People v. Heider ( 2008 )

JUSTICE FREEMAN

delivered the judgment of the court, with opinion.

Justices Fitzgerald, Kilbride, and Burke concurred in the judgment and opinion.

Chief Justice Thomas dissented, with opinion, joined by Justices Garman and Karmeier.

Justice Karmeier also dissented, with opinion, joined by Chief Justice Thomas and Justice Garman.

OPINION

In May 2003 defendant Blake Heider pleaded guilty to one count of predatory criminal sexual assault (720 ILCS 5/12—14.1(a)(1) (West 2002)) arising from an instance of sexual contact between defendant, who was 19 years old and mentally retarded, and D.R., a 12-year-old female. During the sentencing hearing, the State requested that defendant be sentenced to six years’ imprisonment, the statutory minimum for a Class X felony (730 ILCS 5/5—8—1(a)(3) (West 2002)). The circuit court of Woodford County sentenced defendant to 10 years’ imprisonment. Defendant filed a motion to reconsider sentence, which the court denied. A divided appellate court affirmed defendant’s conviction and sentence. No. 4 — 04—0932 (unpublished order under Supreme Court Rule 23). This court allowed defendant’s petition for leave to appeal. 210 Ill. 2d R. 315. For the reasons set forth below, we reverse the judgment of the appellate court.

BACKGROUND

The indictment alleged three violations of section 12—14.1(a)(1) of the Criminal Code of 1961 (Code) (720 ILCS 5/12—14.1(a)(1) (West 2002)). Section 12— 14.1(a)(1) provides: “(a) The accused commits predatory criminal sexual assault of a child if: (1) the accused was 17 years of age or over and commits an act of sexual penetration with a victim who was under 13 years of age when the act was committed.” According to counts I and III of the indictment, defendant twice placed his finger in D.R.’s vagina — once on October 31, 2002, and again on March 15, 2003. Count II of the indictment alleged that, sometime between October 31, 2002, and January 1, 2003, defendant placed his penis in D.R.’s mouth. Defendant, who was born on October 20, 1983, was 19 years old at the time of each of these alleged incidents. D.R., who was born on August 16, 1990, was 12 years old.

In a statement to police describing her relationship with defendant, D.R. stated that her friend “hooked [defendant and her] up” during the summer of 2002. Defendant was initially hesitant about dating D.R., but her friend “talked him into it.” At first defendant and D.R. would “hang out and talk,” but after a couple of weeks they began kissing and holding hands. On October 31, 2002, the date of the first incident alleged in the indictment, defendant and D.R. were at a park kissing and holding hands when D.R. fell to the ground. After she fell, they began kissing again and defendant put his hand in D.R.’s pants. He inserted his finger in D.R.’s vagina and “rubb[ed] his hands up and down” for a couple of minutes.

The next incident alleged in the indictment occurred in November or December of 2002. D.R. stated that she and defendant were parked in his father’s car and were talking and kissing, and defendant asked D.R. if she wanted to perform oral sex on him. D.R. told the police that she “didn’t know what to say” because she did not know if she was “ready for this or not.” Defendant told D.R. it was her decision — it was “up to [her] if [she] want[ed] to or not” — and she eventually consented. D.R. acknowledged that, during this incident, defendant’s penis was in her mouth, but she said there was no ejaculation. Defendant then drove D.R. home.

The third incident alleged in the indictment took place on March 15, 2003, at a residence where D.R. was babysitting. D.R. told the police that two of her friends came to the house at about 7 p.m., followed by defendant. The four of them sat and talked for a while, and D.R. then went into the bedroom to put the baby in her crib. Defendant came into the bedroom with her and sat down on the bed next to the crib. After D.R. put the baby into the crib, defendant pulled D.R. onto the bed and they began kissing. Defendant put his hand in D.R.’s pants and, similar to the first incident, put his finger in D.R.’s vagina. They then joined the others in the next room. D.R.’s friends then left, followed by defendant. Shortly thereafter, D.R.’s mother arrived at the house where D.R. was babysitting. According to D.R., a neighbor had noticed D.R.’s friends at the house and had called D.R.’s mother.

D.R.’s mother obtained a court order of protection against defendant. In October 2003, defendant violated the order of protection by meeting and talking with D.R. in a public park. Defendant was subsequently convicted of unlawful violation of an order of protection and was sentenced to 24 months’ probation.

In August 2004, pursuant to a fully negotiated plea agreement,¹ defendant pleaded guilty but mentally ill to count I of the indictment for predatory criminal sexual assault. In return, the State entered a nolle prosequi on the remaining counts and recommended a sentence of six years, the statutory minimum. The following month the circuit court conducted a sentencing hearing. No witnesses were presented, but the record contained a presentence investigation report (PSI) with an addendum. The PSI and addendum included, among other things, the aforementioned statement by D.R. to the police; a September 2000 social developmental study and psychological report by the Woodford County Special Education Association; a psychological evaluation of defendant in 2003 by Dr. Joel Eckert, the defense psychologist; and 17 letters in support of defendant from family members, friends, neighbors, and various school personnel including teachers, the junior-senior high school principal, and the district superintendent. The record also included a forensic report prepared in 2004 by Dr. Robert Chapman, a State-retained psychiatrist.

According to the documents available to the circuit court prior to sentencing, defendant was enrolled in early childhood education as a speech- and language-impaired student in September 1987, when he was three years old. In the spring of 1989, his status was changed to learning disabled with a secondary disabling condition of speech and language impairment. Once he started school, he was given special education services beginning in the first grade and continuing through the twelfth grade. In the first grade, defendant was held back a year, apparently because he was a “slower learner.”

In July 1999, the summer before his freshman year in high school, defendant was diagnosed with B-cell type leukemia. He was treated at St. Jude’s Hospital in Memphis, Tennessee, from July to December 1999, and apparently missed much of his freshman year in school. Defendant graduated from high school in May 2003. His cancer is now in remission.

Defendant told Eckert, the defense psychologist, that D.R.’s parents spoke to defendant about his relationship with D.R. on three occasions in late 2002, prior to the March 2003 order of protection. According to defendant, they told him to stay away from D.R. Defendant added that his own parents “weren’t very happy” about his relationship with D.R.

Other than his convictions for predatory criminal sexual assault and unlawful violation of an order of protection, defendant’s prior history — as of September 2004, the date of the PSI — included only traffic violations such as speeding, disregarding a stop sign and violation of the seat belt provisions of the Illinois Vehicle Code.

Eckert’s report was based, in part, on his interview with defendant in August 2003 and on a number of tests, including the Wechsler Adult Intelligence Scale — Third Edition. Eckert estimated defendant’s level of cognitive functioning to be within the borderline impaired range. Defendant’s judgment, insight and ability to reason abstractly were all estimated to be mildly impaired, primarily because of defendant’s limited cognitive abilities.

Eckert noted that defendant’s nonverbal cognitive skills were “significantly better developed” than his verbal skills. Regarding defendant’s verbal skills, Eckert stated that defendant’s verbal IQ, receptive-language skills, word-recognition skills, and reading-comprehension skills were “all extremely poorly developed.” Indeed, defendant’s receptive-language skills “suggest that he comprehends information spoken to him[ ] at about the level of a ten year old.” Eckert also opined that defendant was functionally illiterate. He explained that the common definition of functional literacy requires at least a fifth-grade reading-comprehension level. According to Eckert, defendant’s reading comprehension was at about the fourth-grade level.

Eckert concluded, in addition, that defendant was “extremely immature and naive.” Eckert explained that defendant’s level of maturity probably could best be understood as matching that of his receptive-language skills, which, as noted, were at about the level of a 10-year-old. In Eckert’s view, defendant’s emotional maturity was about the same as that of D.R.

Finally, Eckert stated that, in his professional opinion, defendant did not possess “the intellectual capacity to understand that his conduct with [D.R.] was criminal, simply based on their chronological age difference.” Eckert added: “I am not at all convinced that [defendant] even currently understands why his relationship with [D.R.] was criminal.”

The report issued by Chapman, the State-retained psychiatrist, was based, in part, on interviews with defendant in March 2004. With regard to defendant’s mental functioning, Chapman reached a conclusion similar to Eckert’s. Chapman diagnosed defendant as borderline mentally retarded with a learning disorder. According to Chapman, defendant described his reading as “poor” and said he could not read sentences. Chapman stated that defendant was able to read a simple sentence “but demonstrated a lack of understanding of the meaning.”

Chapman disagreed with Eckert’s conclusion regarding defendant’s ability to appreciate the criminality of his conduct. Chapman opined that defendant “did not suffer a mental disorder or defect that caused him to lack the capacity to appreciate the criminality of the behavior leading to the present charge of Predatory Criminal Sexual Assault.”

Defendant’s difficulties, both academic and social, were reflected in many of the letters that were written in his support. A teacher’s aide wrote that defendant “had trouble processing and retaining information.” Another letter writer, a family friend who tutored defendant when he was being treated for cancer, noted that defendant “had difficulty with his school work (he had always gotten special education help in school).” She added that, as defendant grew older, “it was very noticeable that he was not maturing socially or emotionally like the rest of his friends and classmates.” Defendant’s high school principal wrote that defendant “struggled in his classes” and “[h]is educational level was far below grade-level.” According to the principal, defendant “had great difficulty in many areas of his education, especially with reading, writing, comprehension, and math.” The principal also noted, as did several other letter writers, that defendant tended to socialize with students younger than his own age. The principal wrote:

“During the two school years that I had contact with [defendant] in school, he rarely socialized with students of his age. His friends were much younger age-wise, but at similar social, emotional, and maturity levels. *** [I]t seemed that [defendant] felt more comfortable talking with these students and spending time with them. Because of [defendant’s] social, emotional, and maturity levels, he was spending time with students who were very much like him.”

Defendant was also described in various letters as polite, caring, nonaggressive and willing to help others. With regard to his behavior in school, defendant was described as someone who took his school work seriously and tried his best in spite of his difficulties.

At the sentencing hearing, the State acknowledged that defendant was “slower than some” but argued that he nevertheless understood the criminality of his conduct and should be held responsible for it. After noting the seven-year difference in age between defendant and D.R., the State asked the court, “on behalf of [D.R.] and her family,” to impose a sentence of six years’ imprisonment. This sentence, the statutory minimum for a Class X felony, was the term the parties had agreed upon as part of their plea agreement. The State did not argue any of the statutory aggravating factors.

In his argument, defense counsel pointed to a number of mitigating factors. Counsel noted defendant’s mental impairment, asserting that, according to Eckert’s psychological evaluation, defendant “functions at the emotional and mental maturity of an 11-year-old.” According to counsel, defendant was not a predator in his relationship with D.R. Rather, because defendant himself was essentially a child, he and D.R. were, in effect, “two young children” in a boyfriend and girlfriend relationship.

Counsel also noted that, according to the record, defendant was not the one who initiated the relationship. Counsel stated: “[D.R.] asked her friend *** to hook them up. Her terminology. And so [the friend] contacted [defendant] and asked him if he would go out with her. *** And after some thought in the process he said he would.”

Counsel argued, in addition, that there were mitigating circumstances in defendant’s violation of the order of protection. As previously indicated, defendant violated the order in October 2003, about six months after it was entered, by meeting and talking with D.R. in a public park. According to defense counsel, that meeting took place at the instigation of D.R., who asked a friend to arrange for defendant to meet D.R.

In sentencing defendant, the circuit court acknowledged defendant’s “unique mental limitations” but noted that, under the statutory offense to which defendant pleaded guilty, a term of imprisonment was required. The court observed that services were available in prison for persons such as defendant with mental limitations. However, in the court’s view, these services were “woefully inadequate to deal with the problems this defendant has.” The court stated: “As a result of this court’s belief that the Department of Corrections will not provide the defendant with the services that he needs adequately, this court must impose a sentence which will protect the public from further acts by this defendant.”

The court commented further on defendant’s mental impairment and its impact on his sentencing decision:

“His mental illness is somewhat of a double-edged sword. On one hand, it instills a great deal of sympathy and compassion, as [defense counsel] stated in his beginning remarks. And the system for which we work does not afford those types of individuals a great deal of consideration. But it also instills a great deal of fear in the community because, as demonstrated by this particular defendant, [despite] insistence by his parents, insistence by [D.R.’s] parents, insistence by this court in *** issuing orders of protection, *** none of those things were successful at keeping this young man away from this young girl.

[Defendant] had more than ample opportunity throughout the course of this case to demonstrate his ability to control himself. He did not do so. And that should terrify the public.”

The court rejected the 6-year sentence recommended by the State and imposed a sentence of 10 years in prison.

In October 2004, defendant filed a motion to reconsider sentence. In his motion, defendant cited a number of factors, including “the Defendant’s diminished mental functioning,” in arguing that the 10-year sentence was “unduly harsh and severe.” Defendant asked the court to “give further consideration to the records and reports contained in the ¹ Supplementary Pre-Sentence Report’ and impose a sentence in accordance with the recommendation of the State’s Attorney of six years in the Illinois Department of Corrections.”

At the hearing on the motion to reconsider, defense counsel offered arguments similar to those he had advanced at the sentencing hearing. Counsel pointed to defendant’s mental impairment, noting that he was “functioning at the emotional maturity of an 11-year-old boy.” Defendant’s transgression, counsel argued, was that he had sexual contact “with someone who was then a 12-year-old girl as a result of her pursuing him into this relationship.” Counsel noted that the statute under which defendant was charged and convicted was intended to deal with sexual predators. However, counsel contended that, under the facts in the case at bar, defendant could not be seen as a predator. Counsel concluded by stating that “the statute requires a minimum of six [years’ imprisonment] in this situation.” Counsel argued that, under the circumstances in this case, six years was enough.

The circuit court denied the motion to reconsider sentence. According to the court, defense counsel’s arguments were, in essence, no different from the arguments he had previously made.

On appeal, defendant argued that the circuit court abused its discretion by improperly considering defendant’s mental retardation as an aggravating factor in sentencing.² In support, defendant noted that the Unified Code of Corrections (Corrections Code) (730 ILCS 5/1—1—1 et seq. (West 2002)) lists mental retardation as a factor in mitigation. 730 ILCS 5/5—5—3.1(a)(13) (West 2002). Defendant sought either a reduction in his sentence or a remand for resentencing before a different judge.

The appellate court concluded that defendant failed to raise this argument in his motion to reconsider sentence, and the issue therefore was not properly preserved for review. The appellate court nevertheless chose to address defendant’s claim.³ No. 4—04—0932 (unpublished order under Supreme Court Rule 23).

The appellate court majority upheld the sentence imposed, holding that the circuit court could properly consider the aggravating aspects of defendant’s mental disability. The court stated: “Defendant’s failure to control his impulses and conform his behavior does bear upon future dangerousness, and the trial court could properly consider this as a factor in aggravation.” In explaining this decision, the majority nevertheless noted that “this is an unusual case.” The court stated:

“Defendant is borderline mentally retarded and has the mental functioning and maturity of a 10 to 11 year old. Defendant befriended primarily younger children because he apparently felt more comfortable with them than his peers due to his limitations. *** Defendant is not an adult who used his superior knowledge, power, or experiences to exploit the innocence of a child. Defendant himself operates as a child. Defendant engaged in what he perceived to be consensual contact with a physically mature person he perceived, although incorrectly, as a peer.” No. 4 — 04— 0932 (unpublished order under Supreme Court Rule 23). The dissenting justice asserted that defendant’s

sentence should not have exceeded the statutory minimum of six years. The dissent stated: “The court clearly recognized defendant’s cognitive age and his perhaps understandable inability to conform his actions to the law applicable to his chronological age. Yet, the court used that circumstance to aggravate, rather than mitigate, the sentence imposed.” No. 4 — 04—0932 (Appleton, J., dissenting) (unpublished order under Supreme Court Rule 23).

ANALYSIS

Our initial task is to determine the issue or issues that are properly before us. In his appellant brief to this court, defendant argues that the trial court improperly relied “upon the defendant’s mental retardation as a significant factor in aggravation” where the Illinois legislature has “determined that mental retardation is properly considered as a factor in mitigation.” Defendant points to section 5 — 5—3.1(a)(13) of the Corrections Code, which lists mental retardation as a factor in mitigation.⁴

Defendant advanced this same argument in the appellate court below. According to defendant, the trial court erred in characterizing his “impaired mental condition as a factor in aggravation, when the legislature has determined that mental retardation is a factor in mitigation.” Accordingly, barring any failure on defendant’s part to include this issue in his motion to reconsider sentence, it is this claim — that defendant’s mental retardation was improperly considered as an aggravating factor — which is before us. See People v. Reed, 177 Ill. 2d 389, 393 (1997). The State argues that this claim was not included in defendant’s motion to reconsider sentence. According to the State, defendant has forfeited this issue on appeal.

Section 5 — 8—1(c) of the Corrections Code provides, in pertinent part: “A defendant’s challenge to the correctness of a sentence or to any aspect of the sentencing hearing shall be made by a written motion filed within 30 days following the imposition of sentence.” 730 ILCS 5/5—8—1(c) (West 2002). In Reed, 177 Ill. 2d at 390, this court held that, under section 5 — 8—1(c), sentencing issues must be raised in a postsentencing motion in order to preserve them for appellate review.

In his motion to reconsider sentence, defendant expressly mentioned his “diminished mental functioning” and asked the trial court to “give further consideration to the records and reports contained in the ‘Supplementary Pre-Sentence Report’ ” and to impose a 6-year — rather than a 10-year — sentence. The motion followed the trial court’s imposition of a sentence that was four years greater than the statutory minimum recommended by the State “on behalf of [D.R.] and her family.”

At the hearing on the motion to reconsider sentence, defense counsel began by arguing that defendant “is not your normal criminal,” but rather “is a kind and decent and caring person.” Counsel described defendant as a “19-year-old mentally impaired boy whose transgression in this case [was] being receptive to the affections of the 12-year-old girl.”

Shortly thereafter, counsel referred to the circuit court’s comment at sentencing describing mental impairment as a “double-edged sword.” Counsel stated: “At the sentencing hearing the court made an observation which I — it struck me as very accurate. The court said that mental impairment, mental illness, can be a double-edged sword. And I agree with that observation, your Honor.” As previously noted, the circuit court explained at sentencing that mental retardation is “double-edged” in that, “[o]n one hand, it instills a great deal of sympathy and compassion *** [b]ut it also instills a great deal of fear in the community.” In other words, mental retardation may be seen as both mitigating and aggravating. It may diminish blameworthiness for a crime, even as it indicates that a defendant might be dangerous in the future. See, e.g., People v. McNeal, 175 Ill. 2d 335, 370 (1997).

Continuing his argument at the motion hearing, defense counsel argued, in essence, that any aggravating aspects of mental retardation should not apply to defendant. He asserted that it is a person’s “heart” or “personality” that drives a person to commit crimes, not his lack of intelligence. He acknowledged that a person who is mentally impaired tends to be a follower and is “vulnerable to being led or misled by somebody with superior intellect.” However, he added that mental impairment, in itself, “is no more likely to cause [a] person to be devious than if that person was not impaired.” Defendant in the instant case, counsel asserted, was not devious. Counsel observed that, prior to this case, defendant “has never been in trouble in his life by all accounts.” In conclusion, counsel noted the 10-year sentence imposed by the court, and stated: “[T]he statute requires a minimum of six in this situation, and I beg you, Your Honor, that’s enough.”

In his reference to the circuit court’s “double-edged sword” comment, defense counsel was noting that mental impairment is sometimes viewed as both mitigating and aggravating. Implicit in this “double-edged sword” reference was the Corrections Code provision listing mental retardation as a mitigating factor (730 ILCS 5/5—5—3.1(a)(13) (West 2002)) — a provision which the circuit court was presumed to know. See, e.g., People v. Duff, 374 Ill. App. 3d 599, 605 (2007). Moreover, defense counsel, in his argument at the motion hearing, clearly objected to the circuit court’s judgment regarding the aggravating nature of defendant’s mental retardation in this case. After mentioning the “double-edged sword” comment, defense counsel argued that the circuit court erred in imposing a 10-year sentence rather than the statutory minimum of 6 years.⁵

After reviewing the record, we are persuaded that defendant has preserved for review the claim that his mental impairment was improperly considered as an aggravating factor. There are several reasons for requiring that an objection be made first at trial in order to preserve an issue for appeal. One is that this allows the trial court an opportunity to review a defendant’s claim of sentencing error and save the delay and expense inherent in appeal if the claim is meritorious. Reed, 177 Ill. 2d at 394. A second reason for this requirement is to prevent a litigant from asserting on appeal an objection different from the one he advanced below. Our review of the record leaves us satisfied that these purposes have been met. The trial court had an opportunity to review defendant’s claim, and defendant is not asserting in this court a completely different objection from the one he raised below. At the motion hearing, defense counsel expressly referred to the “double-edged” nature of mental retardation, argued that any aggravating aspects of mental retardation should not apply to defendant, and urged the trial court to reduce defendant’s sentence. In circumstances such as these, where the trial court clearly had an opportunity to review the same essential claim that was later raised on appeal, this court has held that there was no forfeiture. See People v. Mohr, 228 Ill. 2d 53 (2008); People v. Coleman, 227 Ill. 2d 426 (2008).

We turn to the issue of whether, in view of the legislature’s listing of mental retardation as a factor in mitigation, the trial court erred in considering defendant’s mental impairment as a factor in aggravation. Defendant answers this question in the affirmative. According to defendant, the trial court’s comments at the sentencing hearing showed that it viewed defendant as dangerous because of his mental retardation. It was on this basis, defendant contends, that the trial court determined that defendant should be sentenced to 10 years in prison, rather than the 6 years recommended by the State. Defendant argues that, in reaching this decision, the trial court erred in considering defendant’s mental impairment as a factor in aggravation.

The State responds that the trial court did not use defendant’s mental retardation as an aggravating factor. The State notes that the maximum sentence for a Class X felony is 30 years. According to the State, if the court had viewed defendant’s mental impairment as a factor in aggravation, it likely would have imposed a much longer sentence. In the State’s view, the actual sentence of 10 years shows that the trial court considered defendant’s mental deficiency as a mitigating — not an aggravating— factor.

Section 5 — 5—3.1(a) of the Corrections Code lists factors in mitigation, which “shall be accorded weight in favor of withholding or minimizing a sentence of imprisonment.” 730 ILCS 5/5—5—3.1(a) (West 2002). One of these factors is: “The defendant was mentally retarded as defined in Section 5—1—13 of this Code.” 730 ILCS 5/5—5—3.1(a)(13) (West 2002). Section 5—1—13 provides: “ ‘Mentally retarded and mental retardation’ mean sub-average general intellectual functioning generally originating during the developmental period and associated with impairment in adaptive behavior reflected in delayed maturation or reduced learning ability or inadequate social adjustment.” 730 ILCS 5/5 — 1—13 (West 2002). The parties agree that defendant falls within this definition.

Section 5 — 5—3.2(a) lists factors in aggravation, which “shall be accorded weight in favor of imposing a term of imprisonment or may be considered by the court as reasons to impose a more severe sentence under Section 5 — 8—1.” 730 ILCS 5/5—5—3.2(a) (West 2002). Mental retardation is not among the 20 aggravating factors⁶ listed in section 5—5—3.2(a), none of which, as noted, were argued by the State at sentencing.

Given that the legislature chose to include mental retardation as a mitigating factor in section 5 — 5—3.1(a) but did not choose to include it as an aggravating factor in section 5 — 5—3.2(a), we consider it beyond dispute that the use of mental retardation as an aggravating factor in sentencing is improper. Some clarification of terms is in order.

There are two basic ways in which it might be said that mental retardation is used as an aggravating factor in sentencing. First, the trial court might conclude that the sentence of a mentally retarded defendant should be increased purely because he is mentally retarded. This would, in essence, be discriminatory — a consideration of mental retardation as a per se aggravating factor — which is prohibited under the statute.

Alternatively, a trial court might conclude, from the evidence, that a defendant’s mental retardation rendered him dangerous to the community, and for this reason decided to increase the defendant’s prison sentence. If, for example, the evidence established that a defendant had diminished impulse control as a result of his mental deficiency, and if that lowered impulse control rendered him a threat to the community, a trial court might conclude that, because of the defendant’s future dangerousness resulting from his lack of control, the defendant should be given a greater prison sentence in the interest of protecting the public. See People v. McNeal, 175 Ill. 2d 335, 370, 367-71 (1997). However, where mental retardation indicates future dangerousness, it is not the mental retardation that is being used as the aggravating factor. Rather, it is the future dangerousness that results from the mental retardation that is the aggravator. In our view, there is nothing improper in considering the effects of mental retardation in this way, so long as the evidence supports the conclusion that the defendant poses a future danger.

In the case at bar, defendant’s claim is not that the trial court engaged in the purely discriminatory use of mental retardation as an aggravating factor. Instead, defendant argues that the trial court improperly perceived defendant as dangerous, as a result of his mental retardation, and in that sense used defendant’s mental deficiency as an aggravating factor in determining defendant’s ultimate sentence.

As noted, this sort of consideration of mental retardation in sentencing is not improper, so long as the evidence supports the trial court’s conclusion that the defendant is dangerous. Defendant argues that there was no basis in the evidence for the trial court’s conclusion that defendant posed a future danger to the community. In this sense, then, defendant argues that the trial court improperly considered his mental retardation as a factor in aggravation.

A sentence based on improper factors will not be affirmed unless the reviewing court can determine from the record that the weight placed on the improperly considered aggravating factor was so insignificant that it did not lead to a greater sentence. People v. Conover, 84 Ill. 2d 400, 405 (1981), cited in People v. Martin, 119 Ill. 2d 453, 458 (1988); see also People v. Saldivar, 113 Ill. 2d 256, 272 (1986) (reducing sentence, where circuit court erred in imposing sentence in excess of statutory minimum based on improper aggravating factor).

In the case at bar, the circuit court clearly indicated at sentencing that, in the court’s view, defendant posed a serious future threat to the community as a result of his mental impairment. The court asserted, for example, that defendant was “desperately” in need of “services” to deal with his “problems,” but that any such services he might receive in prison would be “woefully inadequate to deal with the problems this defendant has.” The court stated: “As a result of this court’s belief that the Department of Corrections will not provide the defendant with the services that he needs adequately, this court must impose a sentence which will protect the public from further acts by this defendant.” A short time later, the court stated: “I can’t imagine that a community, our communities in particular, would condone the free movement of an individual such as [defendant] with all his problems, whether they be inherited or otherwise, into the community.” In addition, as previously noted, the court referred to defendant’s mental impairment as a “double-edged sword” that was both mitigating and aggravating. According to the court, while defendant’s mental retardation “instills a great deal of sympathy and compassion *** it also instills a great deal of fear in the community.” The court pointed to efforts by defendant’s parents and D.R.’s parents to keep defendant and D.R. apart, as well as to the order of protection entered by the court. The court stated: “[Defendant] had more than ample opportunity throughout the course of this case to demonstrate his ability to control himself. He did not do so. And that should terrify the public.”

As noted, where a defendant poses a future threat as a result of his mental retardation, there is nothing improper in considering this future dangerousness as an aggravating factor in sentencing, so long as the record supports the conclusion that the defendant poses a future danger. The difficulty here is that the record in this case does not support the circuit court’s conclusion that the public should be “terrif[ied]” of defendant.

For example, notwithstanding that defendant was charged with the offense of predatory criminal sexual assault, and notwithstanding that he pleaded guilty to this offense, there is virtually nothing in the record to indicate that defendant was, as the circuit court characterized him, a “sexual predator *** who commits crimes against young people.” Prior to this case, defendant’s history — as shown in the presentence investigation report — included only traffic violations such as speeding, disregarding a stop sign and violation of the seat belt provisions of the Illinois Vehicle Code. There was nothing in his prior history that even remotely resembled a violent crime or an offense of a sexual nature. In the case at bar, the record shows that defendant did not initiate the relationship with D.R. It was D.R. who pursued defendant. Moreover, defendant socialized with students who were D.R.’s age — not in order to prey on them — but because they were, in essence, his peers in terms of emotional maturity. As defendant’s high school principal wrote in his letter in defendant’s support: “[I]t seemed that [defendant] felt more comfortable talking with these students and spending time with them. Because of [defendant’s] social, emotional, and maturity levels, he was spending time with students who were very much like him.” The principal noted, in his letter, that younger students who spent time with defendant appeared to be impressed with the fact that he was older and had a car. However, there is nothing in the letter to indicate that defendant consciously tried to impress these students with his superior age or his car, or that he was even aware that the students were so impressed.

In addition, the circumstances leading to defendant’s violation of the order of protection fall far short of presenting or even suggesting a picture of a “terrify[ing]” individual. The meeting between defendant and D.R. took place in a public park in October 2003, some six months after the order was entered. According to defense counsel — who made this assertion, without objection, at the sentencing hearing — the meeting occurred at the instigation of D.R., who asked a friend to arrange for defendant to meet D.R.

Finally, the 6-year sentence recommended by the State, “on behalf of [D.R.] and her family,” undermines the conclusion that defendant posed so serious a future threat that a 10-year sentence — 4 years longer than the recommended statutory minimum — was required to protect the public.

Where a court imposes a sentence based on a conclusion that the defendant’s mental retardation renders him a future danger, and where the record does not support such a conclusion, the court has improperly relied on mental retardation as an aggravating factor in sentencing. Here, the circuit court improperly concluded that because of his mental impairment, defendant was an individual of whom the public should be “terrif[iedj,” and the court imposed a sentence four years longer than the recommended statutory minimum. In this instance, the circuit court improperly relied on defendant’s mental retardation as an aggravating factor in sentencing.

We further conclude that the weight placed on this improper factor was significant enough that it. led to a greater sentence. See Conover, 84 Ill. 2d at 405, cited in Martin, 119 Ill. 2d at 458. Defendant’s alleged future dangerousness was, in essence, the aggravating factor relied upon by the court in fixing the sentence. See Saldivar, 113 Ill. 2d at 272. In its comments at sentencing, the court referred to defendant’s “limitations” and “problems” and asserted that, as a result, the court needed to impose a sentence that would “protect the public from further acts by this defendant.” The sentence imposed was 10 years — 4 years greater than the recommended statutory minimum. The State, at sentencing, argued none of the statutory factors in aggravation. See 730 ILCS 5/5—5—3.2(a) (West 2002).

Under these circumstances, the 10-year sentence imposed by the circuit court cannot be affirmed. Accordingly, the judgment of the appellate court is reversed, and defendant’s sentence is vacated. We remand the cause to the circuit court of Woodford County for resentencing. In view of the comments made by the circuit court at sentencing, we conclude that, in order to remove any suggestion of unfairness, this case should be assigned to a different judge on remand. See People v. Dameron, 196 Ill. 2d 156, 179 (2001).

CONCLUSION

For the reasons stated, we reverse the judgment of the appellate court. Defendant’s sentence is vacated, and the cause is remanded to the circuit court of Woodford County for resentencing to be conducted by a different judge.

Appellate court judgment reversed; sentence vacated; cause remanded with directions.

1 In a fully negotiated plea agreement, the defendant agrees to plead guilty in exchange for the State’s dismissal of other charges and a specific sentencing recommendation by the State. See People v. Lumzy, 191 Ill. 2d 182, 185-86 (2000).

2 Defendant advanced two additional arguments in the appellate court: (1) in its sentencing decision, the trial court erred in relying on assumptions not supported by competent evidence, and (2) the range of punishment provided under the predatory criminal sexual assault statute violated the proportionate penalties clause. Neither of these arguments is before this court in the instant appeal.

3 Relying on People v. McCaskill, 298 Ill. App. 3d 260, 265 (1998), the court asserted that “forfeiture is a limitation on the parties and not upon a reviewing court.” No. 4—04—0932 (2006) (unpublished order under Supreme Court Rule 23).

4 The State contends that defendant raised a second issue. According to the State, defendant argued that the trial court erred in imposing a sentence above the statutory minimum “even though defendant is mentally retarded and the People recommended the minimum sentence.” The State correctly notes that this issue was not included in defendant’s petition for leave to appeal. In the State’s view, this claim is forfeited. In his reply brief, defendant denies making this argument. Rather, defendant expressly agrees that the trial court is never required to impose the statutory minimum, nor is it required to impose the sentence recommended by the State. We agree with defendant that this minimum-sentence claim has not been argued.

5 Much has been made of the particular wording of defense counsel’s reference, at the motion hearing, to the circuit court’s previous “double-edged sword” comment. At the motion hearing, which took place on October 29, 2004, counsel stated: “At the sentencing hearing the court made an observation which I — it struck me as very accurate. The court said that mental impairment, mental illness, can be a double-edged sword. And I agree with that observation, your Honor.” At the sentencing hearing, which occurred on September 15, 2004, the court stated, in pertinent part: “His mental illness is somewhat of a double-edged sword. On one hand, it instills a great deal of sympathy and compassion *** [b]ut it also instills a great deal of fear in the community ***.” The circuit court’s comment regarding the “double-edged” nature of mental retardation appears to be directed only at defendant. The court stated: “His mental illness is somewhat of a double-edged sword.” (Emphasis added.) Thus, it might appear that defense counsel, in his comments at the motion hearing, was adopting the circuit court’s judgment regarding the aggravating nature of defendant’s mental impairment. However, a moment’s reflection reveals the absurdity of such a conclusion, which runs directly counter to defense counsel’s argument — at this same motion hearing — that defendant’s sentence should be reduced. In asserting at the motion hearing that the circuit court’s “double-edged sword” comment was “very accurate,” counsel obviously was not agreeing with the court that defendant’s mental impairment, in particular, was aggravating. Rather, counsel was simply noting the accuracy of the court’s comment, taken in a general sense, that mental retardation may sometimes be seen as both mitigating and aggravating. (As is explained more fully elsewhere in this opinion, mental retardation — or rather, the future dangerousness which sometimes results from mental retardation — may properly be considered, in an appropriate case, as an aggravating factor in sentencing.) A look at the specific language used by defense counsel at the motion hearing supports the conclusion that he was speaking generally, not specifically. In contrast to the circuit court, which asserted at sentencing: “His mental illness is somewhat of a double-edged sword” (emphasis added), counsel, in recounting at the motion hearing the “observation” which he felt was “very accurate,” stated: “The court said that mental impairment, mental illness, can be a double-edged sword.” There was no mention of defendant or any other specific individual in this recounted version of the statement. Moreover, where the circuit court asserted that defendant’s mental impairment “is” a double-edged sword, counsel stated, by contrast, that mental impairment “can” be a double-edged sword.

6 Section 5—5—3.2(a) now contains two additional factors, neither of which is applicable to the case at bar. See 730 ILCS 5/5—5—3.2(a)(20), (a)(21) (West 2006).