People v. Miller ( 2020 )

2020 IL App (1st) 182395-UNo. 1-18-2395
Order filed June 8, 2020
First Division
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as
precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 13 CR 18844
)
EDWARD MILLER, ) Honorable
) Carol M. Howard,
Defendant-Appellant. ) Judge, presiding.
JUSTICE PIERCE delivered the judgment of the court.
Justices Hyman and Walker concurred in the judgment.
ORDER
¶1 Held: Defendant’s sentence was not excessive where the court appropriately considered
the mitigating and aggravating factors and the sentence was within the statutory
range.
¶2 Defendant Edward Miller was found guilty of aggravated criminal sexual assault and
sentenced to 15 years’ imprisonment. On appeal, this court vacated his conviction, entered
judgment on the offense of criminal sexual assault, and remanded for resentencing. People v.
Miller, 2018 IL App (1st) 150847-U. On remand, the trial court sentenced defendant to 11 years’
No. 1-18-2395
imprisonment for criminal sexual assault. Defendant appeals, arguing that this sentence was
excessive. We affirm.
¶3 Defendant was charged by indictment with five counts arising from an incident on July 17,
2012, including count I for aggravated criminal sexual assault, a Class X felony, against the victim,
S.M. (720 ILCS 5/11-1.30(a)(3), (d)(1) (West 2012)).
¶4 During a pretrial hearing on the State’s motion to admit proof of other crimes, L.I. testified
that defendant sexually assaulted her on multiple occasions in 1989, when she was eight years old.
The court permitted the State to call L.I. at trial to testify about one of those incidents, during
which defendant allegedly made L.I. masturbate him until he ejaculated.
¶5 At trial, S.M. testified that she was 13 years old in July 2012. She knew defendant since
she was five years old. Her older sister J.M. dated him in 2004. Defendant visited S.M.’s house
once a month and called the house approximately twice a week. S.M. thought of defendant “[l]ike
a big brother.”
¶6 On July 17, 2012, at around 6 p.m., defendant took S.M. and her brothers, A.M. and C.M.,
to Douglas Park. At first, S.M. and her brothers played basketball, but later S.M. went by herself
to the sprinklers. After 30 minutes, defendant told S.M. he would take everyone to the store for
popsicles. Defendant approached S.M. to put her in the vehicle, then “grabbed” S.M. on her upper
left arm “[f]orcefully,” which surprised her because defendant had never grabbed her forcefully
before.
¶7 S.M. entered the passenger seat of the vehicle and defendant drove four minutes to the
other side of the park. S.M. and defendant were the vehicle’s only occupants. Defendant stopped
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the vehicle near “a bunch of trees” and told S.M. to go to the back. When S.M. refused, defendant
threatened to “hit” her and balled his fist.
¶8 S.M. went to the bench seat in the back of the vehicle. Defendant laid her on her back,
kissed her, and touched her chest and vaginal areas. He then turned her on her stomach, pulled
down her pants, and pulled down his pants. Defendant inserted his penis into S.M.’s anus and
began “rocking back and forth.” S.M. was not sure if defendant ejaculated and did not know how
long defendant was behind her rocking back and forth. Defendant stopped and told S.M. that if she
told anyone what happened, he would “kill” her. He then drove back to pick up S.M.’s brothers.
S.M. did not tell them what happened at this time because she was “scared.”
¶9 When she arrived home, S.M. showered and did not tell anyone what happened. On July
18, 2012, she told her older brother A.M., who told their mother L.M. She called the police and
took S.M. to the hospital.
¶ 10 On cross-examination, S.M. stated that it hurt when defendant penetrated her, and she
stayed in the hospital overnight.
¶ 11 L.M. testified that defendant visited the house two or three times a month. On July 18,
2012, A.M. told L.M. what defendant did. L.M. called the police and took S.M. to the hospital.
The next day, L.M. took S.M. to stay at S.M.’s grandmother’s house, then returned home. The
following morning, L.M. found defendant sleeping alone in her son’s bed. She told A.M. to call
the police, who arrested defendant. L.M. later discovered damage to her downstairs door.
¶ 12 Nurse Cynthia Reimer testified that she treated S.M. on July 18, 2012. S.M. complained
that she was sexually assaulted when her assailant pushed her into the back seat of a vehicle, kissed
her, pulled her pants down, and “put his privates inside her.”
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¶ 13 Nurse Kindra Nelson testified that she treated S.M. that night, took vaginal and anal swabs,
and placed S.M.’s underwear, which had bodily fluid on it, in an evidence bag in a sexual assault
kit. S.M. was “distressed” during the examination. On cross-examination, Nelson confirmed that
medical records indicated “no tears” were found during S.M.’s treatment.
¶ 14 The State introduced stipulations regarding the chain of custody for the DNA evidence and
called a forensic scientist who testified that defendant “cannot be excluded” from contributing a
male DNA profile identified from the fluid on S.M.’s underwear. The State also entered a
stipulation that, if called, L.I. would testify consistent with her testimony at the pretrial hearing.
¶ 15 Defendant called Chicago police detective Patricia Sullivan, who testified that she
interviewed S.M. on July 20 or 21, 2012. After speaking to S.M., L.M., and A.M., Sullivan
suspended the investigation, but it was continued after DNA results were available. On cross-
examination, Sullivan testified that S.M. told her on July 20, 2012, that defendant penetrated her
anus with his penis and that fluid came out.
¶ 16 At closing argument, the State emphasized that S.M. viewed defendant as a “family
member” and trusted him, and defendant “took advantage of that,” leaving S.M. feeling “hurt,”
“confused,” and “betrayed.” The court found defendant guilty of count I for aggravated criminal
sexual assault, acquitted him of the remaining counts, and denied his motion for a new trial.
¶ 17 The presentence investigation (PSI) report showed that defendant was 53 years old at
sentencing. He left high school in the tenth grade to join the navy, was honorably discharged, and
earned his GED. Defendant had 21 prior convictions, including aggravated assault, burglary, and
10 convictions for theft or retail theft. He reported a good relationship with his parents and siblings,
a fair relationship with his wife, from whom he lived apart, and “close” relationships with his three
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children. Defendant worked in a restaurant from 2010 to 2013, and acknowledged a history of drug
use.
¶ 18 At sentencing, defense counsel noted that defendant joined the Idea Program in jail. In
aggravation, the State argued that defendant was “almost a family member” to S.M., who was only
13 years old when the crime occurred, while defendant was a “50-year-old” man. Counsel argued
that anal rape was “particularly brutal” under these circumstances. Defendant was a man S.M.
“trusted” and “loved,” and the crime would therefore “color [S.M.’s] thought process in future
relationships.” The prosecutor also cited defendant’s “extensive” criminal background and asked
for the maximum Class X sentence of 30 years.
¶ 19 The State read L.M.’s victim impact statement into the record. In the statement, L.M. said
defendant betrayed her family, and the situation had been “very hard” on S.M. and the rest of the
family. Following the incident, S.M. needed counseling from the family’s pastor and started
fighting with her siblings.
¶ 20 In mitigation, defense counsel cited defendant’s recent employment, remote criminal
history, relationship with his children, and his GED. Counsel asked for the minimum sentence of
six years.
¶ 21 The court stated that it reviewed the PSI and considered the factors in aggravation,
including the nature of the offense. It emphasized that defendant had a “good relationship” with
S.M.’s family, and his behavior represented a “violation of that trust.” The court acknowledged it
had to balance the aggravating factors against the mitigating factors of defendant’s employment
and “lack of any serious criminal offense immediately prior to this incident.” It sentenced
defendant to 15 years’ imprisonment and denied his motion to reconsider sentence.
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¶ 22 Defendant appealed, arguing, in relevant part, that the evidence was insufficient to establish
the elements of aggravated criminal sexual assault because there was no evidence that he
threatened or endangered the victim’s or another’s life during the assault. We vacated the
conviction, entered judgment on the offense of criminal sexual assault, a Class 1 felony (720 ILCS
5/11-1.20(a)(1), (b)(1) (West 2012)), and remanded for resentencing. See Miller, 2018 IL App
(1st) 150847-U.
¶ 23 At the resentencing hearing, the State adopted its aggravation arguments from the first
sentencing hearing. The prosecutor also cited the evidence of a similar prior crime in defendant’s
history and asked for the maximum sentence of 15 years’ imprisonment. In mitigation, defense
counsel argued that defendant’s sentence should be reduced because he did not perform “an overt
act that threatened [S.M.] during” the offense. Counsel further contended that S.M. suffered no
bruising or tearing, and that L.I.’s stipulated testimony did not deserve serious weight. Finally,
defense counsel cited defendant’s military service and emphasized his good behavior in prison,
where he had passed the adult basic education course and attained certificates of achievement as a
food handler and healthcare assistant. Counsel requested a sentence in the lower end of the
applicable range.
¶ 24 The court sentenced defendant to 11 years’ imprisonment, acknowledging that the charge
had been reduced from to a Class 1 felony with a new sentencing range of 4 to 15 years. The court
“carefully considered the factors in aggravation” which it set out in the first sentencing hearing,
emphasizing again that the crime involved a “betrayal of trust” and the potential for “psychological
trauma” to S.M. The court said that it also “must consider in mitigation” the rehabilitative steps
defendant took while incarcerated.
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¶ 25 Defendant filed a motion to reconsider sentence. At a hearing on the motion, defense
counsel argued that the new sentence was excessive in light of the lack of physical “trauma” to
S.M., defendant’s age, the remoteness of his criminal history, and his good behavior in prison.
Counsel also argued that 11 years was in the upper half of the Class 1 sentencing range, while the
original 15-year sentence was in the lower half of the Class X sentencing range. The court stated
it “carefully” considered the evidence when it issued the first sentence and had again “carefully
considered” the evidence and factors in aggravation and mitigation at resentencing. The court
determined that, even “putting aside” the “other crimes evidence,” an 11-year sentence was
appropriate “[b]ased on what happened to [the] victim” in the present case. Consequently, the court
denied defendant’s motion.
¶ 26 On appeal, defendant argues that his sentence was excessive because the trial court
imposed a sentence at the higher end of the statutory range although judgment had been entered
on a lesser charge. Additionally, defendant contends the court failed to properly weigh new
mitigating evidence and that no new aggravating factors existed.
¶ 27 The trial court must consider both the seriousness of the offense and the defendant’s
rehabilitative potential at sentencing. Ill. Const. 1970, art. I, § 11. A lower court’s sentencing
decision is reviewed for abuse of discretion on appeal and is granted considerable deference by the
reviewing court. People v. Alexander, 239 Ill. 2d 205, 212-13 (2010). This is because the
sentencing court is better situated to consider the “defendant’s credibility, demeanor, moral
character, mentality, environment, habits, and age.” People v. Snyder, 2011 IL 111382, ¶ 36.
¶ 28 The seriousness of a defendant’s crime is the most important consideration at sentencing.
People v. Cruz, 2019 IL App (1st) 170886, ¶ 51. The sentencing court will be presumed to have
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considered all relevant factors in mitigation, “absent some indication to the contrary other than the
sentence itself.” People v. Thompson, 222 Ill. 2d 1, 45 (2006). Mitigating factors such as
rehabilitative potential are not entitled to greater weight than aggravating factors. Alexander, 239
Ill. 2d at 214 (citing People v. Coleman, 166 Ill. 2d 247, 261 (1995)). The reviewing court should
not substitute its judgment for that of the sentencing court when weighing factors in mitigation and
aggravation. People v. Jones-Beard, 2019 IL App (1st) 162005, ¶ 21. Further, the trial court is not
required to reduce a sentence when a case is remanded for resentencing on a lesser charge. People
v. Raya, 267 Ill. App. 3d 705, 708-09 (1994).
¶ 29 In this case, criminal sexual assault is a Class 1 felony with a sentencing range of 4 to 15
years. 720 ILCS 5/11-1.20(b)(1) (West 2012); 730 ILCS 5/5-4.5-30(a) (West 2012). Defendant’s
11-year sentence is presumptively proper because it is within this range, and “will not be deemed
excessive unless it is greatly at variance with the spirit and purpose of the law or manifestly
disproportionate to the nature of the offense.” People v. Fern, 189 Ill. 2d 48, 54 (1999).
¶ 30 Defendant argues, however, that his sentence is excessive because the trial court did not
properly weigh his new mitigating evidence and the fact that his conviction for aggravated criminal
sexual assault had been vacated and judgment was entered on a lesser charge. At the resentencing
hearing, defense counsel informed the court that during defendant’s imprisonment he had furthered
his education and received certificates for his work in food sanitation and health care. In imposing
the new 11-year sentence, the court acknowledged that defendant’s charge had been reduced and
that his good behavior in prison constituted new mitigating evidence. At the hearing on defendant’s
motion to reconsider the new sentence, the court stated that it considered all the factors in
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mitigation and aggravation. It then upheld the sentence, emphasizing the potential for lasting
psychological damage to S.M. and the betrayal inherent in defendant’s conduct.
¶ 31 Based on this record, we find that that the trial court did not abuse its discretion in imposing
the 11-year sentence. The court stated that it considered all the mitigating factors and, contrary to
defendant’s argument, specifically acknowledged defendant’s new mitigating evidence and the
reduced charge.
¶ 32 Additionally, the court weighed the seriousness of defendant’s conduct as a significant
aggravating factor, which was within its discretion. See Cruz, 2019 IL App (1st) 170886, ¶ 51.
Defendant sexually assaulted a 13-year-old girl by manipulating his status as a trusted family
friend. A reasonable court could consider this conduct “serious,” and thus worthy of a significant
sentence. Defendant’s argument amounts to a request that this court substitute our judgment for
that of the lower court by giving less weight to the seriousness of defendant’s crime and more
weight to his mitigating evidence, which is improper. See Jones-Beard, 2019 IL App (1st) 162005,
¶ 21.
¶ 33 Defendant further argues that his sentence for criminal sexual assault is excessive because
it is in the higher end of the sentencing range for a Class 1 offense, while his initial sentence for
aggravated criminal sexual assault was in the lower end of the -sentencing range for a Class X
offense. On remand, the trial court acknowledged the lesser charge and imposed a new sentence
that was four years lower, despite not being required to reduce the sentence at all. See Raya, 267
Ill. App. 3d at 708-09. Given the circumstances discussed above, the new 11-year sentence was
not “manifestly disproportionate to the nature of the offense.” Fern, 189 Ill. 2d at 54. Therefore,
this argument must fail.
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¶ 34 Finally, we note that we cannot consider defendant’s argument regarding the lack of
recidivism amongst offenders in his age group because the report he cites was not part of the record
on appeal. See People v. Garcia, 2017 IL App (1st) 133398, ¶ 35 (“this court cannot consider
evidence that is not part of the record”); People v. Heaton, 266 Ill. App. 3d 469, 476 (1994).
¶ 35 As the trial court sufficiently considered the factors in mitigation and aggravation and the
sentence was within the statutory range, defendant’s sentence is affirmed.
¶ 36 Affirmed.
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