People v. Martin ( 2021 )

2021 IL App (2d) 200088-UNo. 2-20-0088
Order filed August 23, 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)(l).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Winnebago County.
)
Plaintiff-Appellee, )
)
v. ) No. 17-CF-1048
)
DEMARSHEY DANIEL MARTIN, ) Honorable
) Brendan A. Maher,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE HUDSON delivered the judgment of the court.
Justices McLaren and Zenoff concurred in the judgment.
ORDER
¶1 Held: In resentencing defendant for violation of probation imposed for an age-based sex
offense, the trial court did not consider improper factors in aggravation and gave
appropriate weight to mitigating evidence.
¶2 Defendant, Demarshey Daniel Martin, appeals from the judgment of the circuit court of
Winnebago County that revoked his probation and sentenced him to six years in prison. Defendant
asserts that the trial court considered improper factors in aggravation and failed to weigh mitigating
evidence. Because the court did not consider improper aggravating factors and properly
considered mitigating factors, we affirm.
2021 IL App (2d) 200088-U¶3 I. BACKGROUND
¶4 Defendant was indicted on one count of aggravated criminal sexual abuse based on his
being at least 5 years older than the victim, who was at least 13 years old but under 17 years old
(720 ILCS 5/11-1.60(d) (West 2014)). Because the offense was a Class 2 felony (720 ILCS 5/11-
1.60(g) (West 2014)), defendant faced a potential prison sentence of three to seven years (730
ILCS 5/5-4.5-35(a) (West 2014)).
¶5 Defendant pled guilty to the offense. The factual basis for the plea was that defendant
admitted having a sexual relationship with the victim and further admitted that she had given birth
to his child. Per the plea agreement, the trial court sentenced defendant to 48 months’ probation.
A condition of probation was that defendant would have no direct or indirect contact with the
victim.
¶6 The State subsequently filed a petition to revoke probation. Defendant admitted the
allegation that he had contact with the victim. The trial court scheduled the matter for resentencing
and ordered a presentence investigation report (PSI).
¶7 The PSI stated that defendant had three adjudications in his juvenile history. Defendant
was convicted as an adult of possession of drug paraphernalia, disorderly conduct, and resisting a
peace officer—all misdemeanors. Among the risk factors identified in the PSI were that defendant
“ha[d] a history of inappropriate relationships with minor females” and that he “displayed
significant criminal thinking during [the] presentence investigation.” Defendant was “not fully
cooperative” during the investigation. The PSI noted defendant’s admission that his sexual
relationship with the victim continued while he was on probation and that this resulted in another
pregnancy. The PSI further noted that defendant had orders of protection entered against him in
favor of several female minors, including the victim, based on physical violence or threats. In the
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2021 IL App (2d) 200088-Usummary section of the PSI, defendant was noted as having “a history of domestic violence and
inappropriate, intimate relationships with minor females as evidenced by Court records and Orders
of Protection.”
¶8 The State presented two witnesses at the resentencing hearing. Matt Urbanski, defendant’s
probation officer, testified that defendant was required to complete sex-offender counseling as a
condition of his probation. When defendant began missing sessions, the probation department
paid for his attendance. After this, defendant attended two more sessions and then stopped
attending altogether. He was eventually discharged from the program. Defendant also missed
four appointments with probation and failed to attend orientation meetings for an anger
management program. Urbanski also discovered that defendant was having prohibited contact
with the victim.
¶9 Stephanie Edwards1 testified that she interviewed defendant and prepared the PSI. She had
characterized defendant in the PSI as “not fully cooperative,” because he provided information
inconsistent with his probation file. Also, when she asked him about his relationship with his
siblings and the victim, he replied that it was none of her “goddamn business.” On cross-
examination, Edwards was asked why she wrote in the PSI that defendant “displayed significant
criminal thinking” during the presentence investigation. She explained that she did so because
defendant (1) admitted to continued contact with the victim, which he justified as “taking care of
his family”; (2) snickered when Edwards referred to the victim as “the victim”; and (3) did not
appear remorseful about the involvement of the Department of Children and Family Services’
(DCFS) in the case.
1
She is identified by that name in court, but the name on the PSI is “Bethany Edwards.”
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2021 IL App (2d) 200088-U¶ 10 Defendant testified that he had a very stressful childhood, enduring physical and mental
abuse. His father would often beat him with a paddle, a belt, or his hands. The Department of
Children and Family Services removed him from the custody of his mother. He explained that he
meant no disrespect when he told Edwards that his relationship with his siblings was none of her
business. Defendant had been a licensed certified nurse’s assistant and was paid by the State to
care for elderly family members. Defendant admitted that he was the father of the victim’s two
children and stated that he wanted to be an active father to both. He denied fathering any other
children. According to defendant, he missed the sex-offender counseling sessions because of
transportation and financial issues. Defendant asserted that he had become more patient and
calmer since being on probation.
¶ 11 On cross-examination, defendant admitted having sexual intercourse with the victim while
on probation and knowing that his probation conditions prohibited such contact. He further
admitted that several individuals had obtained orders of protection against him. He explained that
one of the individuals, a male, tried to assault him sexually, and he had to defend himself.
¶ 12 In imposing sentence, the trial court stated that it considered the factual basis for the
original plea, the PSI, and the testimony of Urbanski, Edwards, and defendant. The court further
considered the aggravating and mitigating factors and defendant’s conduct while on probation.
The court noted that had defendant not agreed to the original probation sentence, the court could
have imposed a prison sentence because there was “an eight year age difference” between
defendant and the victim. In response to an argument by defense counsel, the court stated that “the
point” was not that defendant’s sexual relations with the victim were not violent and did not cause
her physical harm. “The point,” rather, was that a “23-to 24-year-old man, grown man *** should
know better.” The court gave defendant credit for accepting responsibility but found it “difficult
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2021 IL App (2d) 200088-Uto comprehend the idea that a 23- or 24-year-old man would not know that a 14 year old is a 14
year old or that that question should not or could not have been asked.” The court stated that, more
importantly, defendant was specifically told not to have contact with the victim and yet he again
had sexual contact with her when he was 25 or 26 years old and she was under 18. This contact
resulted in “creat[ion] [of] a new life.” Besides defendant’s violation of the no-contact condition,
the court noted that defendant did not complete sex-offender counseling.
¶ 13 The trial court emphasized that this case “really comes down to individual choices and
consequences of those choices.” The court noted that defendant chose to have sex with a 15-year-
old when he was 23 years old, resulting in the original charge, and that he continued to have sex
with her despite a probation condition prohibiting such contact. The court added that defendant
had sex with a girl eight years younger than himself, without any form of birth control, and brought
“life into the world at a point in time when [defendant] was underemployed or barely employed.”
The court noted that birth control is available “on every corner” and is “free to almost everybody.”
In the court’s opinion, neither defendant nor the victim was “in any position to be bringing life
into the world and then not being in a position to support it.” The court further commented that
defendant should have known that, until he was “employed, *** educated, [and] steady and
stable,” he “[did not] [have] any business” having a child with a girl eight years his junior who
herself was in no position to support the child. The court added, “Choice, consequence.
Unprotected sex, life you can’t support.” Those were “nobody[‘s] choices but [defendant’s]. The
court noted that defendant displayed a pattern of having sex with females who were minors or
significantly younger than him. He also showed a “repeated pattern of making really bad
decisions,” particularly while being on probation.
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2021 IL App (2d) 200088-U¶ 14 The trial court noted that it had considered the entire record and found that a prison sentence
was necessary to protect the public, particularly female minors. The court further found that
another sentence of probation would deprecate the seriousness of defendant’s conduct and be
inconsistent with the ends of justice. Thus, the court imposed a six-year prison sentence.
¶ 15 Defendant filed a motion to reconsider the sentence. He challenged the amount of time
credited for time served. He also asserted that the trial court did not give proper weight to
mitigating factors, including that he had never been sentenced to prison before. At the hearing on
the motion, the court rejected the mitigation argument, referring to its prior “oral ruling and
findings.” Defendant, in turn, filed this timely appeal.
¶ 16 II. ANALYSIS
¶ 17 On appeal, defendant contends that his sentence was excessive because the trial court
(1) improperly relied on an element of the offense to aggravate the sentence, (2) relied on other
irrelevant and improper factors in aggravation, and (3) failed to give any weight to the mitigating
evidence.
¶ 18 A trial court has broad discretion in imposing a sentence, and its sentencing decisions are
entitled to great deference. People v. Alexander, 239 Ill. 2d 205, 212 (2010). Sentences within
the permissible statutory range may be deemed an abuse of discretion only where they are greatly
at variance with the spirit and purpose of the law or manifestly disproportionate to the nature of
the offense. Alexander, 239 Ill. 2d at 212. The trial court’s responsibility is to balance the relevant
factors and make a reasoned decision as to the appropriate punishment in each case. People v.
Latona, 184 Ill. 2d 260, 272 (1998). The trial court has a far better opportunity to weigh such
factors as the defendant’s credibility, demeanor, general moral character, mentality, social
environment, habits, and age. Alexander, 239 Ill. 2d at 213. A sentence must be based on the
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2021 IL App (2d) 200088-Uparticular circumstances of each case and depends on many factors, including a defendant’s
criminal history and the need to protect the public and deter crime. People v. McGee, 2020 IL App
(2d) 180998, ¶ 8. The reviewing court must not substitute its judgment for that of the trial court
merely because it would have weighed the sentencing factors differently. Alexander, 239 Ill. 2d
at 213.
¶ 19 We first address defendant’s contention that, because defendant’s and the victim’s ages
were an element of the offense, it was improper for the trial court to consider their ages in
aggravation. In doing so, we initially note that defendant did not raise this objection at sentencing
or in his motion to reconsider sentence. See People v. Hillier, 237 Ill. 2d 539, 544 (2010).
Defendant, in his reply brief, asserts that the issue is reviewable as plain error. To establish plain
error, it must be shown that (1) the evidence at the sentencing hearing was closely balanced, or
(2) the error was so egregious that the defendant was denied a fair sentencing proceeding. Hillier,
237 Ill. 2d at 545. Defendant argues that the trial court’s error was so egregious that it denied him
his right to a fair proceeding. However, if there is no error, there can be no plain error. People v.
Piatkowski, 225 Ill. 2d 551, 565 (2007). We hold that the trial court did not err.
¶ 20 It is well established that a trial court may not consider a factor inherent in the offense as
an aggravating factor in sentencing. People v. Phelps, 211 Ill. 2d 1, 11-13 (2004); People v.
Abdelhadi, 2012 IL App (2d) 111053, ¶ 9. The principle applies, of course, when age is an element
of the offense. See People v. White, 114 Ill. 2d 61, 66 (1986) (“We hold that because a necessary
element of a conviction for aggravated battery of a child is that the victim is less than 13 years of
age, the general fact that the victim is a child under the age of 13 years should not be considered
as an aggravating factor in sentencing for this offense.”). However, the trial court may properly
consider the nature and circumstances of the offense, including the nature and extent of each
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2021 IL App (2d) 200088-Uelement of the offense as committed by the defendant. People v. Saldivar, 113 Ill. 2d 256, 268-69
(1986); People v. Brewer, 2013 IL App (1st) 072821, ¶ 55. The rule that a court may not consider
a factor inherent in the offense is not meant to be applied rigidly, because sound public policy
dictates that a sentence be appropriate to the circumstances of each offense. People v. Spicer, 379
Ill. App. 3d 441, 468 (2007). One of the relevant sentencing factors to be considered is the age of
the defendant. Saldivar, 113 Ill. 2d at 268.
¶ 21 Here, although the trial court referred several times to defendant’s and the victim’s ages, it
did so in the context of noting that, because defendant was eight years older than the minor victim,
he was better suited to make the right choice about their having sex. The court emphasized that
defendant, who was in his mid-20s, not only incurred a criminal charge for having sex with a
minor, but he continued to have sex with her after receiving probation and being specifically
prohibited from having contact with her. The court further found a need to protect other potential
young female victims from the defendant’s poor choices. Accordingly, the court did not merely
rely on defendant’s and the victim’s ages. Rather, the court relied on their ages as they related to
the particular behavior of defendant in this case and the need to protect the public. Thus, the court
did not commit error, let alone plain error.
¶ 22 We next address defendant’s contention that the trial court improperly considered in
aggravation his poverty and that he presumably engaged in unprotected sex with the victim. Again,
because defendant never raised this issue below, we apply the plain-error rule. For the following
reasons, we conclude that there was no error, let alone plain error.
¶ 23 Although the trial court mentioned several times that defendant was in no position to be
fathering children with the minor victim, the court was not singling out the failure to use birth
control, as if the court would have condoned defendant’s conduct if he had taken precautions. The
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2021 IL App (2d) 200088-Uaim of the court’s criticism was defendant’s victimization of female minors through sexual
relationships. The court emphasized defendant’s pattern of poor choices, exemplified in the
current case by his repeating, while on probation, the same conduct that led to the underlying
criminal charge. Likewise, in mentioning defendant’s inability to support a child, the court found
that the financial situation worsened the victimization. Under the particular circumstances here, it
was proper for the court to rely on defendant’s conduct as an aggravating factor. Thus, the court
committed no error.
¶ 24 Lastly, we address defendant’s assertion that the court did not give any weight to the
mitigating evidence. Defendant raised this issue in his motion to reconsider sentence and, thus,
preserved it for appeal.
¶ 25 Where mitigating evidence is presented, we presume that the trial court considered it absent
some indication to the contrary, aside from the sentence itself. People v. Sauseda, 2016 IL App
(1st) 140134, ¶ 19. The trial court is not obligated to impose a sentence below the maximum
merely because mitigating factors were present. Sauseda, 2016 IL App (1st) 140134, ¶ 19.
¶ 26 Here, the trial court was presented with mitigating evidence, which defendant recites in his
briefs. More importantly, the court stated that it considered all aggravating and mitigating factors
in imposing the sentence. Indeed, the court expressly credited defendant for accepting
responsibility. The mere fact that the sentence was one year shy of the maximum does not show
that the court did not consider the mitigating evidence. Absent some indication in the record that
the court ignored the mitigating evidence, we presume that the court considered it.
¶ 27 For the foregoing reasons, we hold that the trial court did not abuse its discretion in
sentencing defendant to six years in prison.
¶ 28 III. CONCLUSION
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2021 IL App (2d) 200088-U¶ 29 For the reasons stated, we affirm the judgment of the circuit court of Winnebago County.
¶ 30 Affirmed.
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