People v. Hileman

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Appellate Court Date: 2021.08.02
11:11:58 -05'00'
People v. Hileman, 2020 IL App (5th) 170481Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption RODERICK L. HILEMAN, Defendant-Appellant.
District & No. Fifth District
No. 5-17-0481
Rule 23 order filed December 1, 2020
Motion to
publish allowed December 21, 2020
Opinion filed December 21, 2020
Decision Under Appeal from the Circuit Court of Union County, No. 15-CM-146; the
Review Hon. Charles C. Cavaness, Judge, presiding.
Judgment Affirmed.
Counsel on James E. Chadd, John M. McCarthy, and Jessica L. Harris, of State
Appeal Appellate Defender’s Office, of Springfield, for appellant.
Daniel Klingemann, State’s Attorney, of Jonesboro (Patrick Delfino,
Patrick D. Daly, and Valerie A. Ozment, of State’s Attorneys
Appellate Prosecutor’s Office, of counsel), for the People.
Panel JUSTICE WHARTON delivered the judgment of the court, with
opinion.
Justices Cates and Barberis concurred in the judgment and opinion.
OPINION
¶1 The defendant, Roderick L. Hileman, was convicted of one count of escape (720 ILCS
5/31-6(c) (West 2014)), three counts of obstruction of a peace officer (id. § 31-1(a)), and one
count of aggravated assault (id. § 12-2(b)(4)(i)). The defendant appeals his conviction for
escape, arguing that the evidence was insufficient to prove beyond a reasonable doubt that he
was in lawful custody, an element of the offense. He appeals all of his convictions, arguing
that the court’s failure to fully comply with Illinois Supreme Court Rule 431(b) (eff. July 1,
2012) constituted plain error. Finally, he appeals his sentence for aggravated assault, arguing
that the court impermissibly considered a factor inherent in the offense—the threat of harm—
as an aggravating factor. We affirm.
¶2 I. BACKGROUND
¶3 On July 20, 2015, Officer Josh Ehler encountered the defendant in the parking lot of the
Blue Fish Liquor Store in Anna, Illinois. At the defendant’s trial in this matter, Officer Ehler
testified that he was on patrol sometime after midnight when he noticed an individual sitting
on some rocks at the edge of the parking lot of Blue Fish Liquor. The individual, who was later
identified as the defendant, was holding what appeared to be a beer can. Because consumption
of alcohol in public violates an Anna city ordinance, Officer Ehler pulled into the parking lot,
approached the defendant, and spoke to him through the open window of his squad car.
¶4 According to Officer Ehler, the defendant appeared to be intoxicated. When Officer Ehler
asked the defendant about the beer can, the defendant told him he was old enough to drink.
Officer Ehler explained that a local ordinance prohibited him from having an open container
in public. He testified that the defendant approached the vehicle, leaned into the window, and
cursed at Officer Ehler. Officer Ehler drove his vehicle to another part of the parking lot and
called dispatch to request back-up.
¶5 Officer Ehler testified that he then approached the defendant once again. This time, he got
out of his vehicle. He asked the defendant for identification because it was police protocol to
do so. The defendant took out his wallet and began “fumbling” through it, but he did not
produce an identification card. While this was taking place, Officer Leek pulled into the
parking lot.
¶6 Officer Ehler testified that the defendant told him to take his badge off and said he would
“beat [his] fucking ass.” Officer Ehler interpreted this as “an aggressive threat.” He then took
out a pair of handcuffs and told the defendant to place his arms behind his back because he
was under arrest. The defendant did not comply. Instead, he “took an aggressive stance.”
Officer Ehler stated that he reached out, grabbed the defendant’s left arm, and pulled his hand
behind his back. He testified, “I attempted to walk him towards my patrol car in order to place
him against it to try to gain control over the suspect.” At this point, Officer Leek grabbed the
defendant’s right arm “to help gain control.” Asked if this meant that the defendant “was
walking towards the car” with both officers, he replied, “Yes.”
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¶7 Officer Ehler testified that the defendant pulled both of his arms free from the officers’ grip
and then “took off running.” Officer Ehler yelled to him twice, directing him to stop; however,
the defendant continued running. The officers ran after the defendant, who ran towards Vienna
Street. Based on the defendant’s verbal threat and resistance to arrest, Officer Ehler believed
that he may have committed a crime. As such, he explained, he did not want to let the defendant
“run off into the night.” He therefore used his TASER on the defendant. The defendant, who
was running at full speed, tensed up and fell forward. Officer Ehler explained that, when a
TASER is used on a suspect, it “locks all the muscles up.” As such, the defendant was unable
to put his hands out to brace himself when he fell.
¶8 According to Officer Ehler, when he and Officer Leek approached the defendant, they
noticed that he was unconscious and that his face was bleeding. Officer Leek handcuffed the
defendant and called for an ambulance. According to Officer Ehler, the defendant regained
consciousness before the ambulance arrived a few minutes later.
¶9 On cross-examination, Officer Ehler testified that he placed the defendant under arrest
because he believed he was in danger of receiving a battery due to the defendant’s threat. He
acknowledged, however, that the defendant did nothing other than threaten him verbally.
Officer Ehler further testified that the emergency room physician who treated the defendant
told him that the defendant’s injuries were minor and would heal on their own. When shown
photographs of the defendant’s injuries, however, Officer Ehler acknowledged that there were
injuries on both sides of the defendant’s face. He denied that these injuries resulted from a
beating by police. When asked by defense counsel whether his police report was “almost a
duplicate” of Officer Leek’s report, Officer Ehler acknowledged that it was. However, he
denied that he and Officer Leek discussed the matter and “came up with a story”; rather, he
testified that the reports were nearly identical “because that’s what happened.”
¶ 10 Defense counsel asked, “Did you ever have him in custody and control?” Officer Ehler
replied, “He was not physically in custody.” On redirect examination, Officer Ehler testified
that the defendant was “never physically put into custody” and was “never transported to the
jail.”
¶ 11 Officer Leek testified that he drove past the Blue Fish Liquor Store while on patrol that
night and noticed Officer Ehler’s patrol car in the parking lot. He did not see anyone else in
the parking lot. However, as he drove past, he heard over his radio that Officer Ehler had
requested back-up to assist him with a “combative male subject.” Officer Leek turned his
vehicle around and pulled into the parking lot. As he did, he saw Officer Ehler exiting his
squad car and approaching an individual, whom he recognized as the defendant.
¶ 12 According to Officer Leek, he told the defendant to cooperate with Officer Ehler because
it would “make this much easier and smoother.” However, the defendant did not acknowledge
Leek or look at him. Instead, he continued to be “uncooperative” and “argumentative” towards
Officer Ehler. Officer Leek testified that the defendant said to Officer Ehler, “Take that badge
off and I’ll beat your ass.”
¶ 13 Officer Leek’s account of the events that followed was consistent with Officer Ehler’s
account. He gave a somewhat more detailed description of the “aggressive stance” taken by
the defendant. He explained that the defendant “bladed his body” towards Officer Ehler. Asked
to explain what he meant by “bladed,” Officer Leek responded, “It’s more of a defensive stance
more or less, *** kind of sideways as if maybe you might want to throw a punch or possibly
reach for a weapon or something.”
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¶ 14 On cross-examination, defense counsel questioned Officer Leek about the similarity in the
wording in portions of the two officers’ police reports. The following exchange took place:
“Q. So the fact that some of this wording is identical is just a coincidence?
A. Is that a question?
Q. Yeah.
A. I guess.”
We note that the police reports were not admitted into evidence. Counsel next showed Officer
Leek photographs of the injuries to the defendant’s face, which, as we noted earlier, showed
that he received injuries to both sides of his face. Counsel asked if the defendant received these
injuries from landing on the sidewalk on one side of his face. Officer Leek replied, “Yes, he
was running at a full speed.”
¶ 15 Officer Leek’s testimony concerning what transpired after Officer Ehler used his TASER
differed somewhat from that of Officer Ehler. He testified that the barbs from the TASER must
have made contact with the defendant’s body, explaining that, otherwise, he would not have
tensed up and fallen forward as he did. Officer Ehler, by contrast, testified that, because the
barbs fired from a TASER exude an electrical charge, the defendant could have been affected
even if they did not make physical contact.
¶ 16 Dr. Madlene Buggs was the defendant’s treating physician in the emergency room. She
testified that the defendant sustained multiple injuries to his head and face. He sustained
multiple fractures to facial bones as well as abrasions on both sides of his face. In addition, the
defendant experienced a decrease in his ability to communicate. Dr. Buggs testified that he had
to be transported to a trauma center for further treatment of his injuries. She testified that she
did not observe any indication that the defendant’s body was pierced by the barb from a
TASER; however, she also testified that she did not frequently see patients after a TASER was
used on them.
¶ 17 When asked if the defendant’s injuries were likely caused by something other than a fall to
the pavement, Dr. Buggs opined that, while it was not impossible for him to receive such
injuries from a single fall to the pavement, they were more likely to have resulted from either
multiple falls or from being struck multiple times with an object. This was so, she explained,
because he sustained significant injuries, including fractures on both sides of his face.
¶ 18 Dr. Buggs further testified that she did not tell the investigating officer that the defendant’s
wounds would heal on their own. She acknowledged that she did not remember her
conversation with the officer. She stated, however, that she would not have told him that the
injuries would heal on their own, noting, “obviously, we had to transfer him to a trauma center,
and that would mean that it wouldn’t heal on its own.”
¶ 19 On cross-examination, Dr. Buggs acknowledged that a nurse who examined the defendant
made a notation in his medical record indicating that his facial injuries looked like “road rash.”
She also acknowledged that it was not impossible for the defendant to have sustained the
injuries he did from a single fall. She testified that the defendant reported being intoxicated
and that he had a blood alcohol content of 0.129.
¶ 20 During closing argument, the defendant argued that the only credible witness was Dr.
Buggs. He argued that the defendant’s injuries were caused by being beaten with a blunt object
by Officer Ehler, and that Officer Leek arrived on the scene after the beating was over. The
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jury returned verdicts of guilty on all five charges; however, the court noted that one of the
obstruction of a peace officer charges merged with the escape charge.
¶ 21 Subsequently, the State filed a sentencing memorandum with the court. The State argued
that three factors in aggravation were applicable—the defendant’s conduct threatened serious
harm (see 730 ILCS 5/5-5-3.2(a)(1) (West 2014)), he had a lengthy history of prior crimes (see
id. § 5-5-3.2(a)(3)), and a jail sentence was necessary to deter others (see id. § 5-5-3.2(a)(7)).
In support of its contention that the defendant’s conduct threatened serious harm, the State
asserted that his “direct actions were to threaten Officer Josh Ehler with bodily harm.” The
State further asserted that “[t]he defendant then blindly ran down East Vienna Street, causing
two officers to have to pursue him into the street.” In support of its argument that the defendant
had a lengthy criminal history, the State attached copies of dispositions for 31 previous
charges. The State requested that the defendant be sentenced to 364 days in jail and 24 months
of conditional discharge.
¶ 22 At the sentencing hearing, the State repeated the arguments it made in its memorandum.
The defendant presented the testimony of his mother concerning the severity of his injuries.
She also testified that she relied on the defendant for financial assistance and for help
maintaining her home and running her farm. He argued that there were three applicable factors
in mitigation—there were “substantial grounds tending to excuse or justify the defendant’s
criminal conduct, though failing to establish a defense” (see id. § 5-5-3.1(a)(4)), a jail sentence
would cause hardship to his mother (see id. § 5-5-3.1(a)(11)), and a jail sentence would
endanger his medical condition (see id. § 5-5-3.1(a)(12)).
¶ 23 In ruling from the bench, the court found that no factors in mitigation were applicable and
that all three factors in aggravation relied upon by the State were present. Although the court
found that the defendant’s conduct threatened serious harm, the court noted that there was no
evidence that the defendant attempted to injure either of the officers. The court sentenced the
defendant to 18 months of probation. As a condition of his probation, the court ordered the
defendant to submit to an alcohol evaluation and an anger management evaluation, to complete
any treatment recommended in these evaluations, and to submit to random drug and alcohol
screenings. The court further ordered that, for the first 12 months of his probation, the
defendant would be subject to home confinement from 9 p.m. to 6 a.m. each night. However,
the court noted that, if the defendant was successful in his treatment programs, he could petition
the court to lift this condition. The court also imposed fines, which are not at issue in this
appeal. This appeal followed.
¶ 24 II. ANALYSIS
¶ 25 A. Sufficiency of the Evidence on the Escape Charge
¶ 26 The defendant first argues that there was insufficient evidence to prove him guilty of escape
beyond a reasonable doubt because there was no evidence that he was ever in “lawful custody”
within the meaning of the statute defining the offense. That statute provides, in relevant part,
that a “person in the lawful custody of a peace officer for the alleged commission of a
misdemeanor offense *** who intentionally escapes from custody commits a Class A
misdemeanor.” 720 ILCS 5/31-6(c) (West 2014). The defendant contends that there was no
evidence that the officers exercised sufficient control over him to constitute custody. We
disagree.
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¶ 27 Ordinarily, we review challenges to the sufficiency of the evidence to determine whether,
viewing all the evidence in the light most favorable to the State, any reasonable trier of fact
could have found all the essential elements of the offense beyond a reasonable doubt. People
v. Collins, 106 Ill. 2d 237, 261 (1985). The defendant argues, however, that our review should
be de novo because his argument focuses on the meaning of the statutory term “lawful
custody.” He points out that statutory construction is an issue of law subject to de novo review.
See People v. Alcozer, 241 Ill. 2d 248, 254 (2011). Two districts of the Illinois Appellate Court
have already rejected this argument. Both the Third District and the Fourth District found that
whether a defendant was “in ‘lawful custody’ ” depends on the factual question of whether the
officers involved exercise a sufficient degree of control over the defendant. People v. Garza,
2019 IL App (4th) 170165, ¶ 17; People v. McClanahan, 2011 IL App (3d) 090824, ¶ 11. In
this case, however, we believe the defendant’s claim fails under either standard of review.
¶ 28 The defendant calls our attention to the case of People v. Kosyla, 143 Ill. App. 3d 937(1986). There, police officers went to the home of the defendant and his wife in response to a
complaint about loud music from a stereo in their garage. Id. at 939. When one of the officers
told the defendant to turn down the volume because it was disturbing the neighbors, he instead
turned the volume louder and asked the officer, “ ‘What are you going to do, arrest me?’ ” Id.
at 940. The officer informed the defendant that he was under arrest. The defendant stated that
he was going to call his attorney, and he went into his house. Id. After the defendant’s wife
and son—who were also arrested in the incident—were secured in a squad car, the defendant
came back out of his house and told the officers that, if they wanted him, they should “ ‘come
and get’ ” him. Id. at 952. He then ran back inside the house and slammed the door. Shortly
thereafter, the defendant ran out the back door of his house and into a nearby cornfield. He was
not apprehended that day. Id.¶ 29 The defendant was subsequently arrested on a warrant, charged with escape and resisting
a peace officer, and convicted on both charges. Id. at 939. On appeal, he argued that the escape
conviction should be reversed because the State did not prove that he was “ ‘in custody.’ ” Id.
at 950-51. The defendant emphasized that, although the officer told him that he was under
arrest, he “never completed the arrest and, thus, never attained custody over him.” Id. at 951.
The appellate court agreed, finding that the defendant was “not yet in [the] lawful custody of
a peace officer” and noting that, “at most, *** the defendant was guilty of resisting arrest.” Id.
at 952.
¶ 30 The defendant argues that this case is analogous to Kosyla in that the defendant was “not
yet in lawful custody” when he broke away from the officers. In support of this argument, he
emphasizes that both officers testified that, when Officer Ehler was walking the defendant
towards his squad car, he was “trying to gain control over him.” He further emphasizes that on
cross-examination Officer Ehler admitted that the defendant was never “in physical custody.”
¶ 31 We believe this argument places too much emphasis on the choice of words used by the
officers. Although both officers did testify that they had difficulty gaining control over the
defendant, they also testified that they had a hold of his arms and were walking him towards
the squad car before he broke free. This indicates that, although the officers did not have
complete control over the defendant, they had enough control to restrain his movement.
Similarly, after Officer Ehler admitted that he never considered the defendant to be “in physical
custody,” he testified that the defendant was never transported to jail. While it appears that
Officer Ehler may consider “custody” to arise only after a defendant is taken to jail, that is not
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true for purposes of the escape statute. As stated previously, a defendant is in “ ‘lawful
custody’ ” for purposes of the escape statute when an officer exercises a sufficient degree of
control over the defendant. Garza, 2019 IL App (4th) 170165, ¶ 17; McClanahan, 2011 IL
App (3d) 090824, ¶ 11. In Kosyla, the officers never exercised any control over the defendant.
That clearly is not true in this case.
¶ 32 The State argues that the instant case is more like Garza, McClanahan, and People v.
Lauer, 273 Ill. App. 3d 469 (1995), than Kosyla. In each of those cases, the appellate court
found that the defendant was “in lawful custody” for purposes of the escape statute when
officers “did more than inform [the] defendant that he was under arrest.” McClanahan, 2011
IL App (3d) 090824, ¶ 16; see also Garza, 2019 IL App (4th) 170165, ¶¶ 22-23; Lauer, 273
Ill. App. 3d at 474.
¶ 33 In Garza, two police officers went to the defendant’s home in response to a complaint
about barking dogs. On the way to the house, they discovered that there was an outstanding
warrant for the defendant’s arrest in an unrelated case. Garza, 2019 IL App (4th) 170165, ¶ 4.
When they arrived at the house, the defendant’s girlfriend let them in, and they informed the
defendant that he was under arrest. Id. ¶ 5. The officers allowed the defendant to put a shirt on
and say goodbye to his family. One of the officers testified that he “escorted” the defendant as
he moved through the house to get a shirt and say goodbye to various family members, always
staying within two feet of the defendant. Id. The two officers then “escorted” the defendant
towards the door, each holding one of his arms. Id. ¶ 6. Once outside, the defendant asked if
he could smoke a cigarette. The officers allowed him to do so; however, he was told that after
he lit the cigarette, he was going to be handcuffed. Id. It is unclear whether either officer was
holding onto the defendant as he lit his cigarette. However, when he finished, he was asked to
turn around and put his hands behind his back. Instead of complying, the defendant took off
running. Id. On appeal from a conviction for escape, the Fourth District found that the officers
exercised sufficient control over the defendant to constitute “lawful custody” for purposes of
the escape statute. Id. ¶¶ 22-23.
¶ 34 In McClanahan, an officer told the defendant he was under arrest. He grabbed onto the
defendant, but the defendant struggled. McClanahan, 2011 IL App (3d) 090824, ¶ 5. The
officer was able to pin the defendant onto the hood of a car; however, when he reached for his
handcuffs, the defendant was able to break away. Id. On appeal from a conviction for escape,
the Third District found that the “defendant was lawfully restrained notwithstanding his
resistance.” Id. ¶ 16. This was so, the court explained, because the officer “physically
restrained him and forcefully moved [the] defendant to the hood of the squad car.” Id.
¶ 35 In Lauer, two officers responded to a report of a loud party. Lauer, 273 Ill. App. 3d at 470.
After they ordered the guests to leave, an argument began between the officers and the
defendant. The argument soon turned into a scuffle. Id. at 471. One of the officers attempted
to handcuff the defendant, but he broke away and ran into the house. Id. The officers pursued
the defendant. Eventually, they caught him in a back bedroom, and one of the officers put his
arm around the defendant’s neck in a “retention hold.” Id. As the officer walked the defendant
towards the front door, he managed to break free of the retention hold and run out of the house.
Id.¶ 36 On appeal from a conviction for escape, the First District rejected the defendant’s argument
that he was never in lawful custody. Id. at 474. The court explained that an officer “actually
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restrained” the defendant and “physically moved [him] *** to the front part of the house”
before he broke free and ran away. Id.¶ 37 Here, as in Garza, McClanahan, and Lauer, the officers did more than tell the defendant
he was under arrest. They held him by the arms and walked him towards Officer Ehler’s squad
car before he broke free of their grip. We therefore find that there was sufficient evidence to
prove that he was in lawful custody before breaking away.
¶ 38 B. Rule 431(b) and Plain Error
¶ 39 The defendant next argues that the court failed to fully comply with Rule 431(b). That rule
requires courts to ask jurors whether they both understand and accept four principles known as
the Zehr principles. See People v. Thompson, 238 Ill. 2d 598, 606 (2010); see also People v.
Zehr, 103 Ill. 2d 472, 477 (1984). Here, the court explained all four principles to the jurors and
asked if the jurors accepted the four principles, but the court did not ask whether the jurors
understood the principles. As such, the court did not fully comply with the rule. See People v.
Wilmington, 2013 IL 112938, ¶ 32. The defendant acknowledges that he did not object during
voir dire, thereby forfeiting appellate review of this issue. See People v. Belknap, 2014 IL
117094, ¶ 47. He asks us to consider it under the plain error doctrine. We find that it is
inappropriate to do so.
¶ 40 Under the plain error doctrine, this court may overlook the defendant’s forfeiture and
consider his claim under two circumstances. Under the first part of the plain error test, we may
review his claim if the evidence was so closely balanced that the error alone threatened to tip
the scales of justice against the defendant, regardless of the seriousness of the error. Under the
second part of the test, we may consider his claim if the asserted error was so fundamental that
it undermined the fairness of the trial and threatened the integrity of the judicial process,
regardless of the strength of the evidence. People v. Piatkowski, 225 Ill. 2d 551, 565 (2007).
The Illinois Supreme Court has held that a claim of failure to comply with Rule 431(b) is
cognizable only under the first part of the test—that is, we may consider the claim only if the
evidence is closely balanced. People v. Sebby, 2017 IL 119445, ¶ 52. This is because, although
Rule 431(b) is designed to help ensure that criminal defendants are tried by jurors who are fair
and impartial, the absence of full compliance does not necessarily lead to a jury is not fair and
impartial. Thompson, 238 Ill. 2d at 609-10.
¶ 41 Review under the first prong of the plain error test is appropriate when the evidence was
so closely balanced that “the error alone severely threatened to tip the scales of justice.” Sebby,
2017 IL 119445, ¶ 51. The defendant bears the burden of persuasion on the question of whether
the evidence was close enough to meet this standard. People v. Choate, 2018 IL App (5th)
150087, ¶ 52. Here, we do not believe the defendant can meet that burden.
¶ 42 In arguing that the evidence was closely balanced, the defendant points out that there was
no extrinsic evidence—such as body camera video or store security footage—to support the
testimony of the two officers. He also points out that the officers’ testimony concerning how
the defendant was injured conflicts with that of Dr. Buggs, who was a disinterested witness
with no motive to lie. The defendant argues that, absent extrinsic evidence, the matter became
a contest of credibility between the two officers and Dr. Buggs. We are not persuaded.
¶ 43 As the State correctly points out, none of Dr. Buggs’s testimony related to the crucial
question of whether the defendant was in lawful custody before breaking away from the
officers and running. As we discussed earlier, the defendant’s theory at trial was that the two
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officers made up the story of the defendant’s arrest to cover up the use of excessive force by
Officer Ehler. However, virtually no evidence supported this claim. Although defense counsel
questioned both officers on the similarities in their police reports, both officers denied that they
decided together what they would put in the reports, and the reports themselves were not
entered into evidence.
¶ 44 Moreover, there was evidence that supported the officers’ testimony. A photograph of the
beer can was admitted into evidence, and as noted, the medical evidence showed that the
defendant was intoxicated, which tends to support the officers’ testimony. The fact that the
officers gave accounts of events that were highly consistent also enhances the credibility of
their testimony.
¶ 45 We acknowledge that Officer Ehler’s claim that Dr. Buggs told him the defendant’s injuries
were minor and would heal on their own was at odds with the medical evidence. However,
while this was something for jurors to consider in assessing his overall credibility as a witness,
we do not believe the credibility of the officers’ uncontroverted testimony was so suspect that
it rendered the evidence to be closely balanced. Because we do not find the evidence to be so
closely balanced that the Rule 431(b) error alone severely threatened to tip the scales of justice
against the defendant, we decline to consider the defendant’s claim under the plain error
doctrine.
¶ 46 C. Sentencing
¶ 47 The defendant’s final contention is that the court erroneously considered a factor inherent
in the offense of aggravated assault as an aggravating factor in sentencing him on that charge.
Specifically, he argues that the threat of harm is inherent in the offense of aggravated assault.
The defendant acknowledges that he did not raise this issue at the sentencing hearing, but he
asks us to consider his claim under the plain error rule. The first step in plain error analysis is
to determine whether an error occurred at all. Piatkowski, 225 Ill. 2d at 565. For the following
reasons, we conclude that the court did not err in sentencing the defendant.
¶ 48 It is never proper for a sentencing court to consider a factor that is inherent in the offense
as an aggravating factor. People v. Dowding, 388 Ill. App. 3d 936, 942 (2009). “The burden is
on the defendant to affirmatively establish that the sentence was based on improper
considerations.” Id. at 943. Here, we do not believe the defendant can carry this burden for
three reasons.
¶ 49 First, we do not agree with the defendant that a threat of serious harm is inherent in the
offense of aggravated assault as charged. In support of his argument, the defendant correctly
notes that assault is defined as “conduct which places another in reasonable apprehension of
receiving a battery.” 720 ILCS 5/12-1(a) (West 2014). Battery usually, though not always,
involves bodily harm. See id. § 12-3(a). The defendant argues that, as such, “a threat of harm
is inherent in the offense of aggravated assault.” The problem with this argument is that the
aggravating sentencing factor at issue applies when the defendant’s conduct causes or threatens
to cause “serious harm.” (Emphasis added.) 730 ILCS 5/5-5-3.2(a)(1) (West 2014). In this
case, the defendant was charged with aggravated assault, rather than simple assault, because
the victim was a police officer, not because he threatened serious bodily harm. See 720 ILCS
5/12-2(b)(4)(i) (West 2014). As such, a threat of serious harm is not inherent in that charge.
¶ 50 Second, although it is not entirely clear from the record, it appears that the court most likely
found that the defendant’s conduct threatened serious harm because he ran across Vienna
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Street, putting the officers in danger from vehicles as they pursued him. Although the State
argued that the defendant’s conduct threatened harm both because he threatened Officer Ehler
with a battery and because he ran across the street with the officers in pursuit, the trial court
specifically found that the defendant did not try to injure either officer. Obviously, a threat of
serious harm is not inherent in the offenses of escape and obstructing a peace officer.
¶ 51 Third, even assuming the court considered an improper factor in sentencing, we need not
remand for a new sentencing hearing if “it appears from the record that the weight placed upon
the improper factor was so insignificant that it did not lead to a greater sentence.” Dowding,
388 Ill. App. 3d at 945. In this case, all the charges against the defendant were Class A
misdemeanors. See 720 ILCS 5/12-2(d), 31-1(a), 31-6(c) (West 2014). The defendant could
have been sentenced to up to 364 days in jail (730 ILCS 5/5-4.5-55(a) (West 2014)) and 24
months of conditional release (id. § 5-4.5-55(d)). Instead, the defendant received no jail time,
and he was sentenced to concurrent sentences of 18 months of probation, which was 75% of
the maximum period of probation permissible for a Class A misdemeanor (see id.). The fact
that the defendant’s sentence was substantially lower than the maximum authorized sentence
is an important consideration in determining whether the improper aggravating factor was
given significant weight. See Dowding, 388 Ill. App. 3d at 945.
¶ 52 Considering the defendant’s lengthy criminal history and the fact that the court found no
mitigating factors, we think it is clear that the court gave little weight to the aggravating factor
of the threat of harm when it imposed a sentence that was substantially lower than the
maximum. We therefore find that no error occurred during sentencing, and we need not
consider whether application of the plain error rule is appropriate.
¶ 53 III. CONCLUSION
¶ 54 For the foregoing reasons, we affirm the defendant’s convictions and sentences.
¶ 55 Affirmed.
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