People v. Bauer

NOTICE
2020 IL App (4th) 170902-U FILED
This order was filed under Supreme
Court Rule 23 and may not be cited
January 23, 2020
as precedent by any party except in NO. 4-17-0902 Carla Bender
the limited circumstances allowed 4th District Appellate
under Rule 23(e)(1). Court, IL
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Livingston County
ANTHONY F. BAUER, JR., ) No. 17CF65
Defendant-Appellant. )
) Honorable
) Jennifer H. Bauknecht,
) Judge Presiding.
)
JUSTICE DeARMOND delivered the judgment of the court.
Justices Harris and Holder White concurred in the judgment.
ORDER
¶1 Held: The appellate court affirmed, finding (1) the trial court did not abuse its discretion
in sentencing defendant to 20 years’ imprisonment, (2) defendant forfeited his
argument that the trial court improperly considered an aggravating factor at
sentencing, and (3) any error did not rise to the level of plain error.
¶2 In August 2017, defendant, Anthony F. Bauer, Jr., pleaded guilty to two counts of
unlawful delivery of a controlled substance (720 ILCS 570/401(c)(2) (West 2016)) (counts I and
II), unlawful possession of a controlled substance with the intent to deliver (720 ILCS
570/401(a)(2)(A) (West 2016)) (count III) for the possession of more than 15 grams but less than
100 grams of cocaine, and unlawful possession of a weapon by a felon (720 ILCS 5/24-1.1(a)
(West 2016)) (count IV). The trial court sentenced defendant to concurrent prison terms of 12
years each for counts I and II, 20 years for count III, and 8 years for count IV. Defendant filed a
motion to reconsider sentence, which the court denied.
¶3 On appeal, defendant argues the trial court erred by (1) failing to consider his
rehabilitative potential, (2) improperly using a factor inherent in the offense to increase his
sentence, and (3) improperly using facts outside the evidence to increase his sentence. We
affirm.
¶4 I. BACKGROUND
¶5 In February and March 2017, the Livingston County Protective Unit conducted
three controlled buys of cocaine with a confidential informant. Two of the buys were conducted
with defendant, while the third was conducted with an associate of defendant, Jenna DeMoss. As
a result of the controlled buys, a search warrant was executed on defendant’s residence.
Defendant was arrested and charged by information with two counts of unlawful delivery of a
controlled substance (720 ILCS 570/401(c)(2) (West 2016)) (counts I and II), unlawful
possession of a controlled substance with the intent to deliver (720 ILCS 570/401(a)(2)(A) (West
2016)) (count III) for the possession of more than 15 grams but less than 100 grams of cocaine,
and unlawful possession of a weapon by a felon (720 ILCS 5/24-1.1(a) (West 2016)) (count IV).
¶6 In May 2017, defendant filed a motion to quash search warrant and to suppress
evidence seized, which described the seized items as follows:
“On March 1, 2017, a search pursuant to said warrant was executed at
407.W.Mazon, Avenue, Dwight, Livingston County, Illinois, and the following
items were seize [sic]: cocaine, $100.00 in cash, $6,522.00 in cash, $79.72 in
coins, Defendant’s driver’s license, mail, electronic scales, electronic money
counter, drug paraphernalia, a bag with a white powder substance, 5 white chunks
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of a white substance,, a Jennings, Bryce 380 caliber handgun, empty bottles of
codeine and ‘numerous items from the residence suspected to have been bought
with drug money.’ ”
On June 1, 2017, the trial court conducted a hearing on defendant’s motion to quash, and the
motion was denied.
¶7 On August 31, 2017, defendant entered an open guilty plea on all counts. The trial
court properly admonished defendant, and the State set forth the factual basis as follows:
“MR. REGNIER [(PROSECUTOR)]: Thank you, Judge. As part of an
ongoing drug investigation by Officer Maier with the Dwight Police Department
and Proactive Unit, drugs were purchased, specifically three grams of cocaine, on
February 23rd and three grams of cocaine on March 2nd as tested by the Illinois
State Police crime laboratory. This was purchased in Dwight at a gas station,
observed by officers and sold to a confidential source. The amount that was being
sold was in excess of one gram, being three on each of those occurrences.
Based off those occurrences, a buy-bust was initiated where this
Defendant was immediately arrested. The police sat on his house. A search
warrant was obtained and the house was searched. Within the house was found as
confirmed by the laboratory 33 grams of a substance containing cocaine as well as
a .380 Caliber handgun, [defendant] admitting possession of both of those items.
Additionally found within his house as relevant toward delivery was over
$6,000 in Untied States currency containing the reported money from the
controlled buy on March 2nd as well as money from a controlled buy that was
conducted on [defendant] on February 28th where a Jenna DeMoss had ended up
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selling that money, or selling that cocaine. $80 of the currency had gone towards
[defendant] and was with him at the time of the search warrant.”
Defendant did not object to the factual basis and the trial court accepted defendant’s guilty pleas
on all four counts.
¶8 On October 6, 2017, a presentence investigation report (PSI) was filed. The PSI
indicated defendant was born on July 15, 1996. The report listed defendant’s criminal history: a
2014 conviction for criminal sexual assault, a Class A misdemeanor, for which he received 30
months’ probation, and a 2015 conviction for unlawful possession of a controlled substance, a
Class 4 felony, for which he also received 30 months’ probation. Defendant was still on
probation for these convictions when the instant offenses were committed. The State had filed
petitions to revoke defendant’s probation in both cases.
¶9 Under the “Family History” section, the PSI indicated defendant had a “great
relationship” with his mother, stepfather, and older sister. Further, the PSI stated “defendant has
never been married but has been in a relationship with Lauren Hunt for the past 2 ½ years. ***
The couple were [sic] expecting a child last year, but the baby passed away prior to birth due to
Turners Syndrome, a condition with fluid in the amniotic sac.”
¶ 10 The PSI indicated defendant graduated from high school in 2014, and at the time
of his arrest was employed full-time. The PSI also stated defendant described his financial
situation as “not good at this time.” Defendant stated his financial difficulties began when he
started using cocaine and that he was not working full-time hours prior to his arrest due to his
cocaine use.
¶ 11 The “Substance Use and Treatment History” section stated as follows:
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“[Defendant] informed that he began to use Xanax in 2014 after the death
of his uncle. The defendant informed that prior to this time he was doing well at
school, was in athletics and was not a ‘partier’. After the passing of his uncle, the
defendant lost interest in his athletics and schooling at that time.
The defendant stated too that after the passing of his child, he turned to
drugs as well. [Defendant] admitted that based on the fact he was submitting to
drugs screens to Probation, he could not use cannabis (which he was an
occasional user) or pills, as he did not want to turn up with a dirty drug screen.
[Defendant] also informed he turned to cocaine at this time, knowing that this
substance escapes from your body quickly and he was able to pass drug screens.
[Defendant] stated that he then began to use more often and the cost was
too much for him. He was missing work due to use, and also using while on the
job. That is when he admitted to begin selling drugs to pay for his use of cocaine.
As part of his Probation in 15CF41, the defendant was attending alcohol
and drug treatment at IHR in Pontiac. The defendant was in compliance with his
treatment (successfully completed) and was passing all of his drug screens prior to
his arrest in [the instant case].”
¶ 12 On October 12, 2017, the trial court held defendant’s sentencing hearing. At the
sentencing hearing, Brian Maier, a police investigator, was called as a witness in aggravation.
Maier testified he had viewed a recording of a video phone call at the jail between defendant and
DeMoss. Maier testified that the video captured DeMoss showing defendant a small Baggie of a
controlled substance appearing to be cocaine.
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¶ 13 Defendant’s mother, Manuella Scoles, testified as a witness in mitigation. Scoles
testified that prior to becoming involved in drugs shortly before he turned 18, defendant had
done well in school and been involved in athletics. Scoles said defendant was doing better and
was working until his child died. At that point defendant became more difficult to reach. Scoles
also testified she had seen a difference in defendant’s attitude and demeanor since his arrest. She
described defendant when he first went to jail as having “a huge chip on his shoulder.” Now, “he
knows what he wants in life; and he knows that this isn’t what he wants[.]”
¶ 14 The State recommended concurrent prison sentences of 26 years on count III, 15
years each on counts I and II, and 10 years on count IV. Defense counsel recommended
concurrent prison sentences of 12 years on count III and 6 years each on counts I, II, and IV.
¶ 15 Defendant made a statement in allocution:
“THE DEFENDANT: Your Honor, just under a year ago I made a bad
decision on both practical and moral levels. I had a selfish disregard for others. I
knowingly broke the law. I left my family and distanced myself from my true
friends.
I am prepared to accept the punishment the Court decides upon me. I am
truly sorry for the actions I chose to make. And I would like to thank my parents
who are here today who have loved and supported me and to apologize for the
pain and embarrassment I’ve caused on them.
Your Honor, thank you for hearing my statement and considering me.”
¶ 16 In sentencing defendant, the trial court found “a number of aggravating factors
present in this case.” The court stated the following:
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“First of all, I do believe that your conduct caused or threatened serious
harm to others. Even though I’m prepared to accept [defense counsel’s] proffer
that there were no bullets for the gun, I’m prepared to accept that, but regardless,
that doesn’t mean that whoever you are dealing with doesn’t have a gun and sees
your gun and pulls his or her gun out. I mean, it’s never good when you are
dealing drugs with a gun bullets or no bullets. There is a potential for the deal to
go awry and people to get hurt. Bystanders could be hurt.
I also believe that when you’re, you’re using drugs and bringing drugs into
the community, that enhances the problem which is already out of control. And
there’s a distinction between being the person who’s addicted to the drugs and
being the person who’s selling the drugs. Being addicted is part of the problem.
Selling is contributing to the problem, making the problem worse. And so I do
think that that is a very strong factor in aggravation. The potential for harm to the
community, not just the people that may be using the drugs but first responders
putting themselves in dangerous situations getting to these drug overdoses and/or
searches; and just it’s not a good situation. So it is, it does have a very real
potential for serious harm.
I do also believe that your prior record of criminal activity is a factor in
aggravation I guess not so much for those crimes themselves, and really I think
the factor is more likely number 12 that you were on probation at the time. So
when all this happened, you were already on felony probation, already had the
resources.
***
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Your prior record I would say is also a factor in aggravation because you
had engaged in prior felony misconduct, but it’s not as strong as the fact that you
were on probation at the time.
Deterrence is a very strong factor. It’s not okay. It just is not okay to deal
drugs in the community. I’ve talked already about the impact it has on the
community. And again, it’s hard to say, and I recognize that you believe and I
don’t doubt I guess that you had an addiction at the time. There’s ways to handle
that. Not everybody gets addicted to drugs and then sells large quantities within
the community. That’s a conscious decision on your part.
And, you know, I guess everything is relative to where you’re at. This is a
pretty big sale, a pretty big amount of drugs. Probably happens all the time in
other communities. Not in this one. I mean, I don’t very often see 33 grams of
cocaine. I don’t often see deliveries that are in excess of three grams. So it’s a,
relatively speaking this is a very, you know, you went from using drugs to off the
charts in terms of what you are doing by selling.
***
[Defense counsel] has argued that he believes that this was the result of
circumstances unlikely to reoccur. I don’t know. I can’t say that that is a
mitigating factor in this case. I’m not convinced of that. I do believe that you had
a drug addiction. But again, drug addiction doesn’t automatically equate to Class
X possession of 33 grams of cocaine with intent to deliver with a weapon. They
are two different things.
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And maybe you got into the drugs because of the death of your unborn
child, and I’m sure that was a very horrible time. I’m not taking away from that.
But I don’t see the correlation between that and the instant crime. I see the
correlation between that and using drugs. So there really are not very many
mitigating factors present in this case.
The other thing I would just like to mention is we’ve got a pattern of
conduct here. I mean, it’s pretty evident this is not a one time deal where you got
caught giving a friend, you know, a little bit of cocaine. This is a pattern of
conduct of dealing large amounts of cocaine within the community. And I think
that’s significant also because I don’t know, you know, 33 grams, we don’t want
that in the community. That’s just way too much.
So having considered all of the factors and there are other things that the
Court is mindful of, the cost of incarceration, other things that I can’t possibly
mention everything, but I do in this case believe that the aggravating factors
strongly outweigh the mitigating factors.”
The court concluded by sentencing defendant to concurrent prison terms of 12 years each for
counts I and II, 20 years for count III, and 8 years for count IV.
¶ 17 On November 13, 2017, defendant filed a motion to reconsider his sentence,
arguing the sentence was excessive and disproportionate to other sentences for similar offenses.
On December 7, 2017, the trial court denied defendant’s motion.
¶ 18 This appeal followed.
¶ 19 II. ANALYSIS
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¶ 20 On appeal, defendant argues the trial court erred by (1) failing to consider his
rehabilitative potential, (2) improperly using a factor inherent in the offense to increase his
sentence, and (3) improperly using facts outside the evidence to increase his sentence.
¶ 21 A. Rehabilitative Potential
¶ 22 Defendant argues the trial court’s sentence was excessive, contending various
mitigating factors were not considered by the court, namely, his age, his positive work history,
and his lack of past incarceration, which showed his rehabilitative potential. We disagree.
¶ 23 “A trial court’s determination regarding the length of a defendant’s sentence will
not be disturbed unless the trial court abused its discretion or relied on improper factors when
imposing a sentence.” People v. Smith, 318 Ill. App. 3d 64, 74, 740 N.E.2d 1210, 1218 (2000).
“There is a strong presumption that the trial court based its sentencing determination on proper
legal reasoning, and the court is presumed to have considered any evidence in mitigation which
is before it.” People v. Donath, 357 Ill. App. 3d 57, 72, 827 N.E.2d 1001, 1014 (2005). “[A]
sentence within statutory limits will be deemed excessive and the result of an abuse of discretion
by the trial court where the sentence is greatly at variance with the spirit and purpose of the law,
or manifestly disproportionate to the nature of the offense.” People v. Stacey, 193 Ill. 2d 203,
210, 737 N.E.2d 626, 629 (2000). “A reviewing court gives great deference to the trial court’s
judgment regarding sentencing because the trial judge, having observed the defendant and the
proceedings, has a far better opportunity to consider these factors than the reviewing court,
which must rely on the ‘cold’ record.” People v. Fern, 189 Ill. 2d 48, 53, 723 N.E.2d 207, 209
(1999). “Consequently, the reviewing court must not substitute its judgment for that of the trial
court merely because it would have weighed these factors differently.” (Internal quotation marks
omitted.) People v. Alexander, 239 Ill. 2d 205, 213, 940 N.E.2d 1062, 1066 (2010).
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¶ 24 In this case, defendant pleaded guilty to a Class X felony. The prison term for a
Class X felony ranges from 6 years to 30 years. 730 ILCS 5/5-4.5-25(a) (West 2016).
Defendant’s sentence of 20 years’ imprisonment fell within the statutory range of sentences. “A
sentence within the statutory guidelines is presumed proper.” People v. Wilson, 2016 IL App
(1st) 141063, ¶ 12, 65 N.E.3d 419. Nothing in the record defeats this presumption. The trial court
considered mitigating factors presented by defendant, including defendant’s claim that his
actions were the result of circumstances unlikely to reoccur. The trial court did not find
defendant’s claims persuasive. Similarly, defendant highlights his lack of past incarceration as a
mitigating factor. However, the trial court found defendant’s criminal history, including that he
was on felony probation at the time of the present offense, to be an aggravating factor rather than
a mitigating factor. Defendant contends the trial court did not consider his age; however, his age
was obvious to the court as he stood before it and is included on the first page of the PSI. “[A]
trial court setting forth the reasons for the sentence imposed need not recite and assign a value to
each fact presented at the sentencing hearing.” People v. White, 237 Ill. App. 3d 967, 970, 605
N.E.2d 720, 722 (1992). The trial court stated it had “considered all the factors and there are
other things that the Court is mindful of, *** other things that I can’t possibly mention
everything, but I do in this case believe that the aggravating factors strongly outweigh the
mitigating factors.” In this instance, the court imposed a sentence in the middle of the possible
sentencing range, well below the maximum. See 730 ILCS 5/5-4.5-25(a) (West 2016). “The
existence of mitigating factors does not require the trial court to reduce a sentence from the
maximum allowed.” People v. Pippen, 324 Ill. App. 3d 649, 652, 756 N.E.2d 474, 477 (2001).
We cannot say the sentence 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. Moreover,
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defendant contends in his brief a sentence “in the middle of the Class X range would be
appropriate.” Here, defendant was sentenced to 20 years from a possible sentencing range of 6
years to 30 years. Although defendant’s sentence was not precisely the mathematical median of
the sentencing range, we find defendant’s 20-year sentence remains “in the middle” of the
sentencing range. Thus, defendant’s sentence was not excessive, and the court did not abuse its
discretion.
¶ 25 B. Consideration of Improper Factors in Sentencing
¶ 26 Defendant further argues the trial court erred by improperly considering as factors
in aggravation (1) defendant’s intent to sell, a factor inherent in the offense, and (2) a fact outside
the evidence.
¶ 27 Initially, we note defendant failed to object at sentencing or raise this issue in his
motion to reconsider the sentence. Thus, the issue is forfeited on appeal. See People v. Hestand,
362 Ill. App. 3d 272, 279, 838 N.E.2d 318, 324 (2005) (holding that a defendant must object at
trial and raise the issue in his posttrial motion to preserve the issue for review). In his brief,
however, defendant argues the issue should be addressed as a matter of plain error.
¶ 28 “[S]entencing errors raised for the first time on appeal are reviewable as plain
error if (1) the evidence was closely balanced or (2) the error was sufficiently grave that it
deprived the defendant of a fair sentencing hearing.” People v. Ahlers, 402 Ill. App. 3d 726, 734,
931 N.E.2d 1249, 1256 (2010). Under both prongs of the plain-error analysis, the burden of
persuasion remains with the defendant. People v. Wilmington, 2013 IL 112938, ¶ 43, 983 N.E.2d
1015. As the first step in the analysis, we must determine “whether there was a clear or obvious
error at trial.” People v. Sebby, 2017 IL 119445, ¶ 49, 89 N.E.3d 675; see also People v.
Eppinger, 2013 IL 114121, ¶ 19, 984 N.E.2d 475. “If error did occur, we then consider whether
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either prong of the plain-error doctrine has been satisfied.” People v. Sykes, 2012 IL App (4th)
111110, ¶ 31, 972 N.E.2d 1272. “[T]he plain error rule is not a general savings clause for any
alleged error, but instead is designed to address serious injustices.” (Emphasis in original.)
People v. Williams, 299 Ill. App. 3d 791, 796, 701 N.E.2d 1186, 1189 (1998).
¶ 29 The question of whether the trial court relied on improper factors in imposing
defendant’s sentence presents a question of law, which we review de novo. People v. Abdelhadi,
2012 IL App (2d) 111053, ¶ 8, 973 N.E.2d 459. “There is a strong presumption that the trial
court based its sentencing determination on proper legal reasoning, and a court of review should
consider the record as a whole, rather than focusing on a few words or statements by the trial
court.” People v. Canizalez-Cardena, 2012 IL App (4th) 110720, ¶ 22, 979 N.E.2d 1014. The
defendant has the burden “to affirmatively establish that the sentence was based on improper
considerations.” People v. Dowding, 388 Ill. App. 3d 936, 943, 904 N.E.2d 1022, 1028 (2009).
¶ 30 Generally, where “a trial court considers an improper factor in aggravation, the
case must be remanded unless 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.” Abdelhadi, 2012
IL App (2d) 111053, ¶ 18. “However, where it can be determined 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, remandment is not required.” People v. Bourke, 96 Ill. 2d 327, 332, 449
N.E.2d 1338, 1340 (1983). When making this determination, courts have considered:
“(1) whether the trial court made any dismissive or emphatic comments in reciting its
consideration of the improper factor[ ] and (2) whether the sentence received was substantially
less than the maximum sentence permissible by statute.” Abdelhadi, 2012 IL App (2d) 111053,
¶ 18.
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¶ 31 In the case sub judice, defendant was convicted of unlawful possession of a
controlled substance with intent to deliver, a Class X felony. See 720 ILCS 570/401(a) (West
2016). As we previously noted, a defendant convicted of a Class X felony is subject to a sentence
of 6 to 30 years in prison. 730 ILCS 5/5-4.5-25(a) (West 2016).
¶ 32 Defendant first takes issue with the trial court’s statement as follows:
“I also believe that when you’re, you’re using drugs and bringing drugs
into the community, that enhances the problem which is already out of control.
And there’s a distinction between being the person who’s addicted to the drugs
and being the person who’s selling the drugs. Being addicted is part of the
problem. Selling is contributing to the problem, making the problem worse. And
so I do think that that is a very strong factor in aggravation. The potential for
harm to the community, not just the people that may be using the drugs but first
responders putting themselves in dangerous situations getting to these drug
overdoses and/or searches; and just it’s not a good situation. So it is, it does have
very real potential for serious harm.”
Defendant argues the trial court considered, as demonstrated by the above statement, defendant’s
intent to sell as a “very strong factor in aggravation.” An intent to sell is a factor inherent in the
offense of unlawful possession of a controlled substance with intent to deliver. See 720 ILCS
570/401(a)(2)(A) (West 2016). “It is well established that a factor inherent in the offense should
not be considered as a factor in aggravation at sentencing.” Canizalez-Cardena, 2012 IL App
(4th) 110720, ¶ 22. Thus, a single factor cannot be used both as an element of the offense and as
a basis for imposing a harsher sentence than would have been imposed without it. In this case,
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we find the trial court did not improperly consider defendant’s intent to sell as an aggravating
factor.
¶ 33 In People v. Rios, 2011 IL App (4th) 100461, 960 N.E.2d 70, the defendant
contended the trial court improperly considered the receipt of compensation as a factor inherent
in the offense when imposing the defendant’s sentence. In rejecting this contention, this court
stated:
“While the proceeds of the crime are not an aggravating factor under
section 5-5-3.2(a)(2), they can be proper considerations at sentencing when the
proceeds relate to such things as the extent and nature of a defendant’s
involvement in a particular criminal enterprise, a defendant’s underlying
motivation for committing the offense, the likelihood of the defendant’s
commission of similar offenses in the future and the need to deter others from
committing similar crimes. [Citation].” Rios, 2011 IL App (4th) 100461, ¶ 15.
This court then stated:
“[T]he trial court here listed the receipt of compensation when mentioning the
statutory aggravating factors but then went onto discuss how much money [the]
defendant was making a day, the number of people she was regularly supplying,
and the fact she had no financial incentive for selling drugs. At the hearing on
[the] defendant’s motion to reconsider her sentence, the court again emphasized
no financial pressure was involved in the commission of this offense, [the]
defendant was making $400 per day or more selling heroin, and she had five or
six people buying from her. The court also highlighted [the] defendant had been
involved in selling drugs for a long time and had fairly substantial sales.
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Thus, in this case, the court’s discussion indicates it was discussing the proceeds
of the crime in addressing both the extent and nature of defendant’s involvement
in selling drugs, her underlying motivation for committing the offense, and the
nature of the offenses.
Accordingly, while the trial court should not have listed the receipt of
compensation as a statutory aggravating factor, we find no error because the
record shows the trial court was actually considering defendant’s proceeds for her
crimes as it related to the nature of the offense and other proper sentencing
considerations.” Rios, 2011 IL App (4th) 100461, ¶¶ 17-18.
¶ 34 We find this case analogous to Rios. In this case, when the trial court’s statement
is read in context and in conjunction with its other statements, it is evident the court considered
as a factor in aggravation the extent and nature of defendant’s involvement in selling drugs in
Livingston County.
¶ 35 The trial court noted the “pattern of conduct” the evidence against defendant
presented. We agree it is a reasonable inference that the evidence presents a narrative of a pattern
of conduct. After two controlled buys, the search warrant issued for defendant yielded evidence
from which reasonable inferences could be made regarding defendant’s level of participation.
First, the funds from the controlled buy with DeMoss were in defendant’s possession. Second, 33
grams of cocaine were seized. Third, $6522 was seized despite defendant’s statement that he was
struggling financially prior to dealing cocaine. It is a reasonable inference the seized funds were
the proceeds of cocaine sales. Finally, an electronic money counter was seized, creating a
reasonable inference defendant was involved with a significant number of cash transactions. See
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People v. Ulloa, 2015 IL App (1st) 131632, ¶ 29, 36 N.E.3d 445 (the purchase of a money
counter is relevant to prove a defendant intends to participate in narcotic transactions).
¶ 36 In addition, the trial court made other comments during sentencing to demonstrate
its concern with defendant’s level of participation. The court expressed the need for deterrence,
referring to the conscious decision of defendant to “sell[ ] large quantities [of cocaine] within the
community.” See Rios, 2011 IL App (4th) 100461, ¶ 15 (holding that a nonaggravating factor
may be relevant to the need to deter others from committing similar crimes). The court also
expressed it was not convinced the circumstances were unlikely to reoccur. See Rios, 2011 IL
App (4th) 100461, ¶ 15 (holding that a nonaggravating factor may be relevant to the likelihood
of the defendant’s commission of similar offenses in the future).
¶ 37 Finally, we note the trial court’s statement, “I’m not double enhancing anything.
My point is simply that this is a serious matter.” We presume the trial court based its sentence on
proper legal reasoning. See Canizalez-Cardena, 2012 IL App (4th) 110720, ¶ 22. The defendant
has the burden “to affirmatively establish that the sentence was based on improper
considerations.” Dowding, 388 Ill. App. 3d at 943. Defendant has not met that burden here, and
we find no error.
¶ 38 Defendant also takes issue with the following statement made by the trial court at
the sentencing hearing:
“This is a pretty big sale, a pretty big amount of drugs. Probably happens all the
time in other communities. Not in this one. I mean, I don’t very often see 33
grams of cocaine. I don’t often see deliveries that are in excess of three grams. So
it’s a, relatively speaking this is a very, you know, you went from using drugs to
off the charts in terms of what you are doing by selling.”
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Defendant argues the court’s statement that Livingston County does not often see cases
involving 33 grams of cocaine demonstrates the court improperly based defendant’s sentence on
its own personal beliefs. A sentence based on the trial court’s personal beliefs is an abuse of
discretion that may warrant remand. See People v. Miller, 2014 IL App (2d) 120873, ¶ 36, 9
N.E.3d 1210. It is the burden of the defendant to overcome the presumption the trial court relied
on competent and reliable evidence. People v. Griffith, 158 Ill. 2d 476, 497, 634 N.E.2d 1069,
1079 (1994).
¶ 39 In this case, we find defendant has failed to overcome this presumption, and we
find no error. The trial court’s comment needs to be considered in conjunction with the
arguments of counsel. The State noted the “unusually large quantity” of cocaine defendant had in
his possession, clearly intended for sale, and defense counsel, at the very outset of his argument,
commented on how the State painted “a true picture of where [defendant] was at the time of his
arrest.” The trial court’s reference to the relative amount of cocaine in Livingston County, when
taken in context, was not error. Defendant does not present anything in the court’s statement that
indicates the court considered the relative amount of cocaine as an aggravating factor, as
opposed to merely commenting on the nature of the offense
¶ 40 Even if the trial court had improperly considered factors inherent in the offense or
personal beliefs, we find remand is not required. Here, the court discussed several aggravating
factors—defendant’s criminal history, the need to deter others, and defendant’s status on felony
probation at the time of the instant offenses. See People v. Scott, 2015 IL App (4th) 130222,
¶ 55, 25 N.E.3d 1257 (finding the trial court’s consideration of a number of aggravating factors
supported the conclusion that remand was unnecessary). Defendant argues the trial court’s
consideration was not “insignificant” where defendant was sentenced to 14 years above the
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minimum available sentence. This is somewhat at odds with defendant’s earlier argument that a
sentence “in the middle” of the sentencing range was appropriate. Defendant’s sentence was also
10 years below the maximum sentence. In light of defendant’s prior criminal history, coupled
with the fact he was on felony probation for one offense and misdemeanor probation for another
at the time of this offense, a middle-range sentence hardly leads us to infer a reasonable
probability exists that his sentence might have been less had the trial court refrained from
mentioning the alleged improper factors. The record does not indicate the court’s statements
resulted in a sentence greater than that which would have been imposed. Accordingly, we do not
find the trial court’s statements constituted plain error on the facts of this case.
¶ 41 III. CONCLUSION
¶ 42 For the reasons stated, we affirm the trial court’s judgment.
¶ 43 Affirmed.
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