People v. Boger

2023 IL App (5th) 220241-UNOTICE
NOTICE
Decision filed 03/29/23. The
This order was filed under
text of this decision may be NO. 5-22-0241
Supreme Court Rule 23 and is
changed or corrected prior to
not precedent except in the
the filing of a Petition for IN THE limited circumstances allowed
Rehearing or the disposition of
under Rule 23(e)(1).
the same.
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Lawrence County.
)
v. ) No. 19-CF-141
)
BRANDY BOGER, ) Honorable
) Robert M. Hopkins,
Defendant-Appellant. ) Judge, presiding.
______________________________________________________________________________
JUSTICE WELCH delivered the judgment of the court.
Justices Moore and Barberis concurred in the judgment.
ORDER
¶1 Held: The trial court did not abuse its discretion in sentencing the defendant to four
years’ imprisonment.
¶2 The State charged the defendant, Brandy Boger, with one count of methamphetamine
delivery of more than 5 grams but less than 15 grams (720 ILCS 646/55(a)(1), (a)(2)(B) (West
2018)), a Class 1 felony, and one count of methamphetamine delivery of less than 5 grams (id.
§ 55(a)(1), (a)(2)(A)), a Class 2 felony. Thereafter, the defendant entered an open plea of guilty
to one count of delivery of less than five grams of methamphetamine, and the trial court sentenced
her to four years’ imprisonment. On appeal, the defendant challenges her sentence as excessive.
For the reasons that follow, we affirm the order of the circuit court of Lawrence County.
1
¶3 I. BACKGROUND
¶4 On December 19, 2019, the State charged the defendant with two counts of
methamphetamine delivery: one count of delivery of more than 5 but less than 15 grams of
methamphetamine and one count of delivery of less than 5 grams of methamphetamine.
¶5 On July 7, 2021, the defendant entered an open plea of guilty to one count of delivery of
less than five grams of methamphetamine, a Class 2 felony. In exchange for the plea, the State
agreed to dismiss the other methamphetamine delivery charge. Before accepting the plea, the trial
court made sure that the defendant understood the nature of the plea and had an opportunity to
discuss it with counsel, admonished her about the minimum and maximum sentences prescribed
by law, and admonished her about the rights she was giving up by pleading guilty. Thereafter, the
court accepted the defendant’s guilty plea and found that it was knowingly and voluntarily made.
¶6 In October 2021, the defendant tested positive for amphetamine. Subsequently, in
November 2021, the defendant entered inpatient substance abuse treatment and completed the
program on December 9, 2021.
¶7 The trial court held the sentencing hearing on January 19, 2022. At the hearing, the
defendant testified that she had been employed at Addus HomeCare providing home healthcare to
her father, who was dying of double lung failure. However, because she was charged with the two
felonies, she could no longer work for Addus unless she obtained a waiver from the State. She
had two children, ages 23 and 15, and they resided with her. She recently completed inpatient
drug treatment and was given a treatment plan upon discharge, which included ongoing
counseling. She was currently participating in weekly, individual counseling, and her most recent
session was January 13. She was told that she would have employment at the TBIN factory in
Princeton, Indiana, if she was sentenced to probation. She had a 2016 felony conviction for the
2
unlawful purchase of methamphetamine precursor for which she received probation. She then
violated probation in 2017 and was resentenced to a term of imprisonment. She also had two
charges that occurred in 2020 (after the present case) in Vanderburgh County, Indiana, for forgery
and possession of a controlled substance. She pled guilty and was sentenced to 18 months’
probation, which she successfully completed.
¶8 After the defendant’s testimony, the State offered no testimony in rebuttal but
recommended the defendant be sentenced to six years’ imprisonment. The State argued that the
trial court should consider the following aggravating factors when imposing the sentence. The
first aggravating factor was the defendant’s prior history of criminal activity. The State noted that
the defendant failed to successfully complete probation with regard to the unlawful purchase of
methamphetamine precursor conviction and was resentenced to 18 months’ imprisonment. The
State also noted that she committed the offenses in Vanderburgh County after the charges here
were filed. The second aggravating factor was that the sentence would be necessary to deter others
from committing the same offense. The State argued that methamphetamine was a big problem in
the county, and a substantial amount of the felony cases filed involved the use of
methamphetamine, which was made possible by the individuals who were willing to distribute it.
The State then acknowledged and commended the defendant’s progress in addressing her
substance abuse issues. However, the State argued that, based on the seriousness of the charge
and the issue with methamphetamine in the county, the court should impose a sentence of six
years’ imprisonment.
¶9 In response, defense counsel argued that the defendant should receive a sentence of
probation. In making this argument, counsel acknowledged that there was a methamphetamine
problem in Lawrence County but argued that many users often became involved in the delivery of
3
methamphetamine to other users. Counsel noted that the defendant had taken significant steps to
address her substance abuse issues; she completed residential treatment and, after discharge, began
participating in individual counseling. Counsel argued that this was a good indication of what her
efforts would be moving forward. Counsel also argued that the trial court should consider that the
defendant was responsible for caring for her children as well as her father; her previous
employment; and the fact that, if sentenced to probation, she would have gainful employment.
Thus, counsel argued that the defendant demonstrated that probation was best for herself as well
as for the community.
¶ 10 After hearing the testimony and counsels’ arguments, the trial court sentenced the
defendant to four years’ imprisonment to be followed by one year of mandatory supervised release.
In imposing this sentence, the court noted that it considered the defendant’s testimony, the
presentence investigation report, and counsels’ arguments. The court noted that it considered that
the defendant’s criminal conduct neither caused or threatened serious physical harm to another as
a mitigating factor.
¶ 11 In aggravation, the trial court considered that the defendant had a fairly substantial history
of prior criminal activity, which included the 2016 methamphetamine precursor conviction; a prior
conviction for driving under the influence of alcohol in 2014; a 2013 theft conviction in Knox
County, Indiana; and a Class A misdemeanor theft conviction in 2012. The court also considered
the Vanderburgh County offenses, which occurred in January 2020, after this case was filed.
¶ 12 The trial court further considered that the sentence may be necessary to deter others from
committing the same crime. The court noted that methamphetamine delivery cases in Lawrence
County were “very few” while there were many charges filed relating to possession. The court
stated that it treated delivery cases in a different class than possession cases. The court then stated
4
that “doesn’t mean that [rehabilitation] *** as far as addiction to methamphetamine is not a very
good thing for people who are charged with delivery, but it isn’t the whole story because obviously
when you deliver [methamphetamine] to other people, other people are having their addictions
fed.” The court noted that a lot of the crimes committed in the county resulted from the use of
methamphetamine as well as from the fact that the users must find money to pay for it. The court
also noted that methamphetamine was a very serious issue that must be dealt with and had been
the “scourge” of Lawrence County for close to 20 years.
¶ 13 The trial court then noted that the defendant had been previously placed on probation, but
she failed to successfully complete that probation and was subsequently sentenced to
imprisonment. Although the court noted that she had been much more compliant in this case, the
court stated that she was faced with a much more substantial sentence here than in the other case.
¶ 14 On February 18, 2022, the defendant filed a pro se motion to withdraw her guilty plea. On
April 20, 2022, the defendant’s counsel filed an amended motion to withdraw the guilty plea,
arguing that, when entering her guilty plea, the defendant expected to be sentenced to probation
and that her sentence was excessive. Counsel also filed a certificate of compliance with Illinois
Supreme Court Rule 604(d) (eff. Feb. 6, 2013).
¶ 15 Also, on April 20, the trial court held a hearing on the amended motion to withdraw guilty
plea. At the hearing, the defendant testified that, at the time that she entered into the guilty plea,
her understanding was that she would be sentenced to probation if she went to substance abuse
treatment. Following her testimony, the defendant’s counsel argued that, at the time that the
defendant entered her guilty plea, she did not realize what the ultimate outcome would be and that,
in light of her history, the sentence was excessive. Counsel requested that the defendant’s sentence
be reduced to probation, or she be granted leave to withdraw the plea. In response, the State
5
contended that there was no agreement for probation made to the defendant, although she might
have hoped for that outcome. After hearing the arguments, the trial court denied the amended
motion to withdraw the plea. The defendant appeals her sentence as excessive.
¶ 16 II. ANALYSIS
¶ 17 On appeal, the defendant argues that the trial court abused its discretion by sentencing her
to 4 years’ imprisonment where she had a substantial history of employment as a certified nursing
assistant for 17 years, was employed at the time of the offense, and had employment available if
she was sentenced to probation; where she had two children living with her, and she cared for her
dying father; and where she had undergone substance abuse treatment for the methamphetamine
addiction that was the root of her criminal activity. Also, the defendant contends that her conduct
did not cause or threaten serious harm; she had no criminal record until her problems with
substance abuse began in 2012; before this conviction, she was convicted of less serious,
nonviolent offenses; and her performance during her more recent probation showed her
rehabilitative potential. Although the defendant’s counsel requested probation at sentencing, in
her appellate brief, the defendant requests that we reduce her sentence to the three-year minimum
sentence of imprisonment.
¶ 18 When a defendant challenges a sentence, the standard of review is whether the trial court
has abused its discretion in imposing the sentence. People v. Davis, 368 Ill. App. 3d 17, 23 (2006).
A trial court has broad discretionary powers in determining a sentence, and its decisions are
afforded great deference. People v. Stacey, 193 Ill. 2d 203, 209 (2000). This level of deference is
given because a trial court has superior opportunity to weigh such factors as defendant’s
credibility, demeanor, general moral character, mentality, social environment, habits, and age. Id.Although a reviewing court has the power to reduce or alter a sentence, this power should be
6
exercised cautiously and sparingly. People v. Alexander, 239 Ill. 2d 205, 212 (2010). Absent an
abuse of discretion, a reviewing court will not disturb a sentence that falls within the prescribed
statutory limits. People v. Maldonado, 240 Ill. App. 3d 470, 484 (1992). A sentence will be
deemed excessive and the result of an abuse of discretion where it is greatly at variance with the
spirit and purpose of the law, or manifestly disproportionate to the nature of the offense. Stacey,
193 Ill. 2d at 210.
¶ 19 A proper sentence balances the seriousness of the offense with the objective of restoring a
defendant’s rehabilitative potential. Ill. Const. 1970, art. I, § 11. The Unified Code of Corrections
sets out certain statutory factors in aggravation and mitigation that a trial court must consider when
imposing a sentence of imprisonment. 730 ILCS 5/5-5-3.1, 5-5-3.2 (West 2020). In fashioning
the appropriate sentence, the court must carefully consider all of the factors in aggravation and
mitigation, and other factors, such as defendant’s age, demeanor, habits, credibility, criminal
history, social environment, and education as well as the nature and circumstances of the crime
and of defendant’s conduct in the commission of the crime. People v. Quintana, 332 Ill. App. 3d
96, 109 (2002). When such factors have been presented for the trial court’s consideration, it is
presumed, absent some contrary indication, that the factors have been considered. People v.
Flores, 404 Ill. App. 3d 155, 158 (2010). A trial court has wide latitude in sentencing a defendant,
as long as it neither ignores relevant mitigating factors nor considers improper factors in
aggravation. Id. at 157.
¶ 20 Here, the defendant pled guilty to delivery of less than five grams of methamphetamine,
which was a Class 2 felony with a sentencing range of three to seven years’ imprisonment. 720
ILCS 646/55(a)(1), (a)(2)(A) (West 2020); 730 ILCS 5/5-4.5-35(a) (West 2020). In sentencing
her to four years’ imprisonment, the sentence was within the prescribed sentencing range and
7
below the State’s recommendation (the State recommended a sentence of six years). Before
announcing the sentence, the trial court was presented with the defendant’s testimony about her
employment history, being the caretaker for her dying father and having her two children living
with her, and her completion of inpatient substance abuse treatment and having a treatment plan
for her ongoing outpatient treatment. The court was also presented with evidence of her criminal
history and argument concerning the fact that her conduct neither caused nor threatened serious
physical harm to another. However, the presence of mitigating factors does not mandate the
imposition of the minimum sentence. Flores, 404 Ill. App. 3d at 158. After considering this
evidence in mitigation, the court imposed a sentence that was one year more than the minimum
sentence.
¶ 21 In making this decision, the trial court noted that the most important convictions in the
defendant’s criminal history were the 2016 conviction for unlawful purchase of a
methamphetamine precursor and the 2013 felony theft conviction. The court noted that the
defendant also pled guilty to forgery and possession of a controlled substance, offenses that were
committed close in time to the offense at issue here. Although the defendant had successfully
completed probation in that case, she had previously violated probation with regard to the
methamphetamine precursor conviction and was resentenced to 18 months’ imprisonment. The
court acknowledged that she had been more compliant in this case but noted that she faced a much
more substantial sentence for this Class 2 felony.
¶ 22 The trial court also found significant the need for deterrence, noting that methamphetamine
was a serious societal issue. The court acknowledged the defendant’s substance abuse issues and
her efforts at rehabilitation but noted that this was not the whole story because the defendant’s
criminal conduct was feeding others’ addictions rather than just being a by-product of a substance
8
abuse issue that she suffered. Although the defendant’s substance abuse issues can be considered
as evidence in mitigation at sentencing, drug addiction is not a statutorily-mandated mitigating
factor that must be considered. See People v. Whealon, 185 Ill. App. 3d 570, 573 (1989).
¶ 23 After carefully evaluating the mitigating factors, which included the defendant’s
rehabilitative potential, and the aggravating factors, which included the need for deterrence and
the seriousness of the offense, the trial court imposed a sentence that was one year above the
minimum. The court was not required to afford greater weight to the defendant’s rehabilitative
potential or other mitigating factors than the seriousness of the offense. See People v. Pippen, 324
Ill. App. 3d 649, 652 (2001). Also, when reviewing a sentence imposed by the trial court, this
court is not to reweigh the factors considered by the trial court. See Flores, 404 Ill. App. 3d at
158. Thus, the defendant’s contention that the trial court failed to give proper weight to the
mitigating factors is without merit, and we do not find that the court abused its discretion in this
regard.
¶ 24 III. CONCLUSION
¶ 25 For the foregoing reasons, we affirm the judgment of the circuit court of Lawrence County.
¶ 26 Affirmed.
9