following in relevant part:
“The court shall not accept a plea of guilty without first determining that
the plea is voluntary. If the tendered plea is the result of a plea agreement,
the agreement shall be stated in open court. The court, by questioning the
defendant personally in open court, shall confirm the terms of the plea
agreement, or that there is no agreement, and shall determine whether any
force or threats or any promises, apart from a plea agreement, were used to
obtain the plea.” Ill. S. Ct. R. 402(b) (eff. July 1, 2012).
“Our supreme court has consistently held that Rule 402 requires only substantial, not literal,
compliance with its provisions ***.” People v. Baker, 133 Ill. App. 3d 620, 622 (1985). “[T]he
failure to properly admonish a defendant, standing alone, does not automatically establish
grounds for reversing the judgment or vacating the plea. [Citation.] Rather, a reviewing court
focuses on whether the guilty plea was affirmatively shown to have been made voluntarily and
intelligently.” People v. Delvillar, 235 Ill. 2d 507, 520 (2009). “[A]n imperfect admonishment is
not reversible error unless real justice has been denied or the defendant has been prejudiced by
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the inadequate admonishment.” Whitfield, 217 Ill. 2d at 195. This court reviews de novo whether
the trial court complied with Rule 402. See, e.g., People v. Chavez, 2013 IL App (4th)
120259, ¶ 14.
¶ 21 Here, while we agree with the parties that the trial court failed to strictly comply
with Rule 402(b) by failing to specifically ask defendant whether his guilty plea was entered
pursuant to an agreement with the State, we find reversal is not warranted under the
circumstances, as the trial court substantially complied in its admonishments and defendant has
failed to demonstrate the court’s failure to provide verbatim admonishments prejudiced him.
¶ 22 First, it appears the trial court substantially complied with Rule 402 when it
admonished defendant prior to accepting his guilty plea. Although the court did not “confirm ***
that there [was] no [plea] agreement” as set forth in Rule 402 by making such specific inquiry, it
did question defendant whether there were any promises made to get him to plead guilty to count
I. Ill. S. Ct. R. 402(b) (eff. July 1, 2012). Defendant confirmed there were no such promises
made. We find it difficult to imagine how a plea agreement could exist in the absence of any
promises. The language of Rule 402 itself presupposes plea agreements will consist of promises.
See Ill. S. Ct. R. 402(b) (eff. July 1, 2012) (“The court *** shall determine whether *** any
promises, apart from a plea agreement, were used to obtain the plea.”). Thus, the court’s
ascertainment that no promises were made to induce defendant’s guilty plea essentially
confirmed there was no plea agreement.
¶ 23 Second, our review of the record leads us to believe defendant entered his plea
knowingly and voluntarily. According to defense counsel’s testimony at the hearing on the
motion to withdraw guilty plea, defendant rejected the State’s initial plea offer of consecutive
sentences of 25 and 20 years’ imprisonment on counts I and II, respectively. Defendant also
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rejected a second offer to enter an open plea of guilty on count I in exchange for the dismissal of
count II. On the day of trial, defendant indicated he wished to accept the State’s second offer, but
the State responded it was “no longer willing to consider that offer.” The State proceeded to
present its case-in-chief, which included defendant’s video-recorded confession to both counts.
After the State rested, defendant met with trial counsel during a short recess. Defendant then
informed the court he intended to plead guilty to count I. The trial court asked the State if it
objected, and the prosecutor responded, “I’m sorry, but, Your Honor, it’s just something I
haven’t encountered before, given that you have all of the evidence. If he is pleading guilty to
Count I, it is certainly not a negotiated plea and I’m not sure *** what else to say on that.”
¶ 24 Based on the above, we find defendant is unable to demonstrate his plea was not
entered knowingly and voluntarily. The State clearly indicated prior to trial that it was “no longer
willing to consider [the second plea] offer.” Then, when defendant indicated he wished to plead
guilty to count I after the State had presented its case-in-chief, the State responded, “If he is
pleading guilty to Count I, it is certainly not a negotiated plea.” Defendant, in arguing that his
plea was not knowing and voluntary, does not point to anything in the record that suggests he
actually believed he was pleading guilty pursuant to an agreement with the State. Instead, he
merely highlights Dr. Boyd’s findings and his own testimony at the hearing on the motion to
withdraw guilty plea that he did not understand the meaning of the word “negotiated.” This is not
enough to make us doubt that defendant’s guilty plea was knowing or voluntary. Accordingly,
we conclude defendant has failed to demonstrate he was prejudiced by the trial court’s failure to
give verbatim Rule 402 admonishments.
¶ 25 B. The Trial Court Did Not Err in
Denying Defendant’s Motion to Withdraw Guilty Plea
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¶ 26 Next, defendant argues the trial court erred in denying his motion to withdraw
guilty plea because the plea was “tainted by ineffective assistance of counsel.” Specifically,
defendant contends counsel was deficient in erroneously advising him (1) he could challenge the
conviction on count I despite pleading guilty to that count and (2) there was “ ‘hope’ ” the
“mandatory consecutive sentences would eventually run concurrently.” He asserts he was
prejudiced by counsel’s deficient performance because, absent counsel’s erroneous advice, he
would not have pleaded guilty given he had a plausible defense to count I—namely, the
predatory criminal sexual assault of a child statute is unconstitutional as applied to him because
he has “the mental development of a 10[-] to 12-year-old child.” “The decision to grant or deny a
motion to withdraw a guilty plea rests in the sound discretion of the circuit court and, as such, is
reviewed for abuse of discretion.” People v. Baez, 241 Ill. 2d 44, 109-10 (2011).
¶ 27 A defendant does not have an absolute right to withdraw a guilty plea. See, e.g.,
People v. Jamison, 197 Ill. 2d 135, 163 (2001). Instead, he “must show a manifest injustice under
the facts involved.” Delvillar, 235 Ill. 2d at 520. “The decision of the trial court will not be
disturbed unless the plea was entered through a misapprehension of the facts or of the law ***.”
Id. “Where the defendant has claimed a misapprehension of the facts or of the law, the
misapprehension must be shown by the defendant.” Id. “Where the plea of guilty was entered
*** in consequence of misrepresentations by counsel[,] *** the court should permit the
withdrawal of the plea of guilty and allow the accused to plead not guilty.” (Emphasis omitted
and internal quotation marks omitted.) People v. Manning, 227 Ill. 2d 403, 412 (2008). “Whether
[the] defendant’s plea was knowingly and voluntarily made depends on whether the defendant
had effective assistance of counsel.” (Internal quotation marks omitted.) Id.- 10 -
¶ 28 Our supreme court has adopted the two-part test articulated in Strickland v.
Washington, 466 U.S. 668 (1984), to determine whether a defendant was denied the effective
assistance of counsel in entering a guilty plea. See, e.g., Manning, 227 Ill. 2d at 412. To succeed
on an ineffective-assistance claim, “a defendant must show (1) counsel’s representation fell
below an objective standard of reasonableness (deficiency prong) and (2) there is a reasonable
probability that, but for counsel’s error, the result of the proceedings would have been different
(prejudice prong).” People v. Boyd, 2018 IL App (5th) 140556, ¶ 16. “An attorney’s conduct is
deficient if the attorney failed to ensure that the defendant’s guilty plea was entered voluntarily
and intelligently.” People v. Hall, 217 Ill. 2d 324, 335 (2005). For purposes of the prejudice
prong, “a guilty-plea defendant ‘must show that there is a reasonable probability that, but for
counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.’ ”
People v. Brown, 2017 IL 121681, ¶ 26 (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)). “A
conclusory allegation that a defendant would not have pleaded guilty and would have demanded
a trial is insufficient to establish prejudice.” People v. Valdez, 2016 IL 119860, ¶ 29. “Rather, the
defendant’s claim must be accompanied by either a claim of innocence or the articulation of a
plausible defense that could have been raised at trial.” Hall, 217 Ill. 2d at 335-36.
¶ 29 Here, defendant is unable to demonstrate ineffective assistance of counsel because
he has failed to satisfy the deficiency prong of the Strickland test. As state above, defendant
contends counsel was deficient in erroneously advising him (1) he could challenge the conviction
on count I despite pleading guilty to that count and (2) there was “ ‘hope’ ” the “mandatory
consecutive sentences would eventually run concurrently.” However, both of these contentions
are refuted by the record. In arguing counsel misadvised him regarding his ability to later
challenge the conviction on count I, defendant cites his motion for new trial, in which defense
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counsel states, “With regard to both Counts I and II, the Court erred when it failed to grant the
Defendant’s Motion for Directed Verdict at the close of the Plaintiff’s presentation of its case.”
This one sentence, contained in a motion filed after defendant had entered his guilty plea, hardly
amounts to an affirmative showing that counsel erroneously advised him, prior to pleading
guilty, that he would be able to challenge his conviction on appeal.
¶ 30 As for the contention counsel advised him there was “ ‘hope’ ” the mandatory
consecutive sentences would eventually run concurrently, defendant cites to a portion of
counsel’s testimony at the hearing on the motion to withdraw guilty plea. In relevant part, when
asked if he “left some hope with [defendant] that perhaps these sentences wouldn’t be
consecutive[,]” counsel answered, “Yeah. Yeah. That’s not the state of the current law as I
explained, but you never know what might happen in the future as far as developments in the
law.” Thus, contrary to defendant’s assertion that counsel advised him his consecutive sentences
may “eventually run concurrently,” the record shows counsel advised him, correctly, that his
sentences were required to run consecutively by law, and the only hope in them being served
concurrently at some point was through a change in the law. Thus, because defendant is unable
to demonstrate counsel affirmatively misadvised him, he cannot show counsel performed
deficiently and his ineffective assistance claim necessarily fails. See, e.g., Boyd, 2018 IL App
(5th) 140556, ¶ 19 (“Both prongs under Strickland must be satisfied in order to succeed on a
claim of ineffective assistance, and the failure to satisfy either prong will be fatal to the claim.
[Citation.] Therefore, a court need not address both components of the inquiry if the defendant
makes an insufficient showing on one.”). Accordingly, we find the trial court did not abuse its
discretion in denying defendant’s motion to withdraw guilty plea.
¶ 31 C. The Trial Court Did Not Impose an Excessive Sentence
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¶ 32 Finally, defendant argues the trial court imposed an excessive sentence.
Defendant contends the trial court improperly relied on two factors in aggravation: (1) the need
for deterrence and (2) defendant’s conduct caused or threatened serious physical injury.
Defendant further contends the court did not give sufficient weight to several mitigating factors,
such as his lack of a criminal history, his intellectual disability, and the fact he pleaded guilty to
one of the charges.
¶ 33 “The Illinois Constitution provides penalties are to be determined both according
to the seriousness of the offense and with the objective of restoring the offender to useful
citizenship.” People v. Daly, 2014 IL App (4th) 140624, ¶ 26 (citing Ill. Const. 1970, art. I,
§ 11). “This constitutional mandate calls for balancing the retributive and rehabilitative purposes
of punishment, and the process requires careful consideration of all factors in aggravation and
mitigation.” Id. The factors to consider include, “inter alia, the defendant’s age, demeanor,
habits, mentality, credibility, criminal history, general moral character, social environment, and
education, as well as the nature and circumstances of the crime and of defendant’s conduct in the
commission of it.” People v. Quintana, 332 Ill. App. 3d 96, 109 (2002). “The seriousness of the
crime is the most important factor in determining an appropriate sentence, not the presence of
mitigating factors such as the lack of a prior record, and the statute does not mandate that the
absence of aggravating factors requires the minimum sentence be imposed.” Id.¶ 34 Reviewing courts must give “great deference to the trial court’s judgment
regarding sentencing because the trial judge, having observed the defendant and the proceedings,
has a far better opportunity to consider these factors than the reviewing court, which must rely on
the ‘cold’ record.” People v. Fern, 189 Ill. 2d 48, 53 (1999). “The trial judge has the opportunity
to weigh such factors as the defendant’s credibility, demeanor, general moral character,
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mentality, social environment, habits, and age. [Citations.] Consequently, the reviewing court
must not substitute its judgment for that of the trial court merely because it would have weighed
these factors differently.” People v. Stacey, 193 Ill. 2d 203, 209 (2000). “A reviewing court may
not alter a defendant’s sentence absent an abuse of discretion ***.” People v. Alexander, 239 Ill.
2d 205, 212 (2010). An abuse of discretion occurs when the sentence 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.
¶ 35 Here, defendant was convicted of two counts of predatory criminal sexual assault
of a child. This offense is a Class X felony punishable by a sentence of between 6 and 60 years’
imprisonment. 720 ILCS 5/11-1.40(a)(1), (b)(1) (West 2018). The trial court must impose
consecutive sentences when a defendant is convicted of multiple counts of predatory criminal
sexual assault of a child. 730 ILCS 5/5-8-4(d)(2) (West 2018). Thus, defendant faced a
sentencing range of 12 to 120 years’ imprisonment. Defendant’s aggregate sentence of 52 years’
imprisonment was 40 years above the minimum and 68 years below the maximum.
¶ 36 The record shows the trial court carefully considered the applicable mitigating
and aggravating factors in imposing its sentence. Specifically, the court found in mitigation that
defendant had no prior criminal history and he “was a person with an intellectual disability.” In
aggravation, the court found defendant’s conduct caused or threatened serious harm, the sentence
was necessary to deter others from committing the same offense, and defendant held a position
of trust with the victim. The court also noted it had considered the evidence defendant presented
at the sentencing hearing, which demonstrated that “[m]ost of his life, he was a very good
citizen, but on one night, one unfortunate night, this good citizen was a monster.” The court
explicitly stated it had considered defendant’s lack of criminal history and his intellectual
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disability. That the court took these factors into consideration may be inferred from the fact it
imposed a sentence 68 years below the maximum. However, the court was also required to
consider the seriousness of the offense and the harm it caused to the minor victim. Based on the
court’s careful consideration of the applicable factors and evidence presented, we cannot say it
abused its discretion in sentencing defendant.
¶ 37 In arguing to the contrary, defendant asserts it was improper for the court to
consider in aggravation the need for deterrence and that his conduct caused or threatened serious
physical harm. Defendant cites People v. McKinley, 2020 IL App (1st) 191907, in support of the
former assertion. In McKinley, the First District found the trial court had abused its discretion in
sentencing the 16-year-old defendant to 39 years’ imprisonment for first degree murder. Id. ¶ 91.
It reasoned, in part, the trial court had placed improper weight on the need for deterrence
because, as the Supreme Court found in Montgomery v. Louisiana, 577 U.S. 190, 207 (2016),
“deterrence is diminished in juvenile sentencing because juveniles’ recklessness, immaturity, and
impetuosity make them less likely to consider possible punishment.” (Internal quotation marks
omitted.) McKinley, 2020 IL App (1st) 191907, ¶ 89. McKinley is readily distinguishable in that
the defendant in that case was a juvenile, whereas here, defendant was 30 years old when he
committed the instant offenses. Although defendant argues the rationale in McKinley should
apply to his case with equal force considering his intellectual disability, he fails to cite any
authority in support of this assertion, and we reject his argument.
¶ 38 Defendant also argues it was improper for the trial court to consider in
aggravation that his conduct caused or threatened serious “physical” harm because “T.B. was
examined at the hospital the day after the offenses and the results of the penile and rectal
examinations indicated absolutely no physical abrasions or injuries to T.B. as a result of the
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instant offenses.” Initially, we note the court did not find defendant’s conduct caused or
threatened serious “physical” harm. Instead, the court found his conduct caused or threatened
serious harm: “With regard to factors in aggravation, I agree with the State that *** [d]efendant’s
conduct caused or threatened serious harm—that’s Factor Number 1—and the evidence has
shown that today.” See 730 ILCS 5/5-5-3.2(a)(1) (West 2018) (A sentencing court may consider
in aggravation that “the defendant’s conduct caused or threatened serious harm.”).
¶ 39 Moreover, the record supports the trial court’s reliance on this factor in
aggravation. When determining whether the defendant’s conduct caused or threatened serious
harm, the sentencing court is permitted to consider both physical and psychological harm. See,
e.g., People v. Calva, 256 Ill. App. 3d 865, 875 (1993); People v. Burton, 102 Ill. App. 3d 148,
154 (1981). Here, the evidence presented at the sentencing hearing shows T.B. suffered serious
psychological harm as a result of the assault. He no longer trusts men and can only have female
teachers. T.B. also had to begin counseling and suffers from “night terrors *** every night.” The
court further described how terrified the minor was during his video-recorded interview and his
testimony at trial. Therefore, the trial court did not err in finding defendant’s conduct caused
serious harm to T.B. beyond that which is inherent in the offense.
¶ 40 Finally, defendant argues the trial court did not properly consider in mitigation
that he had no prior criminal history, had an intellectual disability, had been a “very good
citizen,” and pleaded guilty to count I. As discussed above, the trial court explicitly stated it had
considered the first three factors listed by defendant. With respect to the fact defendant pleaded
guilty to one of the counts, we note, “[t]he trial judge is not required to detail precisely for the
record the exact process by which she determined the penalty nor is she required to articulate her
consideration of mitigating factors.” Quintana, 332 Ill. App. 3d at 109. Moreover, defendant
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only pleaded guilty after T.B. was forced to testify and recount the crime defendant committed
against him. Thus, defendant has failed to show the trial court erred in balancing the applicable
mitigating and aggravating factors. We find the trial court did not abuse its discretion in
sentencing defendant to 52 years’ imprisonment.
¶ 41 III. CONCLUSION
¶ 42 For the reasons stated, we affirm the trial court’s judgment.
¶ 43 Affirmed.
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