People v. Johnson ( 2023 )

NOTICE 2023 IL App (4th) 220191-UThis Order was filed under
FILED
NO. 4-22-0191 March 30, 2023
Supreme Court Rule 23 and is
Carla Bender
not precedent except in the
IN THE APPELLATE COURT 4th District Appellate
limited circumstances allowed Court, IL
under Rule 23(e)(1).
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Livingston County
ISAIAH JOHNSON, ) No. 18CF184
Defendant-Appellant. )
) Honorable
) Jennifer H. Bauknecht,
) Judge Presiding.
JUSTICE CAVANAGH delivered the judgment of the court.
Presiding Justice DeArmond and Justice Steigmann concurred in the judgment.
ORDER
¶1 Held: (1) The trial court did not abuse its discretion in its consideration of sentencing
factors.
(2) Defendant’s attorney was not ineffective.
¶2 The trial court sentenced defendant, Isaiah Johnson, pursuant to a fully negotiated
plea agreement, to a three-year period of probation for committing aggravated domestic battery
via strangulation. 720 ILCS 5/12-3.3(a-5) (West 2018). The State filed a petition to revoke
defendant’s probation 22 months after sentencing, alleging he committed several other offenses,
failed to pay his fines, and had failed to complete domestic violence counseling. Defendant
admitted he had failed to pay the fines and complete the domestic violence counseling. The court
revoked defendant’s probation, and sentenced him to four years of incarceration. Defendant filed
a motion for reconsideration of his sentence, alleging the term was excessive, which the court
denied.
¶3 Defendant raises two issues on appeal: (1) he alleges the trial court should not have
considered, as an aggravating factor, that he committed the offense by means of strangulation
because that conduct was also an element of the offense for which he was sentenced and, in the
alternative, (2) his counsel provided ineffective assistance by failing to raise the former issue in a
postsentencing motion.
¶4 We affirm the judgment of the trial court.
¶5 I. BACKGROUND
¶6 In June 2018, defendant was charged with (1) aggravated domestic battery based
on strangulation of his girlfriend (id.), (2) domestic battery based on grabbing his girlfriend after
having been previously convicted of domestic battery (id. § 3.2(a)(1), (b) (West 2018)), and
(3) domestic battery based on striking his girlfriend after having been previously convicted of
domestic battery (id.). On September 18, 2018, defendant pleaded guilty to the aggravated
domestic battery charge pursuant to a fully negotiated plea agreement, which provided for the
dismissal of the other two charges, a 36 month period of probation, and participation in domestic
violence counseling. The plea agreement described defendant’s criminal history, which included
prior convictions for two domestic batteries, one theft, one retail theft, one violation of a bail bond,
one obstruction of justice, and one violation of an order of protection. The factual basis accepted
by the trial court was that defendant “committed an act of strangulation on his girlfriend” by
placing his hands around her neck and choking her. The court accepted defendant’s plea agreement
and sentenced him accordingly.
¶7 On June 3, 2020, the State filed a petition to revoke defendant’s probation, alleging
(1) the commission of several new offenses of which he had not yet been convicted, (2) he had
consumed alcohol on at least one occasion, (3) he had failed to pay his fines and costs, and (4) he
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had failed to begin or complete domestic violence counseling. On August 9, 2021, defendant
admitted he had failed to complete the aforementioned counseling and pay the fines and costs. The
State agreed it would dismiss the other allegations.
¶8 On November 22, 2021, the trial court held the resentencing hearing. The
presentence investigation report enumerated the above offenses, other than the violation of the bail
bond, as well as another retail theft conviction, an aggravated assault, traffic offenses, a possession
of cannabis, juvenile dispositions, and pending charges. Defendant proffered a letter from a
domestic violence counseling program reflecting defendant had been unsuccessfully discharged
from the program in May 2020, after having attended 12 of 26 mandatory sessions. As noted by
the court, the letter was addressed to another circuit court. Defendant’s argument and allocution
stated he was not able to complete counseling because he could not afford it due to the pandemic
and could not find someone to babysit. He also argued, referencing his history, that he did not
“catch domestics like that.”
¶9 Before sentencing defendant to four years in prison, the trial court noted:
(1) defendant’s record was not “very good” and included a “number of violent offenses,” (2) the
seriousness of the strangulation defendant committed was self-evident, (3) the need for deterrence
given the nature of the conduct, (4) defendant made “a lot of excuses” after failing to take
advantage of the “opportunity” of probation, (5) “the single most important thing” was defendant
did not complete domestic violence counseling despite having had more than three years within
which to do so, and (6) the absence of “any strong mitigating factors.”
¶ 10 Defendant filed a motion to reconsider his sentence, alleging it was excessive and
his previous attorney told him he would not be imprisoned. The trial court denied the motion.
¶ 11 This appeal followed.
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¶ 12 II. ANALYSIS
¶ 13 A. The Trial Court Did Not Commit Plain Error
¶ 14 Defendant claims because strangulation was inherently an element of the offense
of the aggravated domestic battery conviction herein, the trial court should not have considered it
as an aggravating factor at sentencing.
¶ 15 Defendant acknowledges he did not raise this issue in his postsentencing motion,
which is generally required to preserve such an error for review. People v. Chapman, 194 Ill. 2d
186, 225 (2000). Failing to raise such an error is a procedural default, but, as defendant requests,
some errors can be reviewed if we determine plain error has occurred. Id. at 226. The plain-error
doctrine “allows a reviewing court to reach a forfeited error affecting substantial rights in two
circumstances.” People v. Herron, 215 Ill. 2d 167, 178 (2005). In short, the “doctrine bypasses
normal forfeiture principles and allows a reviewing court to consider unpreserved error when
either (1) the evidence is close, regardless of the seriousness of the error, or (2) the error is serious,
regardless of the closeness of the evidence.” Id. at 186-87. Though the doctrine is
“nonconstitutional,” it “has roots in the same soil as due process.” Id. at 177. “Fairness, in short,
is the foundation of our plain-error jurisprudence.” Id. Its “purpose is to protect the rights of the
defendant and the integrity and reputation of the judicial process.” Id. Defendant asserts error under
both prongs of the doctrine.
¶ 16 Before we determine if the plain-error exception to forfeiture applies, however, we
first determine if any error occurred at all. Chapman, 194 Ill. 2d at 226. If we find no error, there
is no plain-error basis to avoid procedural default. Id. at 227.
¶ 17 Trial courts have broad discretionary sentencing powers, and we will not reverse a
sentence absent an abuse of discretion. People v. Stacey, 193 Ill. 2d 203, 209-10 (2000). We give
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such deference because the trial courts are usually in a better position to determine an appropriate
sentence, having the opportunity to assess the defendant’s characteristics, including credibility and
demeanor. Id. at 209. We do not substitute our judgment for that of the trial court solely because
we would weigh the sentencing factors differently. Id. A trial court has discretion to conclude a
sentencing factor deserves little weight, or that it is aggravating. People v. Shatner, 174 Ill. 2d 133,
160 (1996).
¶ 18 The sentencing court is not required to articulate each factor it relies on when
imposing its sentence. People v. Wilson, 2016 IL App (1st) 141063, ¶ 11. We presume the court
has considered all mitigation evidence and other factors relevant to sentencing. Id. To rebut this
presumption, the defendant must affirmatively demonstrate the trial court did not consider such
factors. Id.¶ 19 Here, the trial court enumerated the sentencing factors comprising the basis for
defendant’s sentence. The court considered (1) defendant’s criminal history, including prior
domestic battery convictions, (2) the violent nature of strangulation, (3) the deterrence aspect of
sentencing for such an offense, (4) defendant’s repeated excuses for his failures to comply with
the probation order, and (5) defendant’s failure to complete the counseling ordered in the three
years which had elapsed since the entry of the order requiring it. We also note, by the time of the
sentencing hearing, approximately 15 months had passed since defendant had been unsuccessfully
discharged from the domestic violence counseling program and the State’s filing of the petition to
revoke defendant’s probation. Thus, defendant had plenty of time to complete that, or another,
counseling program. Additionally, defendant had adequate notice the State sought to revoke his
probation for his failure to complete counseling. Nevertheless, defendant still failed to do so. In
addition, it is not clear the letter defendant introduced at sentencing even related to a program he
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had enrolled in at the court’s direction. Therefore, we find defendant’s sentence was not an abuse
of discretion.
¶ 20 Further, we disagree the record demonstrates the trial court improperly relied on
strangulation as an aggravating factor. It is true the court noted the seriousness of the act of
strangulation, but we do not believe the context suggests the court considered it as an aggravating
factor. Instead, the record demonstrates the court considered the act of strangulation only in
reference to the seriousness of the nature of the crime. The court relied on numerous other factors,
such as defendant’s prior criminal history involving other domestic batteries, his excuses and lack
of remorse, and his failure over a period of years to complete the domestic violence counseling.
See, e.g., People v. Ward, 154 Ill. 2d 272, 332 (1992) (where the sentencing court “properly
focused on the character and record of the offender, as well as the circumstances surrounding the
offenses”). Among the factors that court “considered were the facts of the crime itself, its nature,
and defendant's actions; his prior criminal history, which includes four criminal convictions; his
history of having weapons while incarcerated, including what he did while in possession of those
weapons; his inability to conform his conduct to any social standard; the finding that he was
incorrigible and not subject to any type of rehabilitation; and the violence and cruelty which he
perpetrated on the community by virtue of these assaults.” Id. at 331. Thus, the court herein
appropriately concentrated on defendant’s record, character, and the nature of the offense.
¶ 21 Additionally, as to defendant’s suggestion the trial court improperly enhanced
defendant’s sentence based on strangulation, we also disagree. The same factor cannot be used to
enhance a sentence and as an element of an offense. People v. Phelps, 211 Ill. 2d 1, 11-12 (2004).
Phelps is instructive regarding defendant’s claim. Therein, the allegation the defendant caused
severe and permanent disability was an element of the heinous battery charge. Id. at 13. That
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element elevated the battery from a Class A misdemeanor to a Class X felony. Id. That Class X
felony carried a sentencing range of 6 to 45 years in prison, and the court sentenced the defendant
to 30 years of imprisonment. Id. Though the sentence was based in part on the defendant’s
infliction of severe injury, the consideration of the injury constituted but one enhancement. Id. at
13-14. The trial court therefore committed no error. Id. at 14.
¶ 22 Here, the fact defendant committed domestic battery by strangling his girlfriend
was used to elevate the offense to aggravated domestic battery, a Class 2 felony. 720 ILCS 5/12-
3.3(a-5), (b) (West 2018). Defendant received a sentence of four years’ incarceration, which was
well within the three-to-seven-year range provided for a Class 2 felony. 730 ILCS 5/5-4.5-35(a)
(West 2018). Thus, the severity of the offense was enhanced but once, and the trial court committed
no error in imposing the sentence.
¶ 23 Finding no error in imposing the sentence or any abuse of discretion in considering
the sentencing factors, we find no plain-error reason to allow defendant to avoid forfeiture relative
to the court’s reference to the method of defendant’s commission of the offense.
¶ 24 B. Defendant’s Claim His Counsel Was Ineffective
¶ 25 In the alternative, defendant claims his attorney was ineffective for failing to raise
the trial court’s purported reliance on strangulation in the motion seeking the court’s
reconsideration of his sentence.
¶ 26 Ineffective assistance of counsel claims are appropriate for review on direct appeal
if the record is sufficient to permit such review. People v. Veach, 2017 IL 120649, ¶ 46. If the
record is not adequate or complete, however, such claims are best addressed in collateral
proceedings. Id. We are to carefully consider each such claim to determine whether we can
consider it on direct review. Id. ¶ 48.
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¶ 27 To prevail on an ineffective assistance of counsel claim, it must be established that
the attorney’s conduct did not meet an objective standard of reasonableness, and that there is a
reasonable probability, if not for the attorney’s errors, the outcome of the proceeding would have
been different. Strickland v. Washington, 466 U.S. 668, 694 (1984). Without prejudice, we do not
reach the issue of whether the attorney’s performance was deficient. People v. Crutchfield, 2015
IL App (5th) 120371, ¶ 33. The defendant must overcome the strong presumption counsel’s action
or inaction was legitimately strategic, and was not outside the broad range of reasonable assistance.
Strickland, 466 U.S. at 689.
¶ 28 Having concluded above the trial court did not commit error in imposing
defendant’s sentence by considering the nature of the offense, defendant cannot establish prejudice
based on his attorney’s failure to raise such an issue in a postsentencing motion. In short, there is
no reasonable probability raising this issue would have changed defendant’s sentence given the
multiple factors noted by the court, including defendant’s criminal history, his excuses, and his
utter failure to complete counseling within the relevant time period. In addition, we note that not
only was defendant’s sentence within the statutory range, but it was also at the lower end of the
range. Thus, there was ample support for the court’s sentence without any consideration of the
method of the commission of the offense. Because defendant cannot establish he suffered
prejudice, his ineffective assistance of counsel claim is meritless.
¶ 29 III. CONCLUSION
¶ 30 For the foregoing reasons, we affirm the trial court’s judgment.
¶ 31 Affirmed.
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