People v. Dillon , 2024 IL App (4th) 230261-U ( 2024 )

NOTICE 2024 IL App (4th) 230261-UThis Order was filed under
FILED
NO. 4-23-0261 May 7, 2024
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
JILL A. DILLON, ) No. 22CF96
Defendant-Appellant. )
) Honorable
) Jennifer H. Bauknecht,
) Judge Presiding.
JUSTICE DOHERTY delivered the judgment of the court.
Justices Zenoff and Knecht concurred in the judgment.
ORDER
¶1 Held: The circuit court did not err in denying defendant’s motion to withdraw her guilty
plea or in the sentence it imposed. Defendant’s conviction in count II runs afoul of
the one-act, one-crime rule and is therefore vacated.
¶2 Pursuant to a negotiated agreement, defendant Jill A. Dillon pleaded guilty to
financial exploitation of an elderly person (720 ILCS 5/17-56(a) (West 2022)) (count I) and
unlawful use of a debit card (id. § 17-36(i)) (count II). The circuit court imposed concurrent
sentences of five years and ordered restitution. It subsequently denied defendant’s motion to
withdraw her guilty plea. On appeal, defendant argues that: (1) she should be allowed to withdraw
her guilty plea because the court failed to admonish her that she may be required to pay restitution
and, in the alternative, counsel was ineffective for failing to preserve this argument; (2) her
conviction for unlawful use of a debit card violates one-act, one-crime principles; and (3) the
sentence imposed was excessive and based on the sentencing judge’s personal animus towards her.
For the reasons that follow, we affirm in part and vacate the conviction in count II.
¶3 I. BACKGROUND
¶4 In 2022, defendant worked for Teresa Boward as a caregiver. The State charged
defendant in a two-count information with financial exploitation of an elderly person and unlawful
use of a debit card. Regarding the exploitation charge, the State alleged that between March 1,
2022, and April 8, 2022, defendant obtained control over Boward’s property by deception while
standing in a position of trust or confidence. The unlawful use charge alleged that between March
1, 2022, and April 8, 2022, defendant obtained Boward’s debit card through deception and used
the card with an intent to defraud.
¶5 Defendant reached a plea agreement with the State under which she would plead
guilty to both charges in exchange for the State’s agreement that it would not recommend a
sentence in excess of three years’ imprisonment. The circuit court admonished defendant as to,
among other things, the range of penalties that she faced. Specifically, although the State was
confined in its sentencing recommendation, the court stated that it was able to impose the
maximum term of five years in the Illinois Department of Corrections and a fine of up to $25,000.
The court did not mention restitution could be a part of its order.
¶6 The State provided the following factual basis:
“From March 1st to April 28th in 2022, this Defendant utilized assets of a
person, an elderly person, Teresa K. Boward ***, in that she obtained property from
Teresa Boward consisting of United States currency; did so by use of a debit card
that was used without consent.”
Defendant stipulated to the factual basis and the circuit court accepted the guilty plea.
¶7 The case proceeded to sentencing. The State offered that “the amount of restitution
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is agreed between the parties,” and that “[t]here will be an order for [$]1,500.” When the circuit
court asked defense counsel whether she agreed with the representation that there would be an
agreed order calling for $1500 in restitution, she replied, “Yes, your Honor.” The court then heard
victim impact statements from Boward’s daughter and daughter-in-law. Defendant made a
statement in allocution, maintaining her innocence and that Boward had given her permission to
use the debit card. Defendant stated she had a gambling problem she was attempting to address
through counseling and was also dealing with medical issues. Further, she accused Boward’s
daughter of not tending to her mother’s needs and only wanting Boward’s money, which Boward
did not want to give her.
¶8 The circuit court sentenced defendant to two concurrent terms of five years’
imprisonment and restitution in the amount of $1500. In imposing the sentences, the court stated
that it considered “the defendant’s statement in allocution, and also the victim impact statements,”
as well as deterrence, defendant’s prior criminal record, the very serious nature of the charges, and
the complete lack of any remorse shown by defendant. In explaining its reasoning for the sentence
the court explained:
“THE COURT: So, here, I normally try to go through this in a fairly
methodical way and address the factors that are present in aggravation, the factors
present in mitigation, and any other factors that stand out in my mind. And I’m
trying to do that this time, but I am really just almost speechless over that statement
in allocution by the defendant.
This is not about just you; and, quite frankly, I don’t believe anything that
comes out of your mouth. You show up today for your sentencing hearing for the
first time with a shoulder brace and a neck brace; I think it’s a ruse on your behalf.
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I do have a letter that would confirm that you have some shoulder injury. I have
nothing to confirm any neck injury; so, I don’t believe one word you’re telling me
about your neck injury. And it appears to be degenerative changes. And it actually,
Defendant's Exhibit 3, which appears to be the x-ray, indicates, if there is concern
for rotator cuff tendon tear, consider MRI of the right shoulder. So, I don’t believe
that there’s any serious medical condition. I would note that the [pre-sentence
investigation report] contains a number of other alleged medical conditions;
however, there is absolutely no proof of any of that, no verification from anyone,
and I have a chronic liar and thief sitting in front of me that I need to sentence today.
And it’s upsetting I guess because, despite everything that has happened, I
have the victims present in court, they gave very heartfelt, sincere victim impact
statements that were just a small glimpse into what pain, heartbreak, anguish the
actions of [defendant] caused their family, not just in terms of the theft itself, which
I suppose in the grand scheme of things is kind of, class 3 felony, but that doesn’t
appear to be the issue for the victims, it’s how that affected their loss of their mother
and their opportunity to mourn appropriately and as a family. Yet the defendant just
completely disregards that and makes up some story that in fact the only person
suffering here is the defendant and she was carrying out the wishes of their mother.
No proof whatsoever of any of this, none; everything you’ve said, I don’t believe.
I don’t believe condition of the house as you describe it, I don’t believe the
condition of the care as you describe it, I don’t believe any of that. It’s all very
self-serving, nothing but excuses, empty words; there’s a complete lack of remorse,
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and you’re not accepting any responsibility for anything that you’ve done here to
effect this family.
*** But I have to say that the manner in which [defendant] has chose to
proceed in regards to her statement in allocution and comments to probation is a
first, just, I really don’t even know what to say. I feel for the victims having to listen
to what you just said as if their mother is up in heaven worried about you. There
should never be a situation where we rely on our friends to help us in our time of
need and then they take advantage of our elderly people; they do need to be
protected. And I’m pretty sure that there aren’t any of our elderly parents who,
relying on their Social Security income only, would rather have a stranger gamble
their money away than use it to pay for their own living needs or help to pay for
their funeral expenses. I just, that is so incredible for you to say, that I believe you
are one of the worst criminals I’ve ever seen in this courtroom.
THE DEFENDANT: Wow.
THE COURT: Yeah, wow is right. You sit there and you be in shock at how
arrogant you are, how disrespectful you are to the victims of this family.
And your prior record is a factor as well, clearly a pattern of theft, theft,
theft, theft. For you not to have any remorse whatsoever, zero, and to sit there and
act like this is all you and that you did what you needed to do to help and then you
come in here and shake your head at me and show up in a sling for the first time
with a neck brace on as if we’re all supposed to feel sorry for you.
This is a serious matter. I have a very insincere defendant in front of me;
and I am pretty well convinced that if given the chance tomorrow, you would do
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the same thing. And sadly, I understand the concern the family has over the
coincidence of the timing of Ms. Boward’s passing; I understand the concern you
have. To be clear for the record, I am not drawing a link or considering that as a
factor in aggravation, but I can understand and appreciate the concern the family
has.
So, there are very strong aggravating factors in this case, deterrence, the
defendant’s prior record, very serious nature of the charges and the complete lack
of any remorse on the part of [defendant] and to the contrary, piling on excuses and
alleged medical issues to try to garner sympathy from this Court on the day of her
sentencing. That puts the whole system just in a bad light; I’m offended that you
would even think that you could do something like that.
Here, I believe without any doubt, that a term of probation would deprecate
the serious nature of the charges and be inconsistent with the ends of justice. I
believe that this defendant would take the opportunity to do this again if given that
chance. This is a class 3 felony. The range is two to five years. I recognize what the
State has recommended; but in this particular situation, given the very strong
factors, I think, and I don’t do this very often, but I think a maximum sentence is
appropriate and I am going to sentence the defendant to five years in the Illinois
Department of Corrections on Counts 1 and 2. That’s not much of a sentence to be
honest with you, because you get 50 percent good time, and they will run concurrent
with each other. So, I’ll tell you, I wasn’t leaning towards five years when I walked
in here, I actually was leaning towards three years; and then you made just the most
grotesque statement in allocution, and hearing the arguments of the attorneys and
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hearing the victims read the victim impact statements, I absolutely believe a
maximum sentence, based upon your prior record and deterrence, is appropriate
here. *** I will impose the agreed-upon restitution in the amount of $1,500.”
¶9 Defendant filed a motion to withdraw her guilty plea arguing that she was innocent
of the charges and wished to proceed to trial. Alternatively, defendant requested that the circuit
court reduce her sentence due to the fact the sentence was unduly harsh and because defense
counsel failed to produce evidence at the sentencing hearing. The court denied the motion, finding
the sentence was within the applicable range and any mitigating factor was “overcome” by those
in aggravation.
¶ 10 This appeal followed.
¶ 11 II. ANALYSIS
¶ 12 On appeal, defendant argues that: (1) she should be allowed to withdraw her guilty
plea where the circuit court failed to admonish her regarding restitution and, in the alternative,
counsel was ineffective for failing to preserve this argument; (2) her conviction for unlawful use
of a debit card violates one-act, one-crime principles; and (3) the sentence imposed was excessive
and based on the sentencing judge’s personal animus towards her evidenced by comments at the
sentencing hearing.
¶ 13 A. Restitution
¶ 14 We first address defendant’s claim that she should have been allowed to withdraw
her guilty plea because the circuit court failed to admonish her before she pleaded guilty that she
could be liable for restitution. Defendant’s claim amounts to an argument that the court did not
substantially comply with Illinois Supreme Court Rule 402(a) (eff. July 1, 2012).
¶ 15 Rule 402 was adopted to ensure compliance with due process requirements that a
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guilty plea be affirmatively shown to be entered into voluntarily and intelligently. People v. Fuller,
205 Ill. 2d 308, 322 (2002) (citing People v. Burt, 168 Ill. 2d 49, 64 (1995), citing Boykin v.
Alabama, 395 U.S. 238, 242 (1969)). Rule 402(a) requires, before accepting a plea of guilty, the
circuit court must admonish the defendant of “the minimum and maximum sentence prescribed by
law.” Ill. S. Ct. R. 402(a)(2) (eff. July 1, 2012). Generally, only substantial compliance with Rule
402(a) is necessary. People v. Dougherty, 394 Ill. App. 3d 134, 138 (2009). The failure to
admonish a defendant in conformity with the rule does not in itself establish a basis to reverse the
circuit court. Rather, defendant must show the error in admonishments resulted in the denial of
real justice or amounted to prejudice. Id. at 139.
¶ 16 Normally, whether the circuit court substantially complied with Rule 402 is
reviewed de novo. People v. Chapman, 379 Ill. App. 3d 317, 326 (2007). However, defendant
acknowledges that she failed to preserve this claim in the court below and requests plain error
review. See People v. Enoch, 122 Ill. 2d 176, 186 (1988) (finding that to preserve an issue for
review, a party must raise the issue at trial and in a written posttrial motion). Before proceeding to
plain error review, we note that defendant in her briefing asks for review under the second prong
of plain error. Under the second prong, we determine whether the “ ‘error is so serious that it
affected the fairness of the defendant’s trial and challenged the integrity of the judicial process,
regardless of the closeness of the evidence.’ ” Galarza, 2023 IL 127678, ¶ 45 (quoting People v.
Piatkowski, 225 Ill. 2d 551, 565 (2007)). The inherent contradiction in defendant’s assertion that
this claim is amenable to second prong plain error review is that, in the second prong, prejudice is
presumed (People v. Williams, 2022 IL 126918, ¶ 55), but in order to establish insufficient
admonishments that require reversal, defendant must show the denial of real justice or prejudice.
Dougherty, 394 Ill. App. 3d at 139. This inherent contradiction instructs our conclusion that
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defendant’s claim is not amenable to review under the second prong of plain error.
¶ 17 At oral arguments, defendant seemingly acknowledged our unexpressed concerns
of evaluating this claim under the second prong of plain error by declaring there was authority that
supported the review of this claim under the first prong of plain error and as ineffective assistance
of counsel. Nonetheless, even if we continued our plain error review under the first prong,
defendant’s claim does not require reversal. Here, the State concedes the circuit court rendered
imperfect admonishments in that the court failed to give any admonishments that defendant would
be liable for restitution upon her plea of guilty. Nonetheless, the State argues that this error does
not amount to plain error as defendant suffered no prejudice. Having found the court omitted
admonishments required by the rule, we must determine whether defendant suffered prejudice as
a result of the missing admonishment.
¶ 18 Defendant cites People v. Snyder, 2011 IL 111382, as support for the argument she
should have been allowed to withdraw her guilty plea. In Snyder, the circuit court accepted the
defendant’s negotiated guilty plea and failed to admonish the defendant about the possibility of a
restitution order or that she could face fines. Id. ¶ 7. Our supreme court found it was undisputed
the circuit court failed to substantially comply with Rule 402(a)(2) (id. ¶ 20) and pursuant to
People v. Seyferlich, 398 Ill. App. 3d 989 (2010), the appropriate remedy for the failure to
admonish the defendant about the possibility of being ordered to pay restitution was to allow her
the opportunity to withdraw her guilty plea (id. ¶ 31).
¶ 19 We find Snyder is distinguishable from the case at bar. See People v. Palmer, 104
Ill. 2d 340, 345-46 (1984) (“[T]he precedential scope of a decision is limited to the facts before
the court.”). In Snyder the sentencing court failed to admonish defendant about either fines or
restitution; in other words, defendant was not apprised of any financial consequence which might
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flow from pleading guilty. Here, on the other hand, defendant was admonished that if she pleaded
guilty, she could face monetary sanctions in the form of fines in an amount up to $25,000.
¶ 20 We find instructive two pre-Snyder decisions addressing situations similar to the
one in this case. In People v. Thompson, 375 Ill. App. 3d 488, 490 (2007), the defendant entered
into a partially negotiated plea agreement. On appeal, the defendant argued that although he was
admonished he could face up to a $25,000 fine, he was not told he could be ordered to pay
restitution. Id. The sentencing court subsequently imposed an order of restitution for $1242.69. Id.
at 494. The First District affirmed, finding that the failure to admonish defendant about the
possibility of restitution did not result in prejudice because he was admonished he could face
monetary penalties in the amount of $25,000 and the imposed monetary penalty including
restitution fell below that amount; thus, the defendant did not receive a more onerous sentence
than set forth in the sentencing court’s admonishments. Id. at 494. Accordingly, the imperfect
admonishments did not deny the defendant real justice. Id.¶ 21 The logic expressed in Thompson was followed by the Second District in People v.
Petero, 384 Ill. App. 3d 594 (2008). In Petero, the sentencing court similarly admonished the
defendant of a possible monetary fine as a part of his sentence following a negotiated guilty plea
agreement but failed to mention restitution could also be a component of the sentence imposed. Id.
at 596-97. On appeal, it was determined that the defendant did not suffer prejudice from the
imposition of restitution absent a specific admonishment where the combined total of monetary
fines and fees fell below the amount the defendant was informed he could be liable. Id. at 600. As
a result, he did not receive a more onerous sentence and he was not denied real justice. Id.¶ 22 We believe that Thompson and Petero are relevant and persuasive here. Defendant
was admonished that a possible financial consequence of her plea was a fine up to $25,000. The
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amount imposed was substantially less, and it took the form of restitution rather than a penalty.
But the logic of Thompson and Petero is sound. Because restitution was ordered in an amount less
than that which defendant was told could be imposed as a fine, she was not denied real justice as
a result or otherwise prejudiced by the lack of an admonition concerning possible restitution.
¶ 23 Defendant argues against this conclusion, stating there is a clear distinction between
fines and restitution as evidenced by statute and caselaw. See 730 ILCS 5/5-5-6, 5-9-1 (West
2022); People v. Copeland, 2020 IL App (2d) 180423, ¶ 15 (“[R]estitution is not a cost, fine, or
fee.”). We agree with the distinction but, in this context, are not persuaded that there is a difference.
It is true, as defendant notes, that the circuit court would have been required to consider defendant’s
“financial resources and future ability” to pay when “determining the amount” of a fine (730 ILCS
5/5-9-1(d)(1)), but the amount of restitution here was stipulated to by defendant: $1500.
Furthermore, even if the court is not required to consider defendant’s ability to pay when restitution
is imposed, her ability to pay must be considered at the time a restitution order is enforced. See
People v. Edwards, 135 Ill. App. 3d 671, 679 (1985). Defendant’s attempt to conjure a difference
between fines and restitution that is relevant to this context is entirely unpersuasive. Finally, and
more fundamentally, any difference between a fine and restitution does not automatically result in
the conclusion that prejudice or a denial of real justice is manifest from the absence of a specific
admonition regarding restitution. See People v. Whitfield, 217 Ill. 2d 177, 193 (2005) (noting that
a sentencing court’s failure to admonish a defendant concerning a term of mandatory supervised
release (MSR) was not of a constitutional nature where the sentence plus the term of MSR fell
below the maximum sentence set forth in the admonishments).
¶ 24 Having found defendant did not suffer prejudice from the imperfect but
substantially compliant admonishments, she also cannot establish ineffective assistance of counsel
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for failing to preserve the issue. See People v. Glasper, 234 Ill. 2d 173, 216 (2009) (finding the
defendant could not meet the requirements to show ineffective assistance of counsel in the absence
of plain error). Accordingly, we must honor defendant’s procedural forfeiture.
¶ 25 B. One-Act, One-Crime
¶ 26 Next, we address defendant’s contention that because the charge of financial
exploitation of an elderly person was based on the same actions giving rise to the charge of the
unlawful use of a debit card (including the aggravating factor of doing so against an elderly
person), the unlawful use of a debit card conviction should be vacated.
¶ 27 “The one-act, one-crime rule prohibits convictions for multiple offenses that are
based on precisely the same physical act.” People v. Smith, 2019 IL 123901, ¶ 13. Our analysis of
this issue requires that we first determine “ ‘whether a defendant’s conduct consisted of separate
acts or a single physical act.’ ” People v. Stull, 2014 IL App (4th) 120704, ¶ 42 (quoting People v.
Rodriguez, 169 Ill. 2d 183, 186 (1996)). “An ‘ “[a]ct” ’ is defined as ‘any overt or outward
manifestation which will support a different offense.’ ” People v. May, 2021 IL App (4th)
190893, ¶ 51 (quoting People v. King, 66 Ill. 2d 551, 566 (1977)). Even where the challenge to a
violation of the rule was forfeited by the defendant, as it was here, such a violation is reversible
error under the second prong of the plain-error doctrine. Smith, 2019 IL 123901, ¶ 14.
¶ 28 Defendant points out that the mittimus entered by the circuit court does not specify
whether defendant pleaded guilty to financial exploitation of an elderly person pursuant to
subsection (a)(1) (requiring deception or intimidation) or (a)(2) (requiring only illegal use of asset
or resource). See 720 ILCS 5/17-56(a)(1), (a)(2) (West 2022). However, because the State’s factual
basis did not include a proffer as to deception or intimidation, defendant concludes judgment must
have been entered on subsection (a)(2). The State does not contest defendant’s interpretation of
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the mittimus. A review of the charging instrument reveals that the State alleged defendant
committed financial exploitation by “knowingly and by deception” obtaining control over the
victim’s property. Despite this language in the charging instrument, the State abandoned this view
during the plea hearing, where it did not proffer that defendant engaged in deception. Therefore,
we find defendant’s interpretation of the mittimus reasonable and continue our analysis under the
assumption defendant pleaded guilty to financial exploitation of an elderly person pursuant to
subsection (a)(2). 720 ILCS 5/17-56 (a)(2) (West 2022).
¶ 29 Examining both the charging instrument and the factual basis stated during the plea
hearing, we observe that the State alleged a single time period for both offenses, concluding that
defendant obtained property from the victim “consisting of United States Currency [and] did so by
use of a debit card that was used without consent.” Using the debit card to obtain cash is a series
of connected acts that the State chose to treat as a series of offenses. However, “[f]or the State to
properly obtain multiple convictions for connected acts that might be treated as a series of offenses,
the State must apportion the acts to the offenses in the charging instrument and at trial.” People v.
Williams, 384 Ill. App. 3d 327, 340 (2008). The State failed to apportion defendant’s conduct
between the two offenses in the charging instrument, and the factual basis also shows the two
convictions were based on the same conduct.
¶ 30 The State contends that defendant’s conduct consisted of separate acts where the
offense of financial exploitation of an elderly person includes standing in a position of trust with
an elderly person, which it contends was an “act” sufficiently separate from obtaining the victim’s
property to warrant multiple convictions. The State cites Smith in support of this position, where
our supreme court explained “that a person can be guilty of two offenses when a common act is
(1) part of both offenses or (2) part of one offense and the only act of the other offense.” Smith,
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2019 IL 123901, ¶ 18. The Smith court noted that it had previously provided several examples
where a common act would support multiple convictions. Smith, 2019 IL 123901, ¶ 19. The court
reviewed pertinent cases in People v. Coates, 2018 IL 121926, ¶ 16:
“People v. McLaurin, [184 Ill. 2d 58, 105 (1998)] (holding that multiple convictions
for intentional murder and home invasion were proper because, although both
involved the same physical act of setting a fire, the physical act of entering the
dwelling of the victim was a separate act that supported the home invasion offense);
People v. Marston, [353 Ill. App. 3d 513, 519 (2004)] (holding that multiple
convictions for home invasion and aggravated battery were proper despite the
common act of striking the victim with a pole where the defendant’s entry into the
home was a separate act that supported the home invasion conviction); [People v.]
Lobdell, [121 Ill. App. 3d 248, 252 (1983)] (holding that multiple convictions for
residential burglary and home invasion were proper because, despite the one act of
entry into the victim’s home which served as the basis for both convictions, the
home invasion offense involved an additional act of intentional injury and,
therefore, the two offenses were not carved from precisely the same physical act);
People v. Tate, [106 Ill. App. 3d 774, 778-79 (1982)] (holding that multiple
convictions for home invasion and aggravated battery were proper despite the
common act of stabbing the victim where the unlawful entry was a separate act
applicable only to the home invasion offense).”
¶ 31 We are unpersuaded by the State’s argument. Standing in the position of trust to an
elderly person is not a physical act that can support a separate offense under the one-act, one-crime
rule. Unlike Smith, where punching the victim and taking the bank bag served as the separate overt
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acts needed to support each charge (Smith, 2019 IL 123901, ¶ 20), standing in a position of trust
is not an overt act or outward manifestation that can remediate the State’s reliance below on only
the use of the debit card to obtain currency. To the contrary, standing in the position of trust to
another appears more akin to an individual’s status as a felon rather than an overt act. As the court
in Coats explained “[a] felon’s status is not an ‘act’ but, rather, a state of being,” and a defendant’s
status does not factor into our analysis at this point of our review for a violation of the one-act,
one-crime rule. Coats, 2018 IL 121926, ¶ 27. Standing in the position of trust to another is simply
a state of being, not a separate physical act.
¶ 32 Our research does not reveal, and the State does not direct us to, any authority that
would support its argument. Rather, our review of this argument has led us to People v. Bailey,
409 Ill. App. 3d 574 (2011), where the defendant was charged, convicted, and sentenced on four
counts of financial exploitation of an elderly person and two counts of theft. On appeal the State
“rightly” conceded the theft offenses should be vacated pursuant to the one, act-one, crime rule
because the charges were based on the same conduct. Id. at 597. A similar result is warranted here.
¶ 33 “When two convictions violate the one-act, one-crime doctrine, the sentence should
be imposed on the more serious offense, and the less serious offense should be vacated.” People
v. Carr-McKnight, 2020 IL App (1st) 163245, ¶ 114 (citing People v. Artis, 232 Ill. 2d 156, 170
(2009)). Here, both of the offenses are Class 3 felonies and where punishments for the offenses
are identical, reviewing courts must consider which offense requires the more culpable mental
state. In re Samantha V., 234 Ill. 2d 359, 379 (2009). While both require the perpetrator to
knowingly engage in illegal conduct, the financial exploitation of an elderly person charge also
requires the individual stand in a position of trust to the victim, violate that trust, and that the victim
be a member of a class the legislature has decided needs additional protections, the elderly and
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disabled. Accordingly, the charge of financial exploitation of an elderly person is the more serious
of the two charges, so we vacate the conviction and sentence for unlawful use of a debit card. We
direct the circuit clerk to correct the mittimus to reflect our decision.
¶ 34 C. Sentence
¶ 35 Defendant’s final argument is that the circuit court erred in imposing the maximum
sentence available under the law. Specifically, she argues that the court considered improper
factors and comments by the court evidenced a “personal disdain” for defendant resulting in bias
in sentencing. However, after reviewing defendant’s argument, it is clear she is attempting to argue
judicial bias during her sentencing hearing and is conflating that argument with the improper
consideration of factors at sentencing. Accordingly, we will address whether the record
demonstrates bias by the sentencing court.
¶ 36 A sentencing judge is presumed to be impartial, and the party claiming bias bears
the burden of overcoming this presumption. People v. Fisher, 2023 IL App (4th) 220717, ¶ 31.
“ ‘There is a strong presumption that the trial court based its sentencing determination on proper
legal reasoning, and a court of review should consider the record as a whole, rather than focusing
on a few words or statements by the trial court.’ ” People v. Williams, 2018 IL App (4th)
150759, ¶ 18 (quoting People v. Canizalez-Cardena, 2012 IL App (4th) 110720, ¶ 22). To
demonstrate bias or prejudice by the sentencing court, the defendant must present evidence beyond
an unfavorable result. People v. Rademacher, 2016 IL App (3d) 130881, ¶ 47. Rather, what is
required is “ ‘a showing of animosity, hostility, ill will, or distrust towards [a] defendant.’ ” Id.(quoting People v. Vance, 76 Ill. 2d 171, 181 (2016)). We review de novo whether allegations of
bias against a defendant require a new sentencing hearing. Fisher, 2023 IL App (4th) 220717, ¶ 31.
¶ 37 Defendant argues that the circuit court’s comments—that defendant’s statement in
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allocution was “grotesque” and left the court “speechless,” and that the crime itself and the impact
it had on the victim and her family was “upsetting”—show that the court imposed the maximum
sentence because of personal animus. Defendant also points to the court’s comment that defendant
was “one of the worst criminals I’ve ever seen in this courtroom.” After reviewing the sentencing
hearing in its entirety, we conclude that no error occurred. While undoubtedly the comments from
the court constituted pointed criticism of defendant, the crime she committed, and the attendant
circumstances, it is well established that “harsh criticism, based on the particular facts of a
defendant’s case, does not constitute any sort of evidence of prejudice derived from personal bias.”
Rademacher, 2016 IL App (3d) 130881, ¶ 48.
¶ 38 Furthermore, a defendant’s “continued protestation of innocence and a lack of
remorse may convey a strong message to the trial judge that the defendant is an unmitigated liar
and at continued war with society,” matters which “are proper factors to consider in imposing
sentence.” People v. Ward, 113 Ill. 2d 516, 528 (1986). Defendant went from denial (stating that
she was innocent and had permission to use the card), to justification (that she had a gambling
problem), to shifting blame (criticizing the care provided to Boward by her daughter). Defendant’s
strikingly defiant statement in allocution gave the circuit court every reason to consider it as a
sentencing factor in aggravation. We also note that the word “prejudice” itself tells us that it means
pre-judging, not judging per se. The court’s comments were in direct response to defendant’s
statements made in allocution, and the court’s judgment—not prejudgment—of those statements
was understandably harsh. The record falls short to demonstrating that the court’s statements were
born out of personal animus towards defendant.
¶ 39 Defendant also argues that the fact the State recommended, and the circuit court
initially considered, a sentence of only three years weighs in favor of reversal. Again, we are
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unable to come to the same conclusion given the court’s explicit weighing of factors on the record.
Further, defendant argues the fact that defendant pleaded guilty and acknowledged her gambling
addiction equates to signs of remorse. While an admission of fault has been recognized as a
showing of remorse and pleading guilty can be viewed as mitigating, the presence of those
mitigating factors does not require the sentencing court to reduce a sentence from the maximum
allowed. People v. Pippen, 324 Ill. App. 3d 649, 653 (2001). Here, the court could have reasonably
concluded that the mitigating effects of defendant’s guilty plea or alleged remorse for her actions
were outweighed by aggravating factors. We also must note that defendant continued to deny that
she committed the offense, which contradicts the contention that she felt remorse. Moreover, a
court is presumed to consider mitigating factors when presented absent an explicit showing to the
contrary. People v. Halerewicz, 2013 IL App (4th) 120388, ¶ 42. Defendant essentially asks this
court to reweigh the sentencing factors, which we decline to do. See People v. Alexander, 239 Ill.
2d 205, 213 (2010) (stating a reviewing court may not substitute its judgment for that of the
sentencing court based on a reweighing of sentencing factors).
¶ 40 To the extent that defendant’s argument can be interpreted as contending the circuit
court considered improper factors in determining a sentence, that argument is also without merit.
As explained above, the court repeatedly enumerated the factors it was considering and those that
it found to be most important. Commenting on defendant’s lack of remorse, likelihood of
recidivism, and criminal history were not improper. In fact, none of the factors mentioned were
improper.
¶ 41 Therefore, the circuit court did not err in sentencing defendant.
¶ 42 III. CONCLUSION
¶ 43 For the reasons stated, we vacate the conviction in count II and otherwise affirm
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the circuit court’s judgment. The circuit clerk is directed to correct the mittimus to reflect that the
conviction in count II is vacated.
¶ 44 Affirmed in part.
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