THE PEOPLE OF THE STATE OF ILLINOIS, Aрpellee, v. BLAKE A. HEIDER, Appellant.
No. 103859
Supreme Court of Illinois
May 22, 2008
Rehearing denied September 22, 2008
Lisa Madigan, Attorney General, of Springfield, and Michael Stroh, State‘s Attorney, of Eureka (Michael A. Scodro, Solicitor General, and Michael M. Glick and Eric
JUSTICE FREEMAN delivered the judgment of the court, with opinion.
Justices Fitzgerald, Kilbride, and Burke concurred in the judgment and opinion.
Chief Justice Thomas dissented, with opinion, joined by Justices Garman and Karmeier.
Justice Karmeier also dissented, with opinion, joined by Chief Justice Thomas and Justice Garman.
OPINION
In May 2003 defendant Blake Heider pleaded guilty to one count of predatory criminal sexual assault (
BACKGROUND
The indictment alleged three violations of section 12-14.1(a)(1) of the Criminal Code of 1961 (Code) (
In a statement to police describing her relationship with defendant, D.R. stated that her friend “hooked [defendant and her] up” during the summer of 2002. Defendant was initially hesitant about dating D.R., but her friend “talked him into it.” At first defendant and D.R. would “hang out and talk,” but after a couple of weeks they began kissing and holding hands. On October 31, 2002, the date of the first incident alleged in the indictment, defendant and D.R. were at a park kissing and holding hands when D.R. fell to the ground. After she fell, they began kissing again and defendant put his hand in D.R.‘s pants. He inserted his finger in D.R.‘s vagina and “rubb[ed] his hands up and down” for a couple of minutes.
The next incident alleged in the indictment occurred in November or December of 2002. D.R. stated that she and defendant were parked in his father‘s car and were talking and kissing, and defendant asked D.R. if she wanted to perform oral sex on him. D.R. told the police that she “didn‘t know what to say” because she did not know if she was “ready for this or not.” Defendant told D.R. it was her decision—it was “up to [her] if [she]
The third incident alleged in the indictment took place on March 15, 2003, at a residence where D.R. was babysitting. D.R. told the police that two of her friends came to the house at about 7 p.m., followed by defendant. The four of them sat and talked for a while, and D.R. then went into the bedroom to put the baby in her crib. Defendant came into the bedroom with her and sat down on the bed next to the crib. After D.R. put the baby into the crib, defendant pulled D.R. onto the bed and they began kissing. Defendant put his hand in D.R.‘s pants and, similar to the first incident, put his finger in D.R.‘s vagina. They then joined the others in the next room. D.R.‘s friends then left, followed by defendant. Shortly thereafter, D.R.‘s mother arrived at the house where D.R. was babysitting. According to D.R., a neighbor had noticed D.R.‘s friends at the house and had called D.R.‘s mother.
D.R.‘s mother obtained a court order of protection against defendant. In October 2003, defendant violated the order of protection by meeting and talking with D.R. in a public park. Defendant was subsequently convicted of unlawful violation of an order of protection and was sentenced to 24 months’ probation.
In August 2004, pursuant to a fully negotiated plea agreement,1 defendant pleaded guilty but mentally ill to count I of the indictment for predatory criminal sexual assault. In return, the State entered a nolle prosequi on the remaining counts and recommended a sentence of six
According to the documents available to the circuit court prior to sentencing, defendant was enrolled in early childhood education as a speech- and language-impaired student in September 1987, when he was three years old. In the spring of 1989, his status was changed to learning disabled with a secondary disabling condition of speech and language impairment. Once he started school, he was given special education services beginning in the first grade and continuing through the twelfth grade. In the first grade, defendant was held back a year, apparently because he was a “slower learner.”
In July 1999, the summer before his freshman year in high school, defendant was diagnosed with B-cell type leukemia. He was treated at St. Jude‘s Hospital in Memphis, Tennessee, from July to December 1999, and apparently missed much of his freshman year in school. Defendant graduated from high school in May 2003. His cancer is now in remission.
Defendant told Eckert, the defense psychologist, that D.R.‘s parents spoke to defendant about his relationship
Other than his convictions for predatory criminal sexual assault and unlawful violation of an order of protection, defendant‘s prior history—as of September 2004, the date of the PSI—included only traffic violations such as speeding, disregarding a stop sign and violation of the seat belt provisions of the Illinois Vehicle Code.
Eckert‘s report was based, in part, on his interview with defendant in August 2003 and on a number of tests, including the Wechsler Adult Intelligence Scale—Third Edition. Eckert estimated defendant‘s level of cognitive functioning to be within the borderline impaired range. Defendant‘s judgment, insight and ability to reason abstractly were all estimated to be mildly impaired, primarily beсause of defendant‘s limited cognitive abilities.
Eckert noted that defendant‘s nonverbal cognitive skills were “significantly better developed” than his verbal skills. Regarding defendant‘s verbal skills, Eckert stated that defendant‘s verbal IQ, receptive-language skills, word-recognition skills, and reading-comprehension skills were “all extremely poorly developed.” Indeed, defendant‘s receptive-language skills “suggest that he comprehends information spoken to him[] at about the level of a ten year old.” Eckert also opined that defendant was functionally illiterate. He explained that the common definition of functional literacy requires at least a fifth-grade reading-comprehension level. According to Eckert, defendant‘s reading comprehension was at about the fourth-grade level.
Finally, Eckert stated that, in his professional opinion, defendant did not possess “the intellectual capacity to understand that his conduct with [D.R.] was criminal, simply based on their chronological age difference.” Eckert added: “I am not at all convinced that [defendant] even currently understands why his relationship with [D.R.] was criminal.”
The report issued by Chapman, the State-retained psychiatrist, was based, in part, on interviews with defendant in March 2004. With regard to defendant‘s mental functioning, Chapman reached a conclusion similar to Eckert‘s. Chapman diagnosed defendant as borderline mentally retarded with a learning disorder. According to Chapman, defendant described his reading as “poor” and said he could not read sentences. Chapman stated that defendant was able to read a simple sentence “but demonstrated a lack of understanding of the meaning.”
Chapman disagreed with Eckert‘s conclusion regarding defendant‘s ability to appreciate the criminality of his conduct. Chapman opined that defendant “did not suffer a mental disorder or defect that caused him to lack the capacity to appreciate the criminality of the behavior leading to the present charge of Predatory Criminal Sexual Assault.”
Defendant‘s difficulties, both academic and social, were reflected in many of the letters that were written in his support. A teacher‘s aide wrote that defendant “had trouble processing and retaining information.” Another
“During the two school years that I had contact with [defendant] in school, he rarely socialized with students of his age. His friends were much younger age-wise, but at similar social, emotional, and maturity levels. *** [I]t seemed that [defendant] felt more comfortable talking with these students and spending time with them. Because of [defendant‘s] social, emotional, and maturity levels, he was spending time with students who were very much like him.”
Defendant was also described in various letters as polite, caring, nonaggressive and willing to help others. With regard to his behavior in school, defendant was described as someone who took his school work seriously and tried his best in spite of his difficulties.
At the sentencing hearing, the State acknowledged that defendant was “slower than some” but argued that he nevertheless understood the criminality of his conduct and should be held responsible for it. After noting the seven-year difference in age between defendant and D.R., the State asked the court, “on behalf of [D.R.] and her family,” to impose a sentence of six years’ imprisonment. This sentence, the statutory minimum for a Class X felony, was the term the parties had agreed upon as part
In his argument, defense counsel pointed to a number of mitigating factors. Counsel noted defendant‘s mental impairment, asserting that, according to Eckert‘s psychological evaluation, defendant “functions at the emotional and mental maturity of an 11-year-old.” According to counsel, defendant was not a predator in his relationship with D.R. Rather, because defendant himself was essentially a child, he and D.R. were, in effect, “two young children” in a boyfriend and girlfriend relationship.
Counsel also noted that, according to the record, defendant was not the one who initiated the relationship. Counsel stated: “[D.R.] asked her friend *** to hook them up. Her terminology. And so [the friend] contacted [defendant] and asked him if he would go out with her. *** And after some thought in the process he said he would.”
Counsel argued, in addition, that there were mitigating circumstances in defendant‘s violation of the order of prоtection. As previously indicated, defendant violated the order in October 2003, about six months after it was entered, by meeting and talking with D.R. in a public park. According to defense counsel, that meeting took place at the instigation of D.R., who asked a friend to arrange for defendant to meet D.R.
In sentencing defendant, the circuit court acknowledged defendant‘s “unique mental limitations” but noted that, under the statutory offense to which defendant pleaded guilty, a term of imprisonment was required. The court observed that services were available in prison for persons such as defendant with mental limitations. However, in the court‘s view, these services were “woefully inadequate to deal with the problems this defendant has.” The court stated: “As a result of this court‘s belief
The court commented further on defendant‘s mental impairment and its impact on his sentencing decision:
“His mental illness is somewhat of a double-edged sword. On one hand, it instills a great deal of sympathy and compassion, as [defense counsel] stated in his beginning remarks. And the system for which we work does not afford those types of individuals a great deal of consideration. But it also instills a great deal of fear in the community because, as demonstrated by this particular defendant, [despite] insistence by his parents, insistence by [D.R.‘s] parents, insistence by this court in *** issuing orders of protection, *** none of those things were successful at keeping this young man away from this young girl.
[Defendant] had more than ample opportunity throughout the course of this case to demonstrate his ability to control himself. He did not do so. And that should terrify the public.”
The court rejected the 6-year sentence recommended by the State and imposed a sentence of 10 years in prison.
In October 2004, defendant filed a motion to reconsider sentence. In his motion, defendant cited a number of factors, including “the Defendant‘s diminished mental functioning,” in arguing that the 10-year sentence was “unduly harsh and severe.” Defendant asked the court to “give further consideration to the records and reports contained in the ‘Supplementary Pre-Sentence Report’ and impose a sentence in accordance with the recommendation of the State‘s Attorney of six years in the Illinois Department of Corrections.”
At the hearing on the motion to reconsider, defense counsel offered arguments similar to those he had advanced at the sentencing hearing. Counsel pointed to defendant‘s mental impairment, noting that he was “functioning at the emotional maturity of an 11-year-old
The circuit court denied the motion to reconsider sentence. According to the court, defense counsel‘s arguments were, in essence, no different from the arguments he had previously made.
On appeal, defendant argued that the circuit court abused its discretion by improperly considering defendant‘s mental retardation as an aggravating factor in sentencing.2 In supрort, defendant noted that the Unified Code of Corrections (Corrections Code) (
The appellate court concluded that defendant failed to raise this argument in his motion to reconsider sentence, and the issue therefore was not properly preserved for review. The appellate court nevertheless
The appellate court majority upheld the sentence imposed, holding that the circuit court could properly consider the aggravating aspects of defendant‘s mental disability. The court stated: “Defendant‘s failure to control his impulses and conform his behavior does bear upon future dangerousness, and the trial court could properly consider this as a factor in aggravation.” In explaining this decision, the majority nevertheless noted that “this is an unusual case.” The court stated:
“Defendant is borderline mentally retarded and has the mental functioning and maturity of a 10 to 11 year old. Defendant befriended primarily younger children because he apparently felt more comfortable with them than his peers due to his limitations. *** Defendant is not an adult who used his superior knowledge, power, or experiences to exploit the innocence of a child. Defendant himself operates as a child. Defendant engaged in what he perceived to be consensual contact with a physically mature person he perceived, although incorrectly, as a peer.” No. 4-04-0932 (unpublished order under Supreme Court Rule 23).
The dissenting justice asserted that defendant‘s sentence should not have exceeded the statutory minimum of six years. The dissent stated: “The court clеarly recognized defendant‘s cognitive age and his perhaps understandable inability to conform his actions to the law applicable to his chronological age. Yet, the court used that circumstance to aggravate, rather than mitigate, the sentence imposed.” No. 4-04-0932 (Appleton, J., dissenting) (unpublished order under Supreme Court Rule 23).
Our initial task is to determine the issue or issues that are properly before us. In his appellant brief to this court, defendant argues that the trial court improperly relied “upon the defendant‘s mental retardation as a significant factor in aggravation” where the Illinois legislature has “determined that mental retardation is properly considered as a factor in mitigation.” Defendant points to section 5-5-3.1(a)(13) of the Corrections Code, which lists mental retardation as a factor in mitigation.4
Defendant advanced this same argument in the appellate court below. According to defendant, the trial court erred in characterizing his “impaired mental condition as a factor in aggravation, when the legislature has determined that mental retardation is a factor in mitigation.” Accordingly, barring any failure on defendant‘s part to include this issue in his motion to reconsider sentence, it is this claim—that defendant‘s mental retardation was improperly considered as an aggravating factor—which is before us. See People v. Reed, 177 Ill. 2d 389, 393 (1997). The State argues that this claim was not included in defendant‘s motion to reconsider sentence. According to the State, defendant has forfeited this issue on appeal.
In his motion to reconsider sentence, defendant expressly mentioned his “diminished mental functioning” and asked the trial court to “give further consideration to the records and reports contained in the ‘Supplementary Pre-Sentence Report’ ” and to impose a 6-year—rather than a 10-year—sentence. The motion followed the trial court‘s imposition of a sentence that was four years greater than the statutory minimum recommended by the State “on behalf of [D.R.] and her family.”
At the hearing on the motion to reconsider sentence, defense counsel began by arguing that defendant “is not your normal criminal,” but rather “is a kind and decent and caring person.” Counsel described defendant as a “19-year-old mentally impaired boy whose transgression in this case [was] being receptive to the affections of the 12-year-old girl.”
Shortly thereafter, counsel referred to the circuit court‘s comment at sentencing describing mental impairment as a “double-edged sword.” Counsel stated: “At the sentencing hearing the court made an observation which I—it struck me as very accurate. The court said that mental impairment, mental illness, can be a double-edged sword. And I agree with that observation, your Honor.” As previously noted, the circuit court explained at sentencing that mental retardation is “double-edged” in that, “[o]n one hand, it instills a great deal of sympathy
Continuing his argument at the motion hearing, defense counsel argued, in essence, that any aggravating aspects of mental retardation should not apply to defendant. He asserted that it is a person‘s “heart” or “personality” that drives a person to commit crimes, not his lack of intelligence. He acknowledged that a person who is mentally impaired tends to be a follower and is “vulnerable to being led or misled by somebody with superior intellect.” However, he added that mental impairment, in itself, “is no more likely to cause [a] person to be devious than if that person was not impaired.” Defendant in the instant case, counsel asserted, was not devious. Counsel observed that, prior to this case, defendant “has never been in trouble in his life by all accounts.” In conclusion, counsel noted the 10-year sentence imposed by the court, and stated: “[T]he statute requires a minimum of six in this situation, and I beg you, Your Honor, that‘s enough.”
In his reference to the circuit court‘s “double-edged sword” comment, defense counsel was noting that mental impairment is sometimes viewed as both mitigating and aggravating. Implicit in this “double-edged sword” reference was the Corrections Code provision listing mental retardation as a mitigating factor (
After reviewing the record, we are persuaded that defendant has preserved for review the claim that his mental impairment was improperly considered as an aggravating factor. There are several reasons for requiring that an objection be mаde first at trial in order to preserve an issue for appeal. One is that this allows the trial court an opportunity to review a defendant‘s claim of sentencing error and save the delay and expense inherent in appeal if the claim is meritorious. Reed, 177 Ill. 2d at 394. A second reason for this requirement is to prevent a litigant from asserting on appeal an objection different from the one he advanced below. Our review of the record leaves us satisfied that these purposes have been met. The trial court had an opportunity to review defendant‘s claim, and defendant is not asserting in this court a completely different objection from the one he raised below. At the motion hearing, defense counsel expressly referred to the “double-edged” nature of mental retardation, argued that any aggravating aspects of mental retardation should not apply to defendant, and urged the trial court to reduce defendant‘s sentence. In circumstances such as these, where the trial court clearly had an opportunity to review the same essential claim that was later raised on appeal, this court has held that there was no forfeiture. See People v. Mohr, 228 Ill. 2d 53 (2008); People v. Coleman, 227 Ill. 2d 426 (2008).
We turn to the issue of whether, in view of the
The State responds that the trial court did not use defendant‘s mental retardation as an aggravating factor. The State notes that the maximum sentence for a Class X felony is 30 years. According to the State, if the court had viewed defendant‘s mental impairment as a factor in aggravation, it likely would have imposed a much longer sentence. In the State‘s view, the actual sentence of 10 years shows that the trial court considered defendant‘s mental deficiency as a mitigating—not an aggravating—factor.
Section 5-5-3.1(a) of the Corrections Code lists factors in mitigation, which “shall be accorded weight in favor of withholding or minimizing a sentence of imprisonment.”
Section 5-5-3.2(a) lists factors in aggravation, which “shall be accorded weight in favor of imposing a term of imprisonment or may be considered by the court as reasons to impose a more severe sentence under Section 5-8-1.”
Given that the legislature chose to include mental retardation as a mitigating factor in section 5-5-3.1(a) but did not choose to include it as an aggravating factor in section 5-5-3.2(a), we consider it beyond dispute that the use of mental retardation as an aggravating fаctor in sentencing is improper. Some clarification of terms is in order.
There are two basic ways in which it might be said that mental retardation is used as an aggravating factor in sentencing. First, the trial court might conclude that the sentence of a mentally retarded defendant should be increased purely because he is mentally retarded. This would, in essence, be discriminatory—a consideration of mental retardation as a per se aggravating factor—which is prohibited under the statute.
Alternatively, a trial court might conclude, from the evidence, that a defendant‘s mental retardation rendered him dangerous to the community, and for this reason decided to increase the defendant‘s prison sentence. If, for example, the evidence established that a defendant had diminished impulse control as a result of his mental deficiency, and if that lowered impulse control rendered him a threat to the community, a trial court might
In the case at bar, defendant‘s claim is not that the trial court engaged in the purely discriminatory use of mental retardation as an aggravating factor. Instead, defendant argues that the trial court improperly perceived defendant as dangerous, as a result of his mental retardation, and in that sense used defendant‘s mental deficiency as an aggravating factor in determining defendant‘s ultimate sentence.
As noted, this sort of consideration of mental retardation in sentencing is not improper, so long as the evidence supports the trial court‘s conclusion that the defendant is dangerous. Defendant argues that there was no basis in the evidence for the trial court‘s conclusion that defendant posed a future danger to the community. In this sense, then, defendant argues that the trial court improperly considered his mental retardation as a factor in aggravation.
A sentence based on improper factors will not be affirmed unless the reviewing court can determine 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. People v. Conover, 84 Ill. 2d 400, 405 (1981), cited in People v. Martin, 119 Ill. 2d 453, 458 (1988); see also People v. Saldivar, 113 Ill. 2d 256, 272 (1986) (reducing sentence, where circuit court erred in imposing sentence in excess of statutory minimum based on improper aggravating factor).
In the case at bar, the circuit court clearly indicated at sentencing that, in the court‘s view, defendant posed a serious future threat to the community as a result of his mental impairment. The court asserted, for example, that defendant was “desperately” in need of “services” to deal with his “problems,” but that any such services he might receive in prison would be “woefully inadequate to deal with the problems this defendant has.” The court stated: “As a result of this court‘s belief that the Department of Corrections will not provide the defendant with the services that he needs adequately, this court must impose a sentence which will protect the public from further acts by this defendant.” A short time later, the court stated: “I can‘t imagine that a community, our communities in particular, would condone the free movement of an individual such as [defendant] with all his problеms, whether they be inherited or otherwise, into the community.” In addition, as previously noted, the court referred to defendant‘s mental impairment as a “double-edged sword” that was both mitigating and aggravating. According to the court, while defendant‘s mental retardation “instills a great deal of sympathy and compassion *** it also instills a great deal of fear in the community.” The court pointed to efforts by defendant‘s parents and D.R.‘s parents to keep defendant and D.R. apart, as well as to the order of protection entered by the court. The court stated: “[Defendant] had more than ample opportunity throughout the course of this case to demonstrate his ability to control himself. He did not do so. And that should terrify the public.”
As noted, where a defendant poses a future threat as a result of his mental retardation, there is nothing
For example, notwithstanding that defendant was charged with the offense of predatory criminal sexual assault, and notwithstanding that he pleaded guilty to this offense, there is virtually nothing in the record to indicate that defendant was, as the circuit court characterized him, a “sexual predator *** who commits crimes against young people.” Prior to this case, defendant‘s history—as shown in the presentence investigation report—included only traffic violations such as speeding, disregarding a stop sign and violation of the seat belt provisions of the
Finally, the 6-year sentence recommended by the State, “on behalf of [D.R.] and her family,” undermines the conclusion that defendant posed so serious a future threat that a 10-year sentence—4 years longer than the recommended statutory minimum—was required to protect the public.
Where a court imposes a sentence based on a conclusion that the defendant‘s mental retardation renders him a future dаnger, and where the record does not support such a conclusion, the court has improperly relied on mental retardation as an aggravating factor in sentencing. Here, the circuit court improperly concluded that because of his mental impairment, defendant was an individual of whom the public should be “terrif[ied],” and the court imposed a sentence four years longer than the recommended statutory minimum. In this instance, the circuit court improperly relied on defendant‘s mental retardation as an aggravating factor in sentencing.
We further conclude that the weight placed on this improper factor was significant enough that it led to a greater sentence. See Conover, 84 Ill. 2d at 405, cited in Martin, 119 Ill. 2d at 458. Defendant‘s alleged future dangerousness was, in essence, the aggravating factor relied upon by the court in fixing the sentence. See Saldivar, 113 Ill. 2d at 272. In its comments at sentencing, the court referred to defendant‘s “limitations” and
Under these circumstances, the 10-year sentence imposed by the circuit court cannot be affirmed. Accordingly, the judgment of the appellate court is reversed, and defendant‘s sentence is vacated. We remand the cause to the circuit court of Woodford County for resentencing. In view of the comments made by the circuit court at sentencing, we conclude that, in order to remove any suggestion of unfairness, this case should be assigned to a different judge on remand. See People v. Dameron, 196 Ill. 2d 156, 179 (2001).
CONCLUSION
For the reasons stated, we reverse the judgment of the appellate court. Defеndant‘s sentence is vacated, and the cause is remanded to the circuit court of Woodford County for resentencing to be conducted by a different judge.
Appellate court judgment reversed; sentence vacated; cause remanded with directions.
CHIEF JUSTICE THOMAS, dissenting:
I disagree both with the majority‘s forfeiture analysis and with its conclusion that the trial court improperly used defendant‘s mental retardation as an aggravating factor in sentencing defendant. Accordingly, I would affirm the appellate court‘s judgment.
FORFEITURE
Resolution of this appeal should be relatively straight-
“Considering the facts and circumstances of this case, the history and character of the Defendant, the Defendant‘s lack of any prior criminal record, and the Defendant‘s mental functioning, the sentence of ten years in the Illinois Department of Corrections is unduly harsh and severe.”
Defendant did not argue that the trial court improperly treated mental retardation—a statutory mitigating factor—as aggravating. Accordingly, that claim is forfeited.
Forfeiture in criminal cases is governed by Rule 615, which provides that, “Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the reviewing court” (134 Ill. 2d R. 615). In People v. Piatkowski, 225 Ill. 2d 551 (2007), we explained that, under Rule 615, a defendant may obtain relief on a forfeited issue when either of two situations is present: (1) “a clear or obvious error occurred and the evidence is so clоsely balanced that the error alone threatened to tip the scales of justice against the defendant, regardless of the seriousness of the error,” or (2) “a clear or obvious error occurred and that error is so serious that it affected the fairness of the defendant‘s trial and challenged the integrity of the judicial process, regardless of the closeness of the evidence.” Piatkowski, 225 Ill. 2d at 565. Once a forfeiture occurs, and plain-error review is triggered, the burden is on the defendant to demonstrate that one of these two prongs has been
The appellate court, after finding a forfeiture, erroneously reached defendant‘s issue on the basis that “forfeiture is a limitation on the parties, and not upon a reviewing court.” No. 4-04-0932 (unpublished order under Supreme Court Rule 23). The statement that “forfeiture is a limitation on the parties and not on the court” is not intended to be a catchall that allows reviewing courts to consider forfeited issues at will. Rather, this oft-misused and misunderstood statement has its genesis in Hux v. Raben, 38 Ill. 2d 223 (1967), in which a party argued that the appellate court lacked jurisdiction to decide the appeal on a ground that had not been raised before. This court rejected this argument, holding that Rule 341(e)(7)‘s statement that issues not raised in the briefs are waived “states an admonition to the parties, not a limitation upon the jurisdiction of the reviewing court.” (Emphasis added.) Hux, 38 Ill. 2d at 224. Reviewing courts in this state frequently drop the word “jurisdiction” and use this statement as а reason to excuse a party‘s forfeiture. However, as Hux itself recognized, forfeiture in criminal cases is governed by Rule 615‘s plain-error rule. Hux, 38 Ill. 2d at 224. When a court uses the phrase “forfeiture is a limitation on the parties and not on the court” as an independent basis for excusing a defendant‘s forfeiture, it improperly relieves the defendant of his burden of establishing plain error.
“At the sentencing hearing the court made an observation which I—it struck me as very accurate. The court said that mental impairment, mental illness, can be a double-edged sword. And I agree with that observation, your honor.”
The importance of this comment by defense counsel cannot be overstated because the trial court‘s “double-edged sword” comment is the very crux of defendant‘s argument as to why he deserves a new sentencing hearing. Not only is the majority not troubled in the least by defendant‘s shifting position on this issue, the majority holds that this comment is what allows us to reach the issue on appeal. The majority argues that “defendant is not asserting in this court a completely different argument from the one he raised belоw” because “[a]t the motion hearing, defense counsel expressly referred to the ‘double-edged’ nature of mental retardation, argued that any aggravating aspects of mental retardation should not apply to defendant, and urged the trial court to reduce defendant‘s sentence.” 231 Ill. 2d at 18. The majority concludes by finding support for its analysis in two recent decisions of this court: “In circumstances such as these, where the trial court clearly had an opportunity to review
Let us now consider the errors in the majority‘s analysis. First, the majority barely considers the motion defendant filed, which raised one argument: that the entirety of defendant‘s mitigating evidence should have led the court to impose a lesser sentence. Defendant did not argue that the court erred in treating a statutory mitigating factor—mental retardation—as aggravating. The majority seems satisfied that the motion did raise this issue because the motion mentioned defendant‘s “diminished mental functioning.” 231 Ill. 2d at 15.
The majority appears to be adopting an unprecedented approach to forfeiture analysis: the argument does not have to be the same, it merely has to relate to the same subject. The majority confirms this new analysis when it states that it will review defendant‘s issue because “defendant is not asserting in this court a completely different objection from the one he raised below.” (Emphasis added.) 231 Ill. 2d at 18. Thus, since the motion mentioned “diminished mental functioning,” this preserves for review any argument that has anything to do with mental retardation. Is this really how forfeiture analysis will be conducted in the future? If a motion to reconsider mentions “drugs” or “weapons” will that preserve for review all arguments that in any way mention drugs or weapons? Would an argument that the trial court abused its discretion in its weighing of the mitigating and aggravating factors preserve for review an argument that defense counsel was ineffective for failing to
Moreover, since when is the relevant inquiry whether the defendant is raising a completely different objection from the one he raised below?8 Apparently, the majority would find preserved for review an argument that was 99% different from the one raised in the trial court. This makes no sense because, as the majority acknowledges, the reason we require issues to be raised first in a postsentencing motion is to give the trial court the opportunity to address the claim first and to possibly save the expense and delay of an appeal if the argument is meritorious. Reed, 177 Ill. 2d at 394. Further, “[s]uch a motion also focuses the attention of the trial court upon a defendant‘s alleged errors and gives the appellate court the benefit of the trial court‘s reasoned judgment on those issues.” Reed, 177 Ill. 2d at 394. Obviously, these policies cannot be vindicated unless the issue presented on appeal is the same as the one presented in the trial court. The majority seems not in the least concerned at the extent to which its analysis undermines Reed and, indeed, states that it believes that Reed‘s purposes have been satisfied here. 231 Ill. 2d at 18. If that is true, perhaps the majority could cite to the portion of the record in which we are given the benefit of the trial
The majority denies that it is implementing a new forfeiture analysis by merely requiring the issue raised in the postsentencing motion to contain some of the same words as the issue raised on appeal. The majority cites to Mohr and Coleman, and states that these cases stand for the proposition that “whеre the trial court clearly had an opportunity to review the same essential claim that was later raised on appeal, this court has held that there was no forfeiture.” 231 Ill. 2d at 18. The majority, however, includes no discussion of Mohr and Coleman. This is no doubt because neither case offers the slightest support for the majority‘s position.
In Coleman, the defendant argued both in the trial court and in the reviewing courts that his motion to suppress certain audio recordings should have been granted. The State argued forfeiture on the basis that defendant did not include in his motion the portion of his argument that this court should overturn certain appellate court precedent. This court rejected the State‘s argument, noting that “the fact that [defendant] did not ask the trial court to ignore appellate court precedent is unsurprising: the decisions of our appellate court are binding on all circuit courts.” Coleman, 227 Ill. 2d at 433. Thus, Coleman stands for nothing more than the unremarkable and self-evident proposition that, before a party may ask a court to overturn precedent, it does not need to
In Mohr, the issue was not whether the issue raised in the posttrial motion needed to be the same as the issue raised on appeal but whether the issue objected to at trial needed to be the same as the one raised in the posttrial motion. The court split 6-1 on this issue. The majority held that, as long as the defendant objected to a particular instruction both at trial and in the posttrial motion, the reason for the defendant‘s objections did not have to be the same: “The State essentially asks us to tailor the forfeiture rule, requiring the defendant to assert the same argument at trial and in his posttrial motion as to why an instruction was improper. We decline to do so.” Mohr, 228 Ill. 2d at 65; but see Coleman, 227 Ill. 2d at 433 (“to preserve an issue for appellate review, a defendant must both object at trial and present the same issue in a written posttrial motion” (emphasis added)). The dissent would have found the claim forfeited and subject to plain-error review. The dissent argued that the State was not asking this court to tailor the forfeiture rule but to apply the forfeiture rule. According to the dissent, the majority‘s ruling eroded “the bedrock requirements that both a trial and posttrial objection are required to preserve a trial error, and that a specific objection at trial waives all other unspecified grounds that might later be raised with respect to a jury instruction.” (Emphasis in original.) Mohr, 228 Ill. 2d at 76 (Thomas, C.J., dissenting). Whatever one thinks of the Mohr dispute, at least in that case the issue was raised in the posttrial motion so the trial court was given a chance to review the issue before it was raised on appeal. In that case, we specifically noted that the issue defendant raised on appeal, although different from his trial court objection on the issue, was the same as that argued in his posttrial motion. Mohr, 228 Ill. 2d at 65.
As noted above, the majority spends very little time (one sentence) on defendant‘s motion to reconsider and spends the lion‘s share of its forfeiture analysis attempting to show that the issue was raised at the hearing on the motion to reconsider. It should go without saying that, as the hearing‘s purpose is to allow counsel to argue why the motion should be granted, it is not the place for raising entirely new issues. The majority fails to cite any authority for the proposition that a party can preserve an issue by raising it not in a motion to reconsider the sentence but at a hearing on the motion. Be that as it may, we need not dwell on that point because defendant did not raise the argument at the hearing either. The thrust of defense counsel‘s argument was that the 12-year-old girl, not defendant, was the sexual predator. Defense counsel also argued that defendant is a good person and that the court should focus on defendant‘s heart. Defense counsel said not one word about aggravating factors10 and made no mention of the statute that defendant claims on appeal that the trial court violated.
The majority finds that this argument at the hearing preserved defendant‘s right to claim on appeal that the trial court‘s characterization of mental retardation as a double-edged sword was erroneous as a matter of law and that he disagreed with it. Here is how the majority comes to that conclusion. The majority acknowledges that, when the trial court referred to mental retardation as a double-edged sword, it was referring specifically to defendant‘s mental retardation (“[h]is mental illness is somewhat of a double-edged sword“). However, even though defense counsel referenced that specific statement of the trial court, what defense counsel was saying was that in general mental retardation may be both aggravating and mitigating, but that was not true of defendant‘s mental retardation. The majority claims that this must have been what defensе counsel was saying because an acknowledgment that defendant‘s mental retardation was both aggravating and mitigating would have been contrary to defense counsel‘s argument that defendant‘s sentence should be reduced. It is not clear from where the majority derives the notion that a defendant may not argue that a sentence should be reduced if the defendant acknowledges that there is anything aggravating in the evidence. The argument defendant raised in his motion to reconsider the sentence was that the entirety of the mitigating evidence should have led the court to impose a lesser sentence. That argument is not undermined by a concession that defendant‘s mental illness is a double-edged sword. Moreover, the majority‘s characterization of defense counsel‘s argument is pure invention. Nowhere in that argument did defense counsel argue that, in
The majority apparently does not realize that, if its characterization of defense counsel‘s argument is accepted, that would prove defendant‘s forfeiture. Defendant‘s argument before this court is that mental retardation may not be used as a factor in aggravation. It is not defendant‘s argument that it may be used in aggravation, just not in this case. As аrgued by defendant in his brief:
“Much like the United States Supreme Court, the Illinois legislature has recognized that mental retardation is only a factor in mitigation. The Illinois Criminal Code contains a list of 13 grounds which ‘shall be accorded weight in favor of withholding or minimizing a sentence of imprisonment.’ The last item in section 5/5-5-3.1(a)(13) is that ‘[t]he defendant was mentally retarded as defined in [730 ILCS ....’ [sic]
730 ILCS 5/5-5-3.1(a)(13) (West 2002) .Section 5/5-1-13 defines ‘mentally retarded’ as ‘sub-average general intellectual functioning generally originating during the developmental period and associated with impairment in adaptive behavior reflected in delayed maturation or reduced learning ability or inadequate social adjustment.’730 ILCS 5/5-1-13 (West 2002) . Significantly, mental retardation is not listed among the 21 statutory factors in aggravation.730 ILCS 5/5-5-3.2(a)(1-21) (West 2002) .” Defendant‘s brief at 35.
Defendant then references People v. Kuntu, 196 Ill. 2d 105 (2001), in which this court held that the State was not entitled to argue that the statutory mitigating factor of lack of criminal history may be used in aggravation. This court held that the sentencer did not have to place any weight on that factor, but that it could not interfere with the legislative scheme by converting it to a factor that weighs in favor of the death penalty. Kuntu, 196 Ill. 2d at 142.
Clearly, then, defendant‘s argument before this court is that a court may not as a matter of law treat a statutory mitigating factor as aggravating. If, as the majority insists, the most sensible interpretation of counsel‘s argument at the hearing on the motion to reconsider is that trial courts may in general treat mental retardation as aggravating, then defendant has unquestionably forfeited his right to argue on appeal that trial courts are categorically prohibited from doing so. Having taken its best shot at finding the argument not forfeited, even going so far as to advance an argument that defendant never made, the best the majority can do is to conclusively prove the forfeiture.
The most regrettable thing about the majority‘s analysis is that it undermines plain-error review аnd guarantees that arbitrariness will rule forfeiture analysis. In this opinion, the court had the chance to ensure that forfeiture analysis will be both fair and straightforward. A court should look to see if the specific argument was made below at the proper time. If it was, address the issue. If not, hold the defendant to his burden of establishing plain error. All defendants should be held to the same standard. Instead, the majority gives the courts free rein to consider whether defendant is raising an issue on appeal that is “completely different” from the one asserted below. If the issue was not raised in the motion where it should have been, courts may consider whether the defendant essentially made that argument at the hearing
MERITS
Once the majority improperly reaches defendant‘s issue, it continues to make errors and to expand the issues on appeal. The first problem in this section of the opinion is the majority‘s failure to set forth a standard of review. This may be because what the majority opinion ultimately does is to confuse a discretionary weighing of sentencing factors with a question of law. Defendant frames his issue in terms of trial court discretion. According to defendant, a trial court abuses its discretion if it treats mental retardation as aggravating. The majority never explains if it agrees with defendant that abuse of discretion review is appropriate. Rather, the majority makes
At the outset, it is important to note that the majority explicitly endorses the trial court‘s “double-edged sword” comment. The majority states that it recognizes that, in some cases, the effects of mental retardation can be viewed as aggravating. 231 Ill. 2d at 21. If the defendant‘s mental retardation has resulted in the
In People v. Ward, 113 Ill. 2d 516 (1986), a case in which the defendant argued that the trial court improperly considered his protestation of innocence as an aggravating factor at sentencing, this court explained that:
“Before reversing a sentence imposed by the trial court it must be clearly evident that the sentence was improperly imposed. [Citations.] In making the determination, the reviewing court should not focus on a few words or statements of the trial court. Rather, the determination of whether or not the sentence was improper must be made by considering the entire record as a whole.” Ward, 113 Ill. 2d at 526-27.
The majority does not set forth the trial court‘s comments in their entirеty, and instead merely culls from those comments isolated remarks that it believes support its result. The majority does not even consider or set forth the comments that the State relies upon in arguing that the trial court did not consider defendant‘s mental retardation to be an aggravating factor. I believe that when the trial court‘s comments are considered in their entirety, the most reasonable inference is that the trial court did view defendant‘s mental retardation as mitigating and gave defendant a shorter sentence than it would have had defendant not been mentally retarded. However, the trial court found that a longer sentence than that
“Court has considered the factual basis given at the time of the original plea, the contents of the Presentence Investigation and the Addendum thereto, and each and every statutory factor in aggravation and mitigation.
This case cannot be viewed, I suppose, in a normal sense of a criminal conducting or committing a crime against society or against another individual because of the unique mental limitations of the defendant. But other than pleading the way this defendant pled, in other words, guilty but mentally ill, the law does not give this court discretion in determining whether the defendant should be returned to society or incarcerated.
For there is no doubt, I‘m sure, that everyone in this room and anyone who would be asked to provide a collective judgment within the community would agree that a 19 or 20-year-old sexual predator of young girls should deserve a substantial sentence in prison. That may or may not be true for a 20-year-old sexual predator with an 11-year old mentality.
But, unfortunately, due to the—I guess I would argue is the past transgressions of those who serve in positions similar to mine, the legislature has found fit to mandate minimum prison sentences on offenses—for offenses such as this. As a result, this court is prohibited from imposing a sentence which would provide for the services that the defendant desperately needs, given his unique limitations. The legislature has required that the defendant be placed in prison. And although there are services provided in prison, they are woefully inadequate to deal with the problems this defendant has. And the result, as Mr. Bernardi has indicated, this case demonstrates at least one, if not more than, the complete, utter failure of the criminal justice system to deal with problems such as this.
As a result of this court‘s belief that the Department of Corrections will not provide the defendant with the services
I feel compelled, I suppose, it was not part of my notes, to address a portion of the argument that was made by Mr. Bernardi concerning the collective judgment of the community. And we have heard from numerous members of the community here, relatives and friends and coworkers and teachers and social workers, all of which who are acquainted one way or another with the defendant. But we have not heard from those unnamed and unfamiliar citizens of our community who will only know Blake Heider as a sexual predator, who will only know this man as a person who commits crimes against young people. And I suppose I beg to differ with Mr. Bernardi in that respect, because I can not imagine that a community, our communities in particular, would condone the free movement of an individual such as Blake with all his problems, whether they be inherited or otherwise, into the community.
His mental illness is somewhat of a double-edged sword. On one hand, it instills a great deal of sympathy and compassion, as Mr. Bernardi stated in his beginning remarks. And the system for which we work does not afford those types of individuals a great deal of consideration. But it also instills a great deal of fear in the community because, as demonstrated by this particular defendant, insistence by his parents, insistence by [D.R.s] parents, insistence by this court in ordering—issuing orders of protection, did not—and I am sure with each of those instances an explanation was—accompanied those discussions of the illegal nature of these contacts, but none of those things were successful at keeping this young man away from this young girl.
Mr. Heider had more than ample opportunity throughout the course of this case to demonstrate his ability to control himself. He did not do so. And that should terrify the public.
Sentence of the court is ten years Department of Corrections.
The primary concern expressed by the trial court was protection of the public from a defendant who, despite repeated warnings and an order of protection, could not keep away from a 12-year-old girl whom he had sexually abused. As the State points out, an essential but unstated component of defendant is claim that the trial court considered his mental retardation as an aggravating fac
Clearly, no error of law occurred. The majority agrees that future dangerousness is a legitimate factor in aggravation, even if mental retardation is a component of a defendant is future dangerousness, and there is no evidence that the trial court considered anything aggravating about defendant is mental retardation except as it related to future dangerousness.
I also do not find an abuse of discretion in the manner in which the trial court weighed the sentencing factors. It is well settled that the trial court is the proper forum to determine a sentence and that the trial court is sentencing decision is entitled to great deference and weight. People v. Latona, 184 Ill. 2d 260, 272 (1998). When a reviewing court examines the propriety of a sentence, it must proceed with great caution, and it may
I can find no abuse of discretion in the manner in which the trial court arrived at its sentence. Defendant committed a very serious offense for which the legislature has determined that a maximum sentence of 30 years imprisonment is appropriate. The majority is simply incorrect that there was no evidence to support the trial court is future-dangerousness finding. Defendant is own evidence showed that he felt more comfortable with and spent more time with minors who were closer to his mental age than to his chronological age. According to the principal at defendant is junior/senior high school, defendant is friends were much younger students who enjoyed spending time with defendant because he was older and had a car. Defendant was charged with three counts of predatory criminal sexual assault against a 12-year-old girl, D.R., and pleaded guilty to one of the
“Then he started unzipping his pants. *** Then he took my head and put it down to his penis. *** He just pushed me down. *** I tried to get up, but *** his hands were still there and I tried to get up and then he finally let go.”
When asked how this made her feel, D.R. explained, “I was kind of scared a little after that, too.” On a third occasion, defendant again placed his fingers in D.R.s vagina. Defendant was warned to stay away from D.R. by his own parents and by D.R.s parents, and the court ultimately entered an order of protection against defendant. Defendant met with D.R. again while the order of protection was in effect and pleaded guilty to violating the order.
Given this evidence, I fail to see how the majority could possibly conclude that there is no evidence supporting the trial court is determination that protection of the public was necessary. Here, the fact that defendant violated a restraining order prohibiting him from having contact with the minor that he had sexually abused sufficiently supports the trial court is determination. Moreover, defense counsel expressly conceded at the hearing on the motion to reconsider that defendant “is subject to being influenced and led down the wrong path because of his intellect.”
The majority also claims that there is no evidence to support the trial court is conclusion that members of the public might be terrified of defendant. The trial court is comments were just a matter of common sense. Consider how a parent in the community would feel knowing that defendant was hanging around children, that he had driven one of them around in his car, placed his fingers in her vagina and scared her, goaded her into performing oral sex on him and forcibly held her head down on his penis, and then violated a restraining order requiring him to stay away from her. Are my colleagues seriously
Finally, the majority misses the point when it holds that defendant is violation of the restraining order was entitled to no weight because the contact was instigated by the victim and the meeting took place in a public park. The point of defendant is violation of the restraining order is that it showed that all efforts to keep defendant away from the minor whom he had abused were futile. This finding was proper under the very law that the majority establishes. The majority specifically holds that mental retardation may be considered as aggravating if it leads to a lack of control on defendant is part. 231 Ill. 2d at 21. The evidence unquestionably supported the trial court is finding that defendant had not shown an ability to control himself and that all efforts to keep him away from the victim had failed. Moreover, the last time that the victim had pursued a relationship with defendant, defendant turned it into a criminal sexual relationship. The trial court could rightly be concеrned that nothing was going to keep defendant away from the victim and that there was a danger of more abuse occurring. One could even conclude that such a recurrence was likely, given defense counsel is concession that defendant “is subject to being influenced and led down the wrong path because of his intellect.”
My colleagues have undoubtedly demonstrated that there is more than one way to look at this evidence. They have also ably demonstrated that they would have weighed the evidence differently than did the trial court and that they would have imposed a lesser sentence on defendant. This is no basis upon which to reverse a sentence. Streit, 142 Ill. 2d at 19. What my colleagues have not done is to demonstrate that the trial court is
CONCLUSION
Today is opinion will send the unfortunate message that results matter more than the law. A straightforward application of well-settled law leads to the unmistakable conclusion that the appellate court is judgment must be affirmed. Instead, the majority reverses and repeatedly ignores basic rules of appellate procedure along the way. Defendant clearly forfeited his issue, and this court should require him to meet his burden of establishing plain error. The forfeiture analysis the majority uses here is unprecedented and severely undermines the plain-error rule. Moreover, the forfeiture analysis the majority uses is based on an argument defendant never even made. When the majority reaches the merits of the issue, it once again goes beyond what the defendant argued and decides an issue other than the one defendant raised. I would hold that defendant forfeited the only issue he is raising on appeal, and I would affirm the appellate court is decision.
JUSTICES GARMAN and KARMEIER join in this dissent.
JUSTICE KARMEIER, also dissenting:
I join in Chief Justice Thomas is well-reasoned dissent, and I write separately only to add a few observations of my own.
By remanding this cause for resentencing before a different judge, the majority not only wastes judicial resources, but also administers an undeserved slap in the face of the sentencing judge, who did nothing to warrant such treatment. To the contrary, the record shows that the sentencing judge conscientiously weighed the appropriate aggravating and mitigating factors when he imposed the defendant is 10-year sentence. Certainly, this case is nothing like People v. Dameron, 196 Ill. 2d 156 (2001), the case cited by the majority to support its action, and it is not surprising that the majority does not discuss Dameron. In Dameron, the sentencing judge repeatedly referenced evidence and sources not of record in handing down a sentence of death. Given the facts of this case, Dameron is no authority for the assignment of resentencing to a different judge.
The court today effectively eviscerates its own
CHIEF JUSTICE THOMAS and JUSTICE GARMAN join in this dissent.
(No. 104176.—REGINALD L. BEACHAM, Appellee, v. ROGER E. WALKER, JR., Director, Illinois Department of Corrections, Appellant. Opinion filed September 18, 2008.