People v. Rosas ( 2021 )

2021 IL App (4th) 200508-UNOTICE FILED
This Order was filed under NO. 4-20-0508 August 20, 2021
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
Plaintiff-Appellee, ) Circuit Court of
v. ) Champaign County
HECTOR U. ROSAS, ) No. 13CF1962
Defendant-Appellant. )
) Honorable
) Jason Matthew Bohm,
) Judge Presiding.
JUSTICE HOLDER WHITE delivered the judgment of the court.
Presiding Justice Knecht and Justice Harris concurred in the judgment.
ORDER
¶1 Held: The appellate court affirmed, concluding the trial court did not err by sentencing
defendant to a maximum term of 30 years’ imprisonment for predatory criminal
sexual assault of a child.
¶2 In October 2014, defendant, Hector U. Rosas, pleaded guilty to predatory criminal
sexual assault of a child, a Class X felony (720 ILCS 5/12-14.1(a)(1) (West 2012)). In
September 2020, defendant filed a second amended motion to withdraw his guilty plea and
vacate the judgment or, in the alternative, to reconsider the sentence. The following month, the
trial court denied the motion to withdraw the guilty plea and the motion to reconsider the
sentence.
¶3 Defendant appeals, arguing his maximum 30-year sentence should be vacated and
the case remanded for a new sentencing hearing where the trial court failed to afford sufficient
weight to the evidence in mitigation and improperly considered evidence in mitigation as
evidence in aggravation. For the following reasons, we affirm the trial court’s judgment.
¶4 I. BACKGROUND
¶5 In October 2014, defendant pleaded guilty to predatory criminal sexual assault of
a child, a Class X felony (720 ILCS 5/12-14.1(a)(1) (West 2012)). In December 2014, the trial
court held a sentencing hearing. The presentence investigation report (PSI) indicated defendant
was 51 years old at the time of sentencing. Defendant’s criminal history included multiple traffic
citations. According to the PSI, defendant was born in Peru and was a lawful permanent
resident. Defendant had two children who resided with their mother in Peru, and defendant sent
a minimum of $350 per month to assist in their support and upbringing.
¶6 Q.T.L., 17 years old at the time of defendant’s sentencing, testified defendant was
dating her mother when Q.T.L. moved to the United States. When Q.T.L. was approximately
seven years old, the abuse began one morning when she awoke to someone touching her vagina.
Q.T.L. tried moving like she was waking up to get defendant to stop touching her, but he did not
stop. Q.T.L. identified defendant as the person who touched her. According to Q.T.L.,
defendant touched her more than once per week while her mother was at work. Q.T.L. testified
the abuse went on for approximately three years. Q.T.L. never told her mother about the abuse
because she worried the news would cause her mother to fall into a diabetic coma. Defendant
reminded Q.T.L. that any bad news combined with her mother’s diabetes could cause her mother
to die.
¶7 Andrew Davis, a police officer with the City of Champaign, testified that, during
his investigation of defendant, he made contact with two children, N.N. and A.H. According to
Davis, N.N. made an initial statement about abuse at school, which was reported to the student
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resource officer. When Davis interviewed N.N., Davis identified defendant as a potential
offender because he was dating N.N.’s god-grandmother. The State played a recording of
Davis’s interview with N.N. N.N. described an incident that occurred when she was 9 or 10
years old where defendant got on top of her from behind and asked if it felt good. N.N.
described a second incident where defendant got into bed with her and hugged her. N.N.
identified defendant from a photograph array.
¶8 Based on N.N.’s interview, Davis contacted N.N.’s younger cousin, A.H. The
State played the recording of Davis’s interview with A.H. A.H. told Davis that defendant laid on
her as many as five times. She explained that she would play on a laptop while lying with her
belly on the bed. Defendant would lie on A.H. as she played on the laptop, move around, and
make A.H. uncomfortable.
¶9 Defendant’s sister testified he was a hard worker who provided for his family.
Defendant’s mother testified he liked to help others and she relied on his help. Defendant also
offered various letters of support.
¶ 10 The State recommended a maximum term of 30 years’ imprisonment. The State
highlighted the nature and duration of the offenses against Q.T.L. The State noted that although
defendant appeared to be an amiable and decent person, that appearance made defendant
dangerous because “below the surface there is a human being there that only comes out when he
has victims.” The State argued defendant showed a repeated pattern of abuse over many years
with multiple victims. The State characterized defendant as having a complete lack of
rehabilitative potential, arguing there was no reason to think defendant would reform his conduct
given the history.
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¶ 11 Defense counsel argued the trial court should give no weight to the allegations
from N.N. and A.H. because the police conducted a sloppy investigation. Counsel argued
defendant had rehabilitative potential because he took responsibility for his conduct and the
evidence in mitigation demonstrated defendant was a loving man dedicated to working and
providing for his daughters. Defense counsel noted defendant’s criminal history consisted of
traffic citations, which defendant always paid. Finally, defense counsel argued the cost to the
taxpayers to incarcerate defendant for 30 years was excessive when defendant would be deported
after serving his sentence. Defense counsel requested a sentence in the lower range.
¶ 12 The trial court stated it considered the PSI, the evidence presented in aggravation
and mitigation, and the comments made by the State and defendant. The court found the only
statutory aggravating factor was deterrence. The court stated,
“Now, there is other mitigation in this record, substantial
mitigation. The defendant is 51 years of age. He has no prior
criminal history. He pled guilty. He has been able to obtain and
maintain employment and not just a job but more than one job.
From the letters presented on his behalf he is a good worker. He
shows up on time. He does his job and he supports the family he
has back in Peru. These are all non-statutory mitigating factors.
And, again, the only statutory factor in aggravation is the deterrent
factor.
The individuals who have written on his behalf and
testified on his behalf talk about what a good man he is, he’s a
good worker, he’s a good son, he’s a good brother, and that’s well
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taken by the court, except child molesters don’t wear badges, they
don’t carry signs. They blend into the community. That’s the way
they are able to get away with what they do.”
The court noted Q.T.L.’s testimony about the extent of damage caused by defendant and the fact
she would forever remember what defendant did to her. The court noted the measures he took
such as showing up for work on time, supporting his family, and being a good citizen, allowed
him to prey on children, sometimes for many years.
¶ 13 The trial court stated it considered the evidence that defendant had attached
himself to another family with young girls after Q.T.L.’s mother ended the relationship. The
court stated defendant was unable to carry the abuse as far with N.N. and A.H., but it concluded
the deterrence factor outweighed the mitigation in the case. The court further considered defense
counsel’s argument that defendant would be deported after completing his sentence. The court
stated, “And the question is does the court impose a minimal sentence which is somewhere of a
mandatory minimum of six, and then allow the defendant to be relocated back to his home in
Peru and live out his life there, or does the court impose closer to a maximum sentence which
will guarantee, quite frankly, that this defendant will not pose a danger to any other children.”
The court concluded, “The deterrent factor has to come across loudly and clearly, and it will be
one of 30 years in the Illinois Department of Corrections.”
¶ 14 In September 2020, on remand from a prior appeal, defendant was allowed to file
a second amended motion to withdraw his guilty plea and vacate the judgment or, in the
alternative, to reconsider the sentence. See People v. Rosas, 2020 IL App (4th) 190090-U, ¶ 23.
The motion to reconsider sentence alleged the sentence failed to comply with the Illinois
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Constitution, the sentence was excessive, and the trial court failed to adequately consider
defendant’s potential for rehabilitation and lack of criminal history as mitigating factors.
¶ 15 Following a hearing on the motion to withdraw the guilty plea, the trial court
denied the motion. Defense counsel stood on the motion to reconsider the sentence. The State
noted the sentencing judge had the benefit of listening to the victim and observed her demeanor
before it imposed the 30-year sentence. The trial court concluded there was no error in
defendant’s sentence.
¶ 16 This appeal followed.
¶ 17 II. ANALYSIS
¶ 18 On appeal, defendant argues his maximum 30-year sentence should be vacated
and the case remanded for a new sentencing hearing where the trial court failed to afford
sufficient weight to the evidence in mitigation and improperly considered evidence in mitigation
as evidence in aggravation.
¶ 19 A trial court’s sentencing decisions are given substantial deference. People v.
Snyder, 2011 IL 111382, ¶ 36, 959 N.E.2d 656. We will disturb a sentence within the statutory
limits for the offense only if the trial court abused its discretion. People v. Flores, 404 Ill. App.
3d 155, 157, 935 N.E.2d 1151, 1154 (2010). A court abuses its discretion when imposing a
sentence “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, 737 N.E.2d
626, 629 (2000).
¶ 20 In determining an appropriate sentence, the trial court may consider the
seriousness, nature, and circumstances of the offense, including the nature and extent of the
elements of the offense. People v. Saldivar, 113 Ill. 2d 256, 271-72, 497 N.E.2d 1138, 1145
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(1986). The court is not required to explicitly outline the factors considered for sentencing, and
we presume the court considered all mitigating factors absent explicit evidence to the contrary.
People v. Meeks, 81 Ill. 2d 524, 534, 411 N.E.2d 9, 14 (1980). Each sentencing decision must be
based on a consideration of factors including “the defendant’s credibility, demeanor, general
moral character, mentality, social environment, habits, and age.” People v. Fern, 189 Ill. 2d 48,
53, 723 N.E.2d 207, 209 (1999). The trial court is better able to weigh these factors, having
observed the defendant and proceedings. Id. We will not substitute our judgment for that of the
trial court merely because we would have balanced the factors differently. Id.¶ 21 Here, the trial court stated it considered the PSI, the evidence presented in
aggravation and mitigation, and the comments made by the State and defendant. The court
found the only statutory aggravating factor was deterrence. The court stated,
“Now, there is other mitigation in this record, substantial
mitigation. The defendant is 51 years of age. He has no prior
criminal history. He pled guilty. He has been able to obtain and
maintain employment and not just a job but more than one job.
From the letters presented on his behalf he is a good worker. He
shows up on time. He does his job and he supports the family he
has back in Peru. These are all non-statutory mitigating factors.
And, again, the only statutory factor in aggravation is the deterrent
factor.
The individuals who have written on his behalf and
testified on his behalf talk about what a good man he is, he’s a
good worker, he’s a good son, he’s a good brother, and that’s well
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taken by the court, except child molesters don’t wear badges, they
don’t carry signs. They blend into the community. That’s the way
they are able to get away with what they do.”
The court noted Q.T.L.’s testimony about the extent of damage caused by defendant and the fact
she would forever remember what defendant did to her. The court noted the measures he took,
such as showing up for work on time, supporting his family, and being a good citizen, allowed
him to prey on children, sometimes for many years.
¶ 22 The trial court stated it considered the evidence that defendant had attached
himself to another family with young girls after Q.T.L.’s mother ended the relationship. The
court stated defendant was unable to carry the abuse as far with N.N. and A.H., but it concluded
the deterrence factor outweighed the mitigation in the case. The court concluded, “The deterrent
factor has to come across loudly and clearly, and it will be one of 30 years in the Illinois
Department of Corrections.”
¶ 23 The trial court clearly addressed the factors in mitigation and determined the
deterrence factor in aggravation outweighed the mitigating evidence. Defendant’s criminal
conduct was limited to the offense to which he pleaded guilty, and the trial court properly took
that into account in determining defendant’s sentence. Defendant contends the court gave
inadequate weight to the mitigating factors, but the weight to be given to the various factors is
within the discretion of the trial court. Additionally, the court noted the seriousness of the
offense and the lifelong impact it had on the victim. See People v. Charles, 2018 IL App (1st)
153625, ¶ 47, 138 N.E.3d 785 (“The most important sentencing factor is the seriousness of the
offense, and the court need not give greater weight to rehabilitation or mitigating factors than to
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the severity of the offense.”). Under these circumstances, we cannot say the court abused its
discretion in determining deterrence outweighed the mitigating evidence.
¶ 24 Defendant relies on People v. Smith, 178 Ill. App. 3d 976, 985, 533 N.E.2d 1169,
1175 (1989), and People v. Gibbs, 49 Ill. App. 3d 644, 648, 364 N.E.2d 491, 494 (1977), in
support of his argument that the trial court failed to afford adequate weight to the mitigation
evidence in this case. The State correctly points out the Illinois Supreme Court has rejected a
comparative analysis approach to sentencing. Fern, 189 Ill. 2d at 55. Moreover, we find Smith
and Gibbs distinguishable.
¶ 25 In Smith, “the defendant was 17 years of age, had no prior criminal record and
was mentally retarded. Also, his character and attitude indicated that he was unlikely to commit
another crime.” Smith, 178 Ill. App. 3d at 985. Here, defendant was 51 years of age, and
although he lacked a prior criminal history, he did in fact commit further offenses. In Gibbs, the
defendant was sentenced to an indeterminate term of 50 to 100 years in prison. Gibbs, 49 Ill.
App. 3d at 648. The appellate court determined the trial court failed to consider the defendant’s
rehabilitative potential and reduced the sentence to 15 to 45 years in prison. Id. at 649. In this
case, defendant was not subject to an indeterminate sentence. Moreover, the sentence in Gibbs
far exceeded the sentence in this case. Accordingly, we do not find Gibbs persuasive in this
instance.
¶ 26 Defendant also asserts the trial court improperly considered the mitigation
evidence in aggravation. The State contends defendant failed to raise a contemporaneous
objection and preserve the issue in his postsentencing motion. See People v. Hillier, 237 Ill. 2d
539, 544, 931 N.E.2d 1184, 1187 (2010). Defendant argues defense counsel raised essentially
the same issue before the trial court by arguing the sentence imposed was inconsistent with
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defendant’s family situation, past history of criminality, mental history, economic status,
education, and occupational or personal habits. Defendant further asserts that if this court finds
the issue forfeited, this court should consider the claim under the plain error doctrine.
¶ 27 We need not resolve this dispute, however, because we conclude the trial court
did not improperly consider the mitigation evidence in aggravation. Here, the trial court did
comment that defendant’s good reputation allowed him access to his victims. However, it does
not follow that the court considered his reputation in aggravation. The court very clearly
addressed defendant’s work history, his support of his family, and his lack of criminal history as
factors in mitigation. However, the court went on to explain it did not find the factors to be
particularly mitigating in this case because defendant used his reputation and appearance to
ingratiate himself with women who had young girls. Rather than considering mitigating factors
in aggravation, the court explained defendant’s method of operation based on the evidence
presented at the sentencing hearing. The court concluded, “The deterrent factor has to come
across loudly and clearly, and it will be one of 30 years in the Illinois Department of
Corrections.” See Charles, 2018 IL App (1st) 153625, ¶ 47 (stating the trial court determines the
weight to be given to mitigating evidence).
¶ 28 For the foregoing reasons, we conclude the trial court did not abuse its discretion
in giving greater weight to the aggravating factor than it did to the mitigating factors. The court
also did not improperly rely on the mitigating evidence in aggravation. We therefore conclude
the court did not abuse its discretion in sentencing defendant to the maximum term of 30 years’
imprisonment for predatory criminal sexual assault of a child.
¶ 29 III. CONCLUSION
¶ 30 For the reasons stated, we affirm the trial court’s judgment.
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¶ 31 Affirmed.
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