People v. H.C. (In Re H.C.)

2019 IL App (1st) 182581
No. 1-18-2581
Opinion filed May 2, 2019
FOURTH DIVISION
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
In re: H.C., a Minor ) Appeal from the Circuit Court
) of Cook County.
(The People of the State of Illinois, )
) No. 18 JD 01375
Petitioner-Appellee, )
) The Honorable
v. ) Stuart F. Lubin
) Judge, presiding.
H.C., )
)
Respondent-Appellant). )
JUSTICE GORDON delivered the judgment of the court, with opinion.
Presiding Justice McBride and Justice Reyes concurred in the judgment and opinion.
OPINION
¶1 After a bench trial in juvenile court for criminal sexual abuse, H.C., the
17-year-old minor respondent, was found guilty. The trial court adjudicated
No. 1-18-2581
him to be delinquent and a ward of the court, and sentenced him to 18 months
of probation.
¶2 In this appeal, respondent seeks a new sentencing hearing, claiming that
the trial court improperly considered his maintenance of innocence as an
aggravating factor when sentencing him and, therefore, denied respondent's
request for supervision instead of probation. For the following reasons, we
affirm.
¶3 BACKGROUND
¶4 On August 20, 2018, respondent was charged in a juvenile petition for
adjudication of wardship with criminal sexual abuse, unlawful restraint and
battery. Prior to trial, the State made a plea offer of one year of probation in
exchange for a plea of guilty to simple battery, and respondent rejected the
offer. When the State published this offer on the record prior to trial, defense
counsel stated on the record that she had advised respondent of the collateral
consequences of having to register as a sex offender if convicted of criminal
sexual abuse and of the possible immigration consequences that could result
from a conviction. The social investigation report later indicated that respondent
had immigrated to the United States from Honduras three years earlier.
¶5 In this appeal, respondent does not challenge either the sufficiency of the
evidence against him or the admission at trial of any exhibit, testimony or other
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evidence. Thus, we provide here a summary of what the State's evidence
established at trial.
¶6 On August 19, 2018, at 8:47 p.m., the victim, whom we identify by her
initials, N.A., was walking eastbound on Wrightwood Avenue on her way to the
Logan Theater in the Logan Square neighborhood, when she observed
respondent and two other young men walking toward her. Respondent was
wearing a white shirt and a white hat. N.A. was married and lived in the area,
but did not testify as to her age. As she approached the men, they were
positioned on the sidewalk, such that she either had to walk through them or
walk in the street. The victim explained that she would have had to walk "out in
the street because there is a tree on the right side here, and I would have had to
walk around the tree, and here are the cars, so I would have to go around the
cars or, yes, through the middle." So, she chose to walk through them.
¶7 As N.A. passed through the group, respondent grabbed her. She testified
that he grabbed "between my legs." When asked to be more specific, she
testified: "He grabbed my vagina." She testified that, after grabbing her
vagina, he then "grabbed me like from the back." Again, when asked for more
specificity, she testified: "[m]y butts." N.A. testified: "I started yelling first. I
started screaming, and I just like fought my way out with my elbows. I just
tried to—I don't know—fight my way out." The other men pushed N.A.
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towards respondent, making it difficult for her to escape. When asked whether
respondent was laughing, she replied: "They were laughing." After escaping,
she continued to walk to the theater, calling her husband on the way. N.A.
explained: "No, I didn't run. I thought they will run after me if I run."
¶8 Once in the theater, N.A. observed the same group of three men walking
past the theater and called 911. When the group had passed the theater, she
went outside and told two men and a woman who were outside of the theater
what had happened, and one of the two men, Nicholas Marzullo, started to
follow the group. After the police arrived, they located the group and brought
all three men to the theater separately for show-up identifications. N.A.
identified respondent as the one who had grabbed her, and Nicholas Marzullo
also identified respondent.
¶9 When N.A. accompanied the police back to the scene of the offense, she
observed surveillance cameras on nearby buildings. At trial, the State
introduced two clips from a surveillance video. The clips depict clearly a group
of three men, including one with a white hat and white shirt, walking spread
across the sidewalk. However, the incident itself is too far away and blurry to
observe exactly what occurred at the moment that the victim walked through
the group of men. Also, there is a bright light in the film, from the headlights of
an approaching vehicle, which partly obscures what happened at that moment.
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However, one can observe some sort of altercation and then observe the victim
walking away and talking on the phone.
¶ 10 Detective Jose Duran interviewed respondent in Spanish at the police
station with respondent's mother present. Detective Duran testified that he
provided Miranda warnings in Spanish, that both respondent and his mother
indicated that they understood the warnings, and that they waived the right to
counsel and indicated that they would speak with Detective Duran. After
receiving Miranda warnings, respondent admitted walking down Wrightwood
Avenue and passing a woman who yelled "hey" to the group and kept on
walking. At the station, respondent was still wearing a white hat and a white
shirt. Detective Duran was not asked, and did not testify at trial, about whether
respondent admitted or denied touching the victim.
¶ 11 The trial court found respondent guilty of criminal sexual abuse and
battery, but acquitted him of unlawful restraint and merged the battery
conviction into the criminal sexual abuse conviction.
¶ 12 In the social investigation report, dated October 29, 2018, the probation
officer reported: "The minor denies committing any act of crime." Further, the
report stated:
"The minor reported to the probation officer that the incident occurred
around 8 p.m. when he was walking with two of his friends. As he was
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No. 1-18-2581
walking he and his friends saw a female who was walking on the same
street the [sic] opposite of them. While as they passed each other up all
he heard was a scream by the female that was walking past them. The
minor denies anything else. He denies knowing why the female
screamed until the police stopped him shortly thereafter. The minor
completely denies any of his friends saying anything to her. He denies
touching her."
¶ 13 The report noted that respondent has "a total of two court referrals with
one of them being a finding of delinquency." The finding of delinquency was
in the instant case. The probation officer recommended 18 months of
probation.
¶ 14 At the sentencing hearing on November 8, 2018, the probation officer
informed the trial court that he wanted to change his recommendation from 18
months of probation, as stated in his social investigation report, to 18 months of
supervision. The trial court replied: "I'm not going to do that. This is a trial.
Go ahead." The probation officer then described respondent's background,
including that, at the time of the offense, respondent lived with his father, with
whom he did not have a good relationship. Since his arrest, respondent had
moved to a nearby town to live with his mother, with whom he had a good
relationship, and he had an overall good school performance.
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¶ 15 Although it was respondent's first offense, the State asked for a term of
probation, based on the seriousness of the offense. In the victim's impact
statement, the victim stated that the offense was the "most fearful moment in
my life." She further stated: "I cannot walk alone anymore nowhere, I have
nightmares."
¶ 16 Defense counsel observed that, prior to trial, the State had made an offer
of probation for misdemeanor battery without a registration requirement, and
counsel asked the court for a sentence of supervision. The following colloquy
ensued at the sentencing hearing:
"DEFENSE COUNSEL: Your Honor, if you recall before this trial
started, the State chose to put on the record the offer that they had made
to the minor respondent, which was probation on a misdemeanor battery
charge. Had he accepted that offer, there would be no collateral
consequence of registration for that offense. The minor exercised his
right to go to trial, and I don't—I'm not trying to minimize the
seriousness of the offense, I am asking that the Court, however, consider
a sentence of supervision.
THE COURT: I'm not doing that.
DEFENSE COUNSEL: Because—
THE COURT: Absolutely not. Not after what I heard at this trial."
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¶ 17 At the sentencing hearing, defense counsel observed that, with probation,
respondent would be required to be placed on the sex offender registry, which
could cause him to be deported; and that his family intended to pursue asylum
status based on respondent's having been recruited by gangs in Honduras.
¶ 18 Prior to sentencing respondent, the trial court offered respondent the
opportunity to address the court, which he declined. The trial court then
sentenced him, stating:
"THE COURT: You know, he is still denying what happened to his
probation officer, and I heard a trial, and the evidence against him was
frankly overwhelming, and what he did to [the victim] was inexcusable.
There is no reason for it. No reason at all.
It's a finding of best interest and wardship, 18 months probation ***."
¶ 19 On December 5, 2018, respondent filed a notice of appeal, and this
timely appeal followed.
¶ 20 ANALYSIS
¶ 21 On this appeal, respondent makes one claim, and it is a claim of
sentencing error. He argues that the trial court improperly considered his
maintenance of innocence as an aggravating factor and, thus, denied his request
for supervision. For the following reasons, we affirm.
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¶ 22 I. Forfeiture
¶ 23 As an initial matter, respondent concedes that he forfeited this issue for
our review by failing to object at sentencing. However, he asks this court to
review his claim under the second prong of the plain error doctrine.
¶ 24 To preserve a claim of sentencing error for review, an adult offender
must make both a contemporaneous objection and file a written postsentencing
motion that raises the issue. People v. Hillier, 237 Ill. 2d 539, 544 (2010).
However, a minor is not required to file a postsentencing motion. In re
Sammantha V., 234 Ill. 2d 359, 368 (2009). Thus, a minor only has to object
contemporaneously in order to preserve a claimed error for appellate review. In
re Sammantha V., 234 Ill. 2d at 368. In the case at bar, respondent concedes
that he failed to object and, thus, forfeited the issue.
¶ 25 However, we may still review the claimed error for plain error. To
obtain relief in the sentencing context under the plain error doctrine, a
defendant must, first, establish that a clear or obvious error occurred, and "then
show either that (1) the evidence at the sentencing hearing was closely
balanced, or (2) the error was so egregious as to deny the defendant a fair
sentencing hearing." Hillier, 237 Ill. 2d at 545. See also People v. Scott, 2015
IL App (4th) 130222, ¶ 41.
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No. 1-18-2581
¶ 26 Under either prong, the defendant has the burden of persuasion. Hillier,
237 Ill. 2d at 545. "If the defendant fails to meet his burden, the procedural
default will be honored." Hillier, 237 Ill. 2d at 545. In the case at bar,
respondent argues for error only under the second prong: that he was denied a
fair hearing. Thus, he attempts to satisfy his burden of persuasion only under
that prong. Hillier, 237 Ill. 2d at 545 ("A defendant who fails to argue for plain-
error review obviously cannot meet his burden of persuasion.").
¶ 27 "The initial analytical step under either prong of the plain error doctrine
is determining whether there was a clear or obvious error at trial." People v.
Sebby, 2017 IL 119445, ¶ 49. For the following reasons, we cannot find that a
clear or obvious error occurred.
¶ 28 II. Sentencing Hearing
¶ 29 "At the sentencing hearing" in a delinquency case, the trial court must
first "determine whether it is in the best interests of the minor or the public that
he or she be made a ward of the court." 705 ILCS 405/5-705(1) (West 2016).
Only if the respondent is made a ward of the court does the trial court proceed
to the second step, which is to "determine the proper disposition best serving
the interests of the minor and the public." 705 ILCS 405/5-705(1) (West 2016).
In the instant appeal, respondent does not challenge the first step of the
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No. 1-18-2581
sentencing hearing, namely, the trial court's finding that respondent should be
made a ward of the court.
¶ 30 At the sentencing hearing, "[a]ll evidence helpful in determining these
questions, including oral and written reports, may be admitted and may be
relied upon to the extent of its probative value, even though not competent for
the purposes of the trial." 705 ILCS 405/5-705(1) (West 2016).
¶ 31 III. Standard of Review
¶ 32 A trial court's selection of the best disposition or sentence in a juvenile
case will be reversed only if the trial court abused its discretion " 'by selecting
an inappropriate dispositional order.' " In re Seth S., 396 Ill. App. 3d 260, 275
(2009) (quoting In re J.W., 386 Ill. App. 3d 847, 856 (2008)); see also In re
Gennell C., 2012 IL App (4th) 110021, ¶ 11 ("abuse-of-discretion standard ***
applies to a trial court's selection of a disposition"). An abuse of discretion
occurs when the trial court's ruling is arbitrary, fanciful or so unreasonable that
no reasonable person would take the view adopted by the trial court. In re
Gennell C., 2012 IL App (4th) 110021, ¶ 11.
¶ 33 However, respondent argues that our standard of review should be de
novo. De novo consideration means that we perform the same analysis that a
trial judge would perform. People v. Gonzalez, 2018 IL App (1st) 152242, ¶ 78.
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¶ 34 In support of a de novo standard of review, respondent cites People v.
Winchester, 2016 IL App (4th) 140781, ¶ 72, which found: "Whether a trial
court considered an improper factor when sentencing a defendant is a question
of law, which we review de novo." However, in the next line, the Winchester
court stated: "There is a strong presumption the trial court based its sentencing
on proper legal reasoning." Winchester, 2016 IL App (4th) 140781, ¶ 72.
¶ 35 In Winchester, the appellate court concluded that, even where a prior
conviction is used to enhance an offense, a trial court may still consider the
nature and circumstances of the past conviction and may discuss issues such as
an "inability to learn" and "the protection of society." Winchester, 2016 IL App
(4th) 140781, ¶¶ 80-81. As a result, the Winchester court found no error, where
"[t]he State presented defendant's criminal history to show defendant's lack of
rehabilitative potential, the need for deterrence, and the concern it had over the
public's safety." Winchester, 2016 IL App (4th) 140781, ¶ 82.
¶ 36 Whether we apply the abuse-of-discretion standard urged by the State or
the standard articulated in Winchester as urged by respondent, the result here
would be the same.
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¶ 37 IV. People v. Ward
¶ 38 In support of his argument that the trial court relied on an inappropriate
factor, namely, the maintenance of his innocence, respondent relies on People v.
Ward, 113 Ill. 2d 516, 529 (1986).1
¶ 39 In Ward, as in the case at bar, the defendant had argued on appeal that
"the sentence was imposed as a result of his protestation of innocence." Ward,
113 Ill. 2d at 522. In Ward, our supreme court observed that, "when it is
evident from the judge's remarks that the punishment was, at least in part,
imposed because the defendant had refused to plead guilty but had instead
availed himself of his constitutional right to trial, the sentence will be set aside."
Ward, 113 Ill. 2d at 526. "[A] court may not penalize a defendant for asserting
his right to a trial." Ward, 113 Ill. 2d at 526.
¶ 40 However, before reversing on this ground, "it must be clearly evident that
the sentence was improperly imposed." Ward, 113 Ill. 2d at 526. "In making
this determination, the reviewing court should not focus on a few words or
statements of the trial court. Rather, the determination of whether or not the
1
We observe that in Ward, the supreme court applied an abuse-of-discretion
standard of review on this issue, thereby conflicting with the de novo standard of
review that respondent had argued for in the prior section. Ward, 113 Ill. 2d at 531
("Absent an abuse of this discretion, which we do not find evident from this record,
the trial court's sentence should not be altered.").
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sentence was improper must be made by considering the entire record as a
whole." Ward, 113 Ill. 2d at 526-27.
¶ 41 In Ward, the defendant "urge[d] this court to declare that a lack of
remorse is an improper factor to consider in imposing a sentence." Ward, 113
Ill. 2d at 527. However, our supreme court stated unequivocally: "We decline
to place such a restriction on the trial judge." Ward, 113 Ill. 2d at 527. Instead,
our supreme court found that "a lack of remorse" and a "failure to show a
penitent spirit" may "properly be considered in determining sentences." Ward,
113 Ill. 2d at 529. "The defendant's continued protestation of innocence and his
lack of remorse *** may not be automatically and arbitrarily applied as
aggravating factors." (Emphases added.) Ward, 113 Ill. 2d at 529. See also
People v. Scott, 2015 IL App (4th) 130222, ¶ 53 ("remand is not automatically
warranted when a trial court has considered an improper sentencing factor").
"Rather," the trial court must evaluate "the attitude of the defendant *** in light
of all the other information the court has." Ward, 113 Ill. 2d at 529.
¶ 42 In Ward, after the defendant asserted his innocence at sentencing, the
trial court responded: "what you are saying now almost makes me want to
sentence you to what the prosecutor is asking for, because you show no
repentance when you stand before me, no contrition." Ward, 113 Ill. 2d at 525.
After the trial court sentenced the Ward defendant, it stated: "I hope as you
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No. 1-18-2581
serve your sentence, that you will perhaps get some contrition and maybe
smarten up." Ward, 113 Ill. 2d at 525. Reviewing these statements, our
supreme court concluded: "There is no direct statement in this case which
indicates that the judge was predisposed to impose a more severe sentence
because of the defendant's failure to plead guilty ***." Ward, 113 Ill. 2d at 527.
¶ 43 Similarly, in the case at bar, the trial court's remarks at sentencing
indicate that it considered respondent's lack of contrition rather than a failure to
plead guilty. At sentencing, when explaining why it was rejecting supervision,
the trial court stated: "Not after what I heard at trial." While the trial court
would not have heard the evidence at trial if respondent had pleaded guilty,
once respondent exercised his right to go to trial, the trial court was statutorily
permitted to consider at sentencing all of the evidence that the court heard at
trial. See 705 ILCS 405/5-705(1) (West 2016).
¶ 44 The trial court sentenced respondent, stating: "You know, he is still
denying what happened to his probation officer, and I heard a trial, and the
evidence against him was frankly overwhelming, and what he did to [the
victim] was inexcusable. There is no reason for it. No reason at all." With
words such as "inexcusable," the trial court was expressing its frustration with
respondent's continued lack of contrition and acceptance of responsibility, in
light of the "overwhelming" evidence heard by the court. In Ward, our supreme
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court found no abuse of discretion in the trial court's consideration of the
defendant's lack of "repentance in light of the finding by the court that he was
guilty." Ward, 113 Ill. 2d at 530-31. Following Ward, we also can find no
error.
¶ 45 Without a clear and obvious error, there can be no plain error. Sebby,
2017 IL 119445, ¶ 49 ("The initial analytical step under either prong of the
plain error doctrine is determining whether there was a clear or obvious error.")
Even if we could find an error, the claimed error here would not rise to the level
of plain error and would not be sufficient to invoke the second prong of the
plain error rule. "[T]he second prong of the rule should only be invoked when
the alleged error is 'so serious that its consideration is necessary to preserve the
integrity and reputation of the judicial process.' " Scott, 2015 IL App (4th)
130222, ¶ 43 (quoting People v. Rathbone, 345 Ill. App. 3d 305 (2003)). In
Scott, for example, the appellate court found that the trial court considered an
improper factor in sentencing but that the particular error was "insignificant" to
the trial court's sentencing decision and, thus, did not rise to the level of second-
prong plain error. Scott, 2015 IL App (4th) 130222, ¶¶ 51-53. The record
before us shows that the weight—if any—that the trial court placed on the fact
that respondent pled not guilty and chose to go to trial was insignificant,
compared to the evidence that the trial court heard at trial which it found to be
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No. 1-18-2581
"overwhelming" and "inexcusable." Thus, even if we could find a clear and
obvious error—and we do not find it—the claimed error does not rise to the
level of second-prong plain error on the facts of this case.
¶ 46 In sum, the trial court stated repeatedly that it was basing respondent's
sentence on the evidence that it heard at trial, which it found to be both
overwhelming and demonstrative of inexcusable conduct. The State's pretrial
offer was for only six months less of probation than what respondent received
after trial. On these facts, we cannot find evidence of a "trial tax" or that the
trial court penalized respondent for exercising his right to a trial.
¶ 47 CONCLUSION
¶ 48 For the foregoing reasons, we affirm the trial court's adjudication and
sentence.
¶ 49 Affirmed.
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