2022 IL App (3d) 190015
Ill. App. Ct.2022Background
- Tommy Young was indicted on two counts of predatory criminal sexual assault of a child (one count alleging digital penetration, one alleging oral penetration); after a bench trial he was convicted of the oral-penetration count.
- Protective orders during investigation governed recordings and transcripts; physical trial exhibits were omitted from the initial appellate record.
- The missing exhibits were later located and supplemented to the record after motions and court orders; OSAD had argued the missing exhibits deprived Young of meaningful appellate review.
- At sentencing Young declined to give an allocution statement; the court expressly referenced his refusal as indicating lack of acceptance of responsibility and adopted the State’s 10-year recommendation.
- On appeal Young argued (1) the timing of filing the previously-missing exhibits warranted reversal and (2) the sentence must be vacated because the court considered his refusal to allocute in aggravation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether late filing of previously-missing trial exhibits requires reversal | Exhibits were located and supplemented; no reversible prejudice | Late filing deprived Young of a complete record and meaningful appellate review, warranting reversal/new trial | Rejected: exhibits were filed; Young presented no substantive appellate argument after supplementation — no reversal on this ground; conviction affirmed |
| Whether sentencing court improperly considered defendant’s refusal to allocute as aggravating factor | Sentencing court may consider lack of remorse and other aggravating facts | Court impermissibly drew negative inference from defendant’s exercise of right to remain silent/decline allocution | Held for defendant as plain error: considering refusal to allocute was error; weight unclear, so sentence vacated and case remanded for resentencing |
Key Cases Cited
- People v. Appelgren, 377 Ill. App. 3d 137 (2007) (reversal where missing exhibit deprived defendant of sufficient record for appellate review)
- People v. Chaney, 379 Ill. App. 3d 524 (2008) (discusses review standards for sentencing issues)
- People v. Perruquet, 68 Ill. 2d 149 (1977) (sentence will not be altered on review absent abuse of discretion)
- People v. Herron, 215 Ill. 2d 167 (2005) (plain-error doctrine framework for forfeited issues)
- People v. Piatkowski, 225 Ill. 2d 551 (2007) (first step in plain-error analysis is determining whether error occurred)
- People v. Ward, 113 Ill. 2d 516 (1986) (court may not penalize defendant for exercising constitutional and statutory procedural rights)
- People v. Kopczick, 312 Ill. App. 3d 843 (2000) (reliance on improper sentencing factor may implicate fundamental liberty and be subject to plain-error review)
- People v. Martin, 119 Ill. 2d 453 (1988) (when improper factor considered at sentencing, vacate and remand unless factor was insignificant)
- People v. Bourke, 96 Ill. 2d 327 (1983) (remand required if court cannot determine weight given to improperly considered factor)
- People v. Conover, 84 Ill. 2d 400 (1981) (same principle regarding improper sentencing factors)