People v. Guzman ( 2021 )

2021 IL App (2d) 190851-UNo. 2-19-0851
Order filed September 24, 2021
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent
except in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Boone County.
)
Plaintiff-Appellee, )
)
v. ) Nos. 16-CF-216
) 16-DT-173
)
JULIO S. GARZA GUZMAN, ) Honorable
) C. Robert Tobin III,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE BRENNAN delivered the judgment of the court.
Presiding Justice Bridges and Justice Jorgensen concurred in the judgment.
ORDER
¶1 Held: The trial court did not abuse its discretion when, in resentencing defendant
following a violation of first-offender probation and supervision, it entered
convictions on the underlying offenses of unlawful possession of a controlled
substance and driving under the influence but did not impose a term of
incarceration. The record refutes defendant’s argument that the trial court did not
consider mitigating factors.
¶2 Defendant, Julio S. Garza Guzman, appeals from a judgment revoking his probation for
unlawful possession of a controlled substance (UPCS) (720 ILCS 570/402(c) (West 2016)),
revoking court supervision for driving under the influence (DUI) (625 ILCS 5/11-501(a)(5) (West
2021 IL App (2d) 190851-U2016)), and entering a judgment of conviction on each offense. Defendant argues that the trial
court abused its discretion in imposing convictions rather than continuing the terms of probation
and supervision. We affirm.
¶3 I. BACKGROUND
¶4 On April 26, 2017, defendant, represented by private counsel, pleaded guilty (in case
No. 16-CF-216) to UPCS, a Class 4 felony (720 ILCS 570/402(c) (West 2016)), and (in case
No. 16-DT-173) to DUI, a Class A misdemeanor (625 ILCS 5/11-501(c)(1) (West 2016)).
Defendant also pleaded guilty (in case No. 16-TR-69992) to improper passing of an emergency
vehicle and (in case No. 16-TR-69993) to speeding. The factual basis for the pleas established that,
at about 3:13 a.m. on August 14, 2016, Boone County sergeant Krieger was conducting a traffic
stop in a 55-mile-per-hour zone when a Corvette passed close to his vehicle traveling 93 miles per
hour. Krieger stopped the Corvette and observed defendant, the driver, with red, bloodshot eyes.
A second officer arrived and observed cannabis in the console area. Defendant showed signs of
impairment during field sobriety tests. A third officer smelled the odor of alcohol emanating from
defendant’s mouth. Defendant admitted to drinking “some beers.” Two “Xanax bars,” later
determined to be “alprazolam,” a generic form of Xanax, were found in defendant’s wallet.
Defendant’s urine tested positive for tetrahydrocannabinol (THC).
¶5 The trial court did not enter convictions on the UPCS and the DUI offenses. Instead, the
court sentenced defendant to 24 months’ first-offender probation (see 720 ILCS 570/410 (West
2016)) on the UPCS offense and 24 months’ supervision on the DUI offense. The court entered a
judgment of conviction on the traffic offenses. The court admonished defendant to comply with
the conditions of probation, including that defendant refrain from consuming alcohol, or “it could
be a trip to the Department of Corrections for anywhere up to three years.”
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2021 IL App (2d) 190851-U¶6 On February 28, 2018, the State filed a petition to vacate probation in case No. 16-CF-216
and a petition to revoke supervision in case No. 16-DT-173, alleging in each that, on February 27,
2018, defendant consumed alcohol. On October 12, 2018, defendant admitted to the allegations in
the petitions. The court ordered a presentence investigation report (PSI), and the matter was set for
sentencing.
¶7 At the outset of the sentencing hearing on December 10, 2018, the trial court inquired
whether there were modifications to the PSI. Defense counsel advised the court that defendant had
completed 32 of 40 public service hours. He had also returned to “Remedies,” an outpatient
treatment program (the PSI reflected that defendant went on to complete the program). Later, the
parties stipulated to the following facts underlying the petitions to vacate probation and revoke
supervision. An officer was dispatched to investigate a crashed vehicle in a roadway. Upon arrival,
the officer saw Michael Burger standing next to the vehicle and defendant walking by an apartment
building. Burger told the officer that he had seen the vehicle as he was walking by and that he did
not know what had happened. The officer asked Burger where he was coming from and Burger
answered, “ ‘that is irrelevant.’ ” Burger’s speech was slurred, his eyes were bloodshot, and his
breath smelled like alcohol. The officer placed Burger in his squad car. A woman, who identified
herself as defendant’s mother, approached the officer. She told the officer that the vehicle belonged
to her son and that she wanted to know if her son was okay. The woman saw defendant and
identified him as her son. The officer then spoke to defendant, who denied that the woman was his
mother. Defendant denied driving the vehicle and told the officer that his friend had been driving.
Defendant’s speech was slurred, his eyes were bloodshot, and his breath smelled like alcohol. The
officer placed defendant in the back of a second squad car. The officer returned to his squad car
and again spoke with Burger, who told the officer that he was sorry for lying and that defendant
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2021 IL App (2d) 190851-Uwas the driver. The officer read defendant his rights. Defendant refused to speak to the officer and
refused to take field sobriety tests. The State declined to pursue charges due to the lack of witnesses
and conflicting accounts of who was driving.
¶8 The State asked the trial court to enter convictions on the UPCS and DUI offenses, given
the allegations and the fact that defendant had already been given the benefit of special probation
and court supervision. The State asserted that it could prove by a preponderance of the evidence
that defendant committed a DUI offense.
¶9 Defense counsel asked the court to extend the terms of probation and supervision. Counsel
argued that defendant (1) was only 23 years old, (2) was a high school graduate, (3) had a strong
work ethic and had worked since high school, (4) was currently employed as a machine operator,
(5) had completed “Remedies” before his probation violation, (6) had completed the “ARM”
program in July 2018, (7) was “nearly done” with his court-ordered public service, (8) had
distanced himself from negative friend groups, (9) had accepted responsibility and realized that
his behavior was “both selfish and dangerous,” (10) had no juvenile history, (11) had no prior adult
record before the underlying offenses, (12) has sought help from medical professionals for
depression and anxiety, and (13) reported improvements since taking prescribed medication.
¶ 10 In sentencing defendant, the trial court noted that it had “a number of choices.” The court
stated that it could sentence defendant for up to three years but that doing so would be “overkill,”
as a prison sentence was not merited by the nature of the offense or defendant’s history. On the
other hand, “to do nothing” would mean “no consequences” for defendant’s actions. The court
found that the appropriate sentence was “somewhere in the middle.” The court commented:
“This isn’t a situation of making poor choices once. It’s after me telling you—you getting
the benefit of court supervision and a 410 probation, you chose voluntarily to consume
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2021 IL App (2d) 190851-Ualcohol and basically say I don’t care about my sentence, I don’t care about all that, I’m
going to do what I want to do.”
The court entered judgments of conviction on each offense and unsatisfactorily terminated
probation and supervision.
¶ 11 On January 9, 2019, defendant filed a pro se “motion” in the trial court requesting an
“appeal” and stating that he had “additional details to the case” and a “different attorney.” At a
hearing on January 18, 2019, defendant told the court that he wanted to “add more evidence.” The
court gave defendant time to hire a new attorney. At a status hearing on February 1, 2019,
defendant told the court that he was referred to a new attorney and stated, “I have witnesses to my
probation violation[,] which is why I appealed this, the motion.” The trial court gave defendant
two weeks to meet with his attorney. At a status hearing on April 12, 2019, the court appointed the
public defender. Defendant commented that he was there on his motion “[t]o withdraw [his] guilty
plea.” On July 29, 2019, defendant, through appointed counsel, filed a motion to withdraw his
admission to the petitions and a motion for reconsideration of his sentences.
¶ 12 On August 30, 2019, the trial court held a hearing on defendant’s motions. After denying
defendant’s motion to withdraw his admissions, the court considered defendant’s motion to
reconsider his sentences. Defense counsel noted the mitigating points that prior counsel had argued
in support of continuing defendant’s probation and supervision. Counsel stated: “I’m not saying
that Your Honor didn’t give those things consideration, but there’s nothing wrong, I mean, in my
eyes in reconsidering something that had happened earlier.” The court replied:
“Okay. And I did consider all that. Ultimately no one has a right to 410 probation.
Nobody has a right to court supervision on a DUI. I gave you the opportunity and you blew
it. You consumed alcohol and alcohol is—you’re not supposed to drink alcohol when
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2021 IL App (2d) 190851-Utrying to stay sober from drug addiction. You’re not to drink alcohol when you’re dealing
with an alcohol DUI or some sort of a DUI. It directly bears on the nature of both of those
offenses. It’s not that you were violated for a jaywalking ticket or it’s not that you were
violated for not getting your public service work done. You drank alcohol. That is one of
the reasons that DUI is illegal. It’s one of the reasons that possession of a controlled
substance is illegal. You’re consuming substances when you weren’t supposed to.
On the flip side, I could have sentenced you to three years in prison on that
controlled substance, I could have sentenced you to a year in jail on the DUI. I chose to do
neither of those. Instead straight convictions on both of those. So I did consider for
mitigation purposes everything and I just—I gave you the—what I would consider a very
favorable sentence based upon a very direct violation of both of those sentences. So the
motion for reconsideration of sentence is heard and denied.”
¶ 13 Defendant timely appealed.
¶ 14 II. ANALYSIS
¶ 15 Defendant argues that the trial court abused its discretion when it failed to give the proper
weight to the mitigating evidence and entered convictions rather than continuing the terms of
probation and supervision. The State counters that we lack jurisdiction over the appeal or, in the
alternative, that the court’s resentences were not an abuse of discretion.
¶ 16 We first address the State’s contention on jurisdiction. On December 19, 2020, defendant
filed a motion to establish jurisdiction in this court, and the State filed an objection. The State
argued that defendant’s pro se motion filed on January 9, 2019, within 30 days of the judgment,
should be construed as a notice of appeal rather than a timely motion to reconsider the judgment.
Thus, according to the State, we lacked jurisdiction because defendant’s subsequent motions to
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2021 IL App (2d) 190851-Uwithdraw his admissions and reconsider his sentences were untimely because defendant filed those
motions after the pro se notice of appeal and more than 30 days after the judgment. We disagreed
and granted defendant’s motion to establish jurisdiction. The State presents no new arguments in
its brief, and we adhere to our prior ruling. Defendant’s pro se filing was labeled as a “motion”
and, despite stating that he wanted to “appeal,” defendant clarified on the record that he wanted to
“add more evidence” and had “witnesses to [his] probation violation.” Thus, defendant’s pro se
motion was appropriately treated as a timely post-judgment motion to withdraw his admissions.
Further, we treat the motions filed by a subsequently appointed counsel as amendments.
¶ 17 Addressing the merits, it is well established that the trial court is the proper forum to
determine a sentence and that its sentencing decision is entitled to great deference and weight.
People v. Latona, 184 Ill. 2d 260, 272 (1998). This is because the court, having observed the
defendant and the proceedings, has a far better opportunity to consider the appropriate sentencing
factors than the reviewing court, which must rely on the cold record. People v. Alexander, 239 Ill.
2d 205, 213 (2010). “ ‘The trial judge has the opportunity to weigh such factors as the defendant’s
credibility, demeanor, general moral character, mentality, social environment, habits, and age.’ ”
Id. (quoting People v. Stacey, 193 Ill. 2d 203, 209 (2000)).
¶ 18 A sentence within the statutory limits will not be disturbed on appeal unless the trial court
has abused its discretion. People v. Flores, 404 Ill. App. 3d 155, 157 (2010). An abuse of discretion
occurs only if the trial court imposes a sentence that varies greatly from the spirit and purpose of
the law or is manifestly disproportionate to the nature of the offense. Id. A trial court has wide
latitude in sentencing a defendant, so long as it neither ignores relevant mitigating evidence nor
considers improper aggravating factors. Id. We presume that the trial court considered all relevant
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2021 IL App (2d) 190851-Ufactors in determining the sentence, and that presumption will not be overcome without explicit
evidence in the record that the trial court did not consider applicable mitigating factors. Id. at 158.
¶ 19 In determining an appropriate sentence, relevant considerations include the nature of the
crime, the protection of the public, deterrence and punishment, and the defendant’s rehabilitative
potential. People v. Kolzow, 301 Ill. App. 3d 1, 8 (1998). The weight to be given to each factor in
aggravation and mitigation depends on the circumstances of the case. Id. We may not substitute
our judgment for that of the trial court merely because we might have weighed the pertinent factors
differently. Stacey, 193 Ill. 2d at 209. It is not our duty on appeal to reweigh the factors involved
in the court’s sentencing decision. People v. Coleman, 166 Ill. 2d 247, 261-62 (1995).
¶ 20 We find no abuse of discretion. Defendant concedes that the sentencing range for UPCS, a
Class 4 felony, is one to three years in prison (720 ILCS 570/402(c) (West 2016); 730 ILCS 5/5-
4.5-45(a) (West 2016)), and for DUI, a Class A misdemeanor, less than one year in jail (625 ILCS
5/11-501(c)(1) (West 2016); 730 ILCS 5/5-4.5-55(a) (West 2016)). Defendant further concedes
that he did not receive a sentence of incarceration or jail. Nevertheless, defendant contends that
the trial court abused its discretion in entering judgments of conviction on the offenses of UPCS
and DUI, rather than continuing the terms of probation and supervision. According to defendant,
the court failed to give proper weight to all the mitigating evidence, particularly his rehabilitative
potential, which he argues the trial court did not even mention. We find no error.
¶ 21 Here, the record clarifies that, in sentencing defendant, the trial court was well aware of all
the mitigating factors that defendant identifies on appeal. In addition to the information included
in the PSI, which the court referenced at the outset of the sentencing hearing, prior counsel argued
the mitigating factors at the sentencing hearing. At the hearing on the motion for reconsideration
of defendant’s sentence, when defense counsel again emphasized the mitigating evidence raised
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2021 IL App (2d) 190851-Uby prior counsel at the sentencing hearing, the court stated: “And I did consider all that.” The court
further stated:
“I could have sentenced you to three years in prison on that controlled substance, I could
have sentenced you to a year in jail on the DUI. I chose to do neither of those. Instead
straight convictions on both of those. So I did consider for mitigation purposes everything
and I just—I gave you the—what I would consider a very favorable sentence based upon a
very direct violation.”
¶ 22 The trial court’s comments rebut defendant’s arguments that the court failed to
appropriately consider the mitigating evidence. See People v. Malin, 359 Ill. App. 3d 257, 264
(2005) (court reviewing a defendant’s sentence may consider clarification by the trial court at the
hearing on a motion to reconsider the sentence).
¶ 23 Although defendant argues that “the court did not even mention [defendant’s] potential for
rehabilitation,” the court has no obligation to recite and assign value to each factor. People v.
Wilson, 2016 IL App (1st) 141063, ¶ 11. Indeed, the court’s decision to not impose a prison or jail
sentence reflects that the court gave weight to the mitigating evidence. In sentencing defendant,
the court emphasized the need for “consequences.” The court commented:
“This isn’t a situation of making poor choices once. It’s after me telling you—you getting
the benefit of court supervision and a 410 probation, you chose voluntarily to consume
alcohol and basically say I don’t care about my sentence, I don’t care about all that, I’m
going to do what I want to do.”
¶ 24 Thus, although continuing probation and supervision was certainly an option, it is clear
that, given all the information before it, the court believed that doing so was not appropriate.
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2021 IL App (2d) 190851-UDefendant’s arguments essentially ask us to substitute our judgment for that of the trial court in
reweighing the mitigating evidence—this we cannot do. See Coleman, 166 Ill. 2d at 262.
¶ 25 III. CONCLUSION
¶ 26 In light of the foregoing, we affirm the judgment of the circuit court of Boone County.
¶ 27 Affirmed.
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