People v. Xayvong

2023 IL App (2d) 220132-UNo. 2-22-0132
Order filed March 1, 2023
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent
except in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Kane County.
)
Plaintiff-Appellee, )
)
v. ) No. 19-CF-1340
)
KHAMSAUME XAYVONG, ) Honorable
) David P. Kliment,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE HUTCHINSON delivered the judgment of the court.
Presiding Justice McLaren and Justice Jorgensen concurred in the judgment.
ORDER
¶1 Held: Defendant’s 25-year sentence for aggravated criminal sexual assault was not
excessive given defendant’s criminal history and the gravity of the offense, which
involved an unprovoked sexual attack on the elderly victim, with whom defendant
had developed a familial and trusting relationship over the decades.
¶2 Following a bench trial, defendant, Khamsaume Xayvong, was convicted of aggravated
criminal sexual assault of a victim 60 years of age or older (720 ILCS 5/11-1.30(a)(5) (West
2018)), battery (id. § 12-3(a)), and unlawful restraint (id. § 10-3(a)). The victim, G.L., was 71
years old when the offenses occurred. The aggravated-criminal-sexual-assault conviction merged
with the battery conviction for purposes of sentencing. Defendant was sentenced to 25 years for
2023 IL App (2d) 220132-Uaggravated criminal sexual assault and a consecutive term of 3 years for unlawful restraint. In this
timely filed appeal, defendant argues that error arose when he was sentenced to 25 years’
imprisonment for aggravated criminal sexual assault. We disagree. Thus, we affirm.
¶3 I. BACKGROUND
¶4 Defendant was born in Laos in 1962. He was homeless for many years and fled to Thailand
when he was 18. He lived in a refugee camp in Thailand for 10 months before he received asylum
in the United States. In the early 1980s, defendant met G.L. and her family, who live in Aurora.
G.L., whose best friend is defendant’s sister, treated defendant like her son. Defendant
reciprocated. He referred to G.L. as his mother and frequently visited G.L. and her family.
¶5 Defendant lived a law-abiding life for the next 10 years. In 1993, defendant was convicted
of unlawful possession of a weapon and given probation. In 1996, defendant “used a machete to
chop somebody up *** that he didn’t want *** to live anymore.” He was convicted of attempted
murder and sentenced to 15 years’ imprisonment. After serving 10 years, defendant was released.
From 2005 to 2018, defendant lived intermittently in a homeless shelter in Aurora. In 2012,
defendant was convicted of theft and sentenced to 38 days in jail. In 2015, he was convicted of
battery and sentenced to conditional discharge.
¶6 In the summer of 2018, defendant moved in with G.L. and lived in her basement with two
other people. Defendant was employed, helped pay for food and utilities, and did various
household chores.
¶7 Defendant and G.L. lived together peacefully until July 6, 2019. At around 3:30 p.m. that
day, defendant came home from work. He was carrying two cans of beer and asked G.L. if she
wanted to drink with him. She declined. G.L. offered defendant something to eat, he accepted, and
the two ate separately in the same room. When defendant finished eating, G.L. asked him to go to
-2-
2023 IL App (2d) 220132-Uthe basement. He refused, and G.L. became upset. When G.L. walked away, defendant grabbed
her from behind, pushed her against a table abutting an open window, and shoved his hands inside
her underwear. Defendant penetrated G.L.’s vagina with all his fingers. G.L. screamed for help.
G.L.’s neighbor heard her and came to her rescue. Defendant fled. G.L. sustained lacerations to
her vagina, external bruising and abrasions, and psychological trauma.
¶8 After trial, defense counsel filed a posttrial motion. Before the trial court ruled on that
motion, a presentence investigation report (PSI) was prepared. Defendant sent the PSI investigator
around 32 pieces of scrap paper that the PSI investigator tried to decipher. These notes concerned
the PSI investigator, so she alerted defense counsel.
¶9 Defense counsel moved to continue the sentencing hearing so that the Kane County
Diagnostic Center could evaluate defendant. In making that request, counsel said, “Judge, I clearly
state that I am not raising a bona fide doubt for the purpose of the trial.” Counsel was “not terming
it as fitness so much as a full psychological evaluation[.]” She explained that if defendant’s fitness
was an issue, the evaluation would bear that out. She also noted that the evaluation would be
relevant for “mitigation.” The trial court agreed to continue the sentencing hearing so that
defendant could undergo the evaluation. The court noted that defendant appeared to have difficulty
understanding what he heard in court. The court remarked that it had attributed defendant’s
difficulty to a language barrier rather than a fitness issue, yet defendant had repeatedly denied the
court’s offers of a courtroom translator.
¶ 10 On the next court date, the trial court noted that it “did receive a copy of [the] evaluation,
and *** read it.” Defense counsel responded that she, too, “read [the evaluation], and [she was]
satisfied that at least the issues [she] was concerned about are not present, as far as the [evaluator]
can tell.” Counsel noted that the “evaluator didn’t make a finding of any mental[-]health problems
-3-
2023 IL App (2d) 220132-Ubut then [he] recommend[ed] substance abuse and MRT [Moral Recognition Therapy] as possible
remedies for something he was unable to diagnose.”
¶ 11 Evidence presented at sentencing revealed that, every week for the past two years, G.L.
was receiving treatment from a clinical mental health counselor. G.L. saw the counselor in her
home, as she was afraid to leave her home without someone escorting her. G.L. was very religious
and had lived an active social life before the assault, but since then she left her home only to attend
church services. She also entertained very few visitors in her home. She slept poorly and had
nightmares about the attack. She believed defendant would have killed her during the attack if her
neighbor had not intervened, and she feared that defendant would kill her if he was released.
According to G.L., defendant’s sister warned her that defendant would kill G.L. if he had the
chance. G.L. pleaded for the trial court to “put [defendant] away and never let him out[ ]” or at
least give defendant the “strictest sentence possible.” During closing argument at the sentencing
hearing, the State went through the factors in aggravation and asked the court to impose a 20-year
sentence. Defense counsel addressed mitigating factors not delineated in section 5-3-1 of the
Unified Code of Corrections (730 ILCS 5/5-3-1 (West 2020)). For example, counsel asserted that
defendant endured much trauma throughout his life and that he loved G.L.
¶ 12 In sentencing defendant to 25 years for aggravated criminal sexual assault, the trial court
noted that it considered the evidence presented at trial, which it “remember[ed] *** very clearly.”
The court found defendant’s acts “outrageous, unprovoked in any way, unsolicited in any way.”
The court also stated that it considered, among other things, the PSI, “the financial impact of
incarceration[,]” and “the evidence and information offered by both sides in aggravation and
mitigation[.]” The court noted that, because defendant did not make a statement in court, it had to
look to the PSI for expressions of remorse. The court commented that defendant’s remarks in the
-4-
2023 IL App (2d) 220132-UPSI showed that he felt sorry for himself, not G.L. Specifically, defendant complained that he was
missing work because of this case, and felt falsely accused by G.L., whom defendant described as
“ ‘crazy’ ” and “ ‘mentally ill.’ ” Concerning the factors in mitigation and aggravation, the court
observed,
“Counsel for the defense discusses repeatedly mental[-]health issues. He was
evaluated, and he was found to be fit. I am not considering mental[-]health issues.”
The court never articulated what, if any, rehabilitative potential defendant had. The court also
never ruled on defendant’s posttrial motion.
¶ 13 Defendant appealed, and defense counsel moved for a summary remand because
defendant’s posttrial motion remained pending in the trial court. We granted that motion and
remanded the case. Thereafter, the trial court denied defendant’s posttrial motion, and defendant
filed a timely amended notice of appeal.
¶ 14 II. ANALYSIS
¶ 15 Defendant argues on appeal that error arose when he was sentenced to 25 years’
imprisonment for aggravated criminal sexual assault. Defendant acknowledges that he forfeited
review of this issue by failing to raise it below in a motion to reconsider his sentence. People v.
Johnson, 2021 IL App (2d) 180775, ¶ 12. Nevertheless, he contends that we may consider the issue
(1) under the plain-error rule or (2) because defense counsel was ineffective for failing to raise the
issue in the trial court.
¶ 16 “ ‘Plain error is a limited and narrow exception to the general forfeiture rule.’ ” Id. ¶ 14(quoting People v. Walsh, 2016 IL App (2d) 140357, ¶ 17). “ ‘To obtain relief under the plain-
error rule, a defendant must show that a clear or obvious error occurred.’ ” Id. (quoting Walsh,
2016 IL App (2d) 140357, ¶ 17). “ ‘If a clear or obvious error is identified, a defendant may obtain
-5-
2023 IL App (2d) 220132-Urelief if the error complained of meets either prong of the two-pronged plain-error rule.’ ” Id.(quoting Walsh, 2016 IL App (2d) 140357, ¶ 17). “In the sentencing context, a defendant must ***
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.” People v. Hillier, 237 Ill. 2d
539, 545 (2010).
¶ 17 “A claim of ineffective assistance of counsel requires a defendant to establish [(1)] that his
attorney’s performance fell below an objective standard of reasonableness and [(2)] that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” People v. Miller, 2014 IL App (2d) 120873, ¶ 18. “Counsel will not
be deemed ineffective for failing to raise a meritless issue.” Id.¶ 18 “[U]nder either theory”—i.e., plain error or ineffective assistance of counsel—“ we first
consider whether [the] defendant’s proposed issue has merit.” Id. ¶ 19. If the issue counsel failed
to raise lacks merit, there can be neither plain error nor a basis for an ineffectiveness claim. Id.(citing People v. Cosby, 231 Ill. 2d 262, 273 (2008) (in plain-error review, “[a]bsent reversible
error, there can be no plain error”); see also People v. Coleman, 158 Ill. 2d 319, 349 (1994) (where
no error occurred, there can be no prejudice and counsel cannot be ineffective for failing to raise
the issue).
¶ 19 With these principles in mind, we turn to whether error arose when defendant was
sentenced to 25 years’ imprisonment for aggravated criminal sexual assault. “[T]he trial court is
in the best position to fashion a sentence that strikes an appropriate balance between the goals of
protecting society and rehabilitating the defendant.” People v. Risley, 359 Ill. App. 3d 918, 920
(2005). Thus, we will not disturb a sentence within the applicable sentencing range unless the trial
court abused its discretion. People v. Stacey, 193 Ill. 2d 203, 209-10 (2000). A sentence is an abuse
-6-
2023 IL App (2d) 220132-Uof discretion only if it is at great variance with the spirit and purpose of the law or manifestly
disproportionate to the nature of the offense. Id. at 210. We may not substitute our judgment for
that of the trial court merely because we might weigh the pertinent factors differently. Id. at 209.
¶ 20 In determining an appropriate sentence, relevant considerations include (1) the nature of
the crime, (2) protection of the public, (3) deterrence, (4) punishment, and (5) the defendant’s
rehabilitative prospects. People v. Kolzow, 301 Ill. App. 3d 1, 8 (1998). The weight to be attributed
to each factor in aggravation and mitigation depends upon the circumstances of the case. Id. “The
seriousness of the crime is the most important factor in determining an appropriate sentence, not
the presence of mitigating factors.” People v. Quintana, 332 Ill. App. 3d 96, 109 (2002). Moreover,
the trial court need not recite all aggravating and mitigating factors before imposing a sentence.
People v. Spicer, 379 Ill. App. 3d 441, 469 (2007). Rather, we presume that the trial court
considered all relevant mitigating factors in determining a sentence. People v. Flores, 404 Ill. App.
3d 155, 158 (2010). We will not consider this presumption overcome without explicit evidence
from the record that the trial court did not consider those factors. Id.¶ 21 Here, there is no dispute that defendant faced a sentence between 6 and 30 years for
aggravated criminal sexual assault, which is a Class X felony. 720 ILCS 5/11-1.30(a)(5), (d)(1)
(West 2020); 730 ILCS 5/5-4.5-25(a) (West 2020). Because defendant’s 25-year sentence fell
within this range, we must presume it is presumptively proper. See People v. Branch, 2018 IL App
(1st) 150026, ¶ 35.
¶ 22 Nevertheless, defendant argues that the sentence is improper because it “fails to reflect
consideration of [defendant’s] mental illness, his rehabilitative potential, or an appropriate
balancing of rehabilitation and retribution.” Defendant claims that, when the trial court asserted
that it was “ ‘not considering mental[-]health issues’ ” because defendant “ ‘was evaluated and
-7-
2023 IL App (2d) 220132-U*** found fit,’ ” the court “plainly erred” because it “equated a finding of fitness to a lack of
mental[-]health issues.” Moreover, defendant contends that the court failed to consider that, given
his age (59), the length of his sentence, and the grueling life of a prisoner, he may likely die in
prison—after the State expends large sums on his incarceration. We reject defendant’s arguments
for several reasons.
¶ 23 First, the record clearly reveals that defense counsel requested a mental-health evaluation
because of issues about defendant’s mental health, not merely his fitness to participate in the
proceedings. Although counsel noted that the evaluation would disclose any fitness issues, counsel
also believed that the evaluation would be useful in preparing mitigating evidence for sentencing.
The trial court reviewed the completed evaluation and indicated that defendant did not have any
diagnosed mental-health issues, a fact to which defense counsel, too, conceded. Given all that
transpired, we believe that, when the court noted that the evaluator found defendant “fit,” the court
was referring to defendant’s mental health, and not just to his fitness to participate in the
proceedings. Thus, because the record does not disclose that defendant suffered from any
diagnosed mental illness, we can find no error in the trial court’s statement that it would “not
consider[ ] mental[-]health issues” in sentencing defendant.
¶ 24 Second, nothing in the record indicates that the trial court failed to consider the mitigating
evidence presented. Indeed, the court expressly noted that it considered the cost to imprison
defendant, the mitigating factors, and the evidence presented in the PSI. Although the court did
not specifically mention defendant’s rehabilitative potential or age, the record does not overcome
the presumption that the court considered those factors. See People v. McCain, 248 Ill. App. 3d
844, 853 (1993) (“[W]here *** the sentencing court examines the [PSI], it is presumed that the
court took into account the defendant’s potential for rehabilitation.”).
-8-
2023 IL App (2d) 220132-U¶ 25 Moreover, we cannot conclude that the sentence was improper given, most notably, the
seriousness of the crime. The crime was, as the trial court found, “outrageous.” Defendant
exploited a position of trust when he sexually violated G.L., an elderly woman who welcomed
defendant into her home and treated him like family. Not only did G.L.’s previously vibrant social
life drastically change after the attack, but she now lives in a constant state of fear. G.L. locks her
bedroom door at night and ventures outside her home only occasionally and if escorted. She is
forever afraid that defendant would kill her if he is released—and her fear is doubtless legitimate,
as defendant’s own sister warned her of that danger, to say nothing of his significant, violent
criminal history. Yet, despite the gravity of the offense and defendant’s prior attempted murder,
the court sentenced defendant to 5 years less than the maximum term.
¶ 26 Given the above, we cannot conclude that the trial court abused its discretion in sentencing
defendant to 25 years’ imprisonment for aggravated criminal sexual assault. And, because there is
no error, there can be no plain error. Cosby, 231 Ill. 2d at 273. Likewise, we cannot deem defense
counsel ineffective for failing to raise a meritless sentencing claim. Coleman, 158 Ill. 2d at 349.
¶ 27 III. CONCLUSION
¶ 28 Having found no error in defendant’s sentence, we affirm the judgment of the circuit court
of Kane County.
¶ 29 Affirmed.
-9-