2014 IL App (4th) 130221-U

Ill. App. Ct.

2014

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARCUS DARNELL PALMER, Defendant-Appellant.

NO. 4-13-0221

IN THE APPELLATE COURT OF ILLINOIS FOURTH DISTRICT

June 10, 2014

2014 IL App (4th) 130221-U

Honorable Scott Drazewski, Judge Presiding.

Appeal from Circuit Court of McLean County No. 11CF1081

JUSTICE HOLDER WHITE delivered the judgment of the court.
Justices Knecht and Steigmann concurred in the judgment.

ORDER

¶ 1 Held: The appellate court affirmed, concluding the trial court did not abuse its discretion by sentencing defendant to concurrent 16- and 22-year prison sentences because the court did not disregard or misunderstand the statutory minimum sentence.

¶ 2 Following a July 2012 trial, a jury found defendant, Marcus Darnell Palmer, guilty of various drug-related offenses including unlawful delivery of a controlled substance within 1,000 feet of a church (720 ILCS 570/407(b)(2) (West 2010)) (count I) and unlawful delivery of a controlled substance of more than one gram within 1,000 feet of a church (720 ILCS 570/407(b)(1) (West 2010)) (count IV). In November 2012, the trial court entered judgment on counts I and IV, sentencing defendant to concurrent terms of 16 and 22 years in prison, respectively. In pronouncing its sentence, the court noted defendant had a prior armed robbery conviction, for which he had been sentenced to 10 years’ imprisonment. The court stated it could not “go backwards” but instead needed “to go forward with respect to imposing additionаl punishment over and above what was imposed previously.”

¶ 3 Defendant appeals, arguing the trial court abused its discretion when imposing his sentence because the court arbitrarily and improperly raised the minimum sentence to 10 years.

¶ 4 We disagree and affirm.

I. BACKGROUND

¶ 6 In December 2011, a grand jury indicted defendant with the following: (1) unlawful delivery of a controlled substance within 1,000 feet of a church (720 ILCS 570/407(b)(2) (West 2010)) (count I); (2) delivery of a controlled substance within 1,000 feet of public housing property (720 ILCS 570/407(b)(2) (West 2010)) (count II); (3) unlawful delivery of a controlled substance (720 ILCS 570/401(d)(i) (West 2010)) (count III); (4) unlawful delivery of a controlled substance of more than one gram within 1,000 feet of a church (720 ILCS 570/407(b)(1) (West 2010)) (count IV); (5) delivery of a controlled substance of over one gram within 1,000 feet of public housing property (720 ILCS 570/407(b)(1) (West 2010)) (count V); and (6) unlawful delivery ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of a controlled substance of more than one gram (720 ILCS 570/401(c)(2) (West 2010)) (count VI). Counts I, II, and III were premised on a controlled buy that occurred on December 2, 2011, and counts IV, V, and VI were premised on a controlled buy that occurred on December 6, 2011.

¶ 7 Following a July 2012 trial, a jury found defendant guilty of all six counts. In November 2012, a sentencing hearing commenced. In aggravation, the State presented the testimony of Tim Tyler, a detective with the McLean County sheriff‘s department. Tyler testified on July 10, 2012, he spoke to “Juror No. 19,” who informed Tyler that defendant called her from the McLean County jail and asked her to help him. The State also presented the testimony of Todd McClusky, a detective with the City of Bloomington police department, who indicated the confidential informant in defendant‘s case, Melissa Woods, voluntarily went to Chicago the weekend before defendant‘s trial with three individuals, including defendant‘s brother, and her body was discovered in a vacant Chicago apartment a month later. Police ruled Woods’ death a homicide and were continuing to investigate the case.

¶ 8 The State also asked the trial court to take judicial notice of the court file in defendant‘s 2003 armed robbery conviction. In mitigаtion, defendant submitted character reference letters from various family members and a letter indicating he completed substance abuse education. Defendant also made a statement in allocution.

¶ 9 Finding counts I, II, and III merged, the court entered judgment on count I. Likewise, the court found counts IV, V, and VI merged and thus entеred judgment only on count IV. In pronouncing its sentence, the court stated it was “not pleased by any stretch of the imagination with the contact” defendant made with a juror. On the other hand, the court declined to consider Woods’ death as a factor in aggravation because defendant had not been charged with any invоlvement in Woods’ death. However, the court noted defendant was 29 years old and had already “had some significant jail time previously imposed.” Defendant‘s presentence investigation report revealed he was sentenced in 2003 to 10 years in prison for armed robbery. The court noted counts I and IV, collectively, carried a sentencing range of between 6 and 90 years in prison. The court then stated as follows:

“[F]or your selling $200 worth of [cocaine], you‘re already looking at up to 90 years. That isn‘t going to happen. Nor, for that matter, is the minimum term going to happen. What ought, will occur, from the court‘s perspective, is we are going tо go ahead and impose a sentence to the Department of Corrections that acknowledges, in essence, your previous criminal behavior, which acknowledges, in essence, that we can‘t go backwards, that we need to go forward with respect to imposing additional punishment over and above what was imposed previously[.]”

Thereafter, the court sentenced defendant to 16 years’ imprisonment on count I and 22 years’ imprisonment on count IV, ordering the sentences to run concurrently.

¶ 10 In November 2012, defendant filed a pro se motion to reconsider sentence. Later that month, defendant‘s attorney also filed a motion to reconsider sentence, аrguing defendant‘s sentence was excessive. On December 3, 2012, defendant filed a pro se notice of appeal. This court docketed defendant‘s appeal as case No. 4-12-1112. However, on December 19, 2012, upon defendant‘s motion, this court dismissed defendant‘s appeal. People v. Palmer, No. 4-12-1112 (December 19, 2012) (dismissed on defendant‘s motion). On December 31, 2012, defendant filed in the trial court a pro se motion to dismiss both motions to reconsider sentence, requesting that a new notice of appeal be filed.

¶ 11 On January 7, 2013, the trial court made a docket entry (1) allowing the defendant‘s motion to dismiss the motions to reconsider, (2) directing the McLean County circuit clerk to prepare a new notice of appeal on defendant‘s behalf, and (3) appointing the office of the State Appellate Defender (OSAD) to represent defendant. The record does not indicate the circuit ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍clerk prepared a new notice of appeal as directed. On January 11, 2013, the court filed correspondence it received from defendant. In his correspondence, defendant stated, “I *** put in a motion to dismiss the motion to reduce sentence. I do not want to waive any sentencing-related issues, so I would like to withdraw that motion, and proceed with the motion to reduce sentencing.” Defendant also indicated he could not obtain private counsel and sought “proper representation to hear [his] motion to reconsider.” A January 16, 2013, docket entry reflects the court set the case for “Status/Mtn to Reconsider” on February 22, 2013.

¶ 12 On February 22, 2013, the scheduled hearing commenced. The trial court indicated it had “no idea” why the hearing hаd been called because defendant had “changed his mind on numerous occasions.” Defense counsel stated he was “asking to go forward with a motion to reconsider in this case,” requesting the court reconsider defendant‘s sentence because it was excessive based on mitigating factors. The court denied thе motion. Defendant indicated he wished to appeal, and the circuit clerk filed a notice of appeal on March 19, 2013.

II. ANALYSIS

¶ 14 On appeal, defendant argues the trial court abused its discretion when imposing his sentence because the court arbitrarily and improperly raised the minimum sentence to 10 years.

A. Whether This Court Has Jurisdiction

¶ 16 Before turning to defendant‘s arguments, we must first address the State‘s claim that defendant‘s appeal should be dismissed because defendant failed to comply with Illinois Supreme Court Rule 341(h)(4) (eff. Feb. 6, 2013) by omitting from his statement of jurisdiction arguments and citation to the record establishing to a requisite degree of certainty that his appeal is timely under Illinois Supreme Court Rule 606(b) (eff. Feb. 6, 2013). We agreе with the State that the jurisdictional statement in defendant‘s opening brief is deficient in that defendant characterized his December 31, 2012, pro se motion as a motion to dismiss only defendant‘s pro se motion to reconsider sentence. In fact, defendant‘s motion, which the trial court granted, sought to dismiss his own motion to reconsider sentence as well as his attorney‘s motion to reconsider sеntence, thus raising a question as to whether a pending motion to reconsider sentence existed when the court made its ruling in February 2013. However, in his reply brief, defendant has included an amended statement of jurisdiction fully setting out the background of this case, and we find the amended statement sufficient to cure the Rule 341(h)(4) violation.

¶ 17 Further, we conclude that we have jurisdiction in this case. Illinois Supreme Court Rule 606(b) (eff. Feb. 6, 2013) requires a defendant to file a notice of appeal “within 30 days after the final judgment appealed from or if a motion directed against the judgment is timely filed, within 30 days after the entry of the order disposing of the motion.” Here, the trial court allowed defendant‘s pro se motion to dismiss the motions to reconsider on January 7, 2013. However, the court should not have done so as defendant was represented by counsel and thus, his pro se motions—both to reduce his sentence and, later, to withdraw both his and his attorney‘s motions to reduce sentence—were not properly before the court. See People v. Hampton, 2011 IL App (4th) 100219, ¶ 11, 959 N.E.2d 1158 (concluding a defendant‘s pro se “motion tо re-coupe [sic] personal funds” was not properly before the trial court because the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍defendant was represented by trial counsel throughout the court proceedings); see also People v. Handy, 278 Ill. App. 3d 829, 836, 664 N.E.2d 1042, 1046 (1996) (concluding the trial court correctly ignored the defendant‘s pro se motion for reduction of sentence, as the defendant was represented by counsel and thus his motion was not properly before the court). Accordingly, we treat the court‘s January 7, 2013, ruling as a nullity, meaning that until February 22, 2013, defense counsel‘s motion to reconsider sentence remained pending in the trial court. After the court denied counsel‘s motion following the February 22, 2013 hearing, the 30-dаy time period in which defendant could file a notice of appeal commenced. Defendant filed a notice of appeal on March 19, 2013, well within that 30-day period. Accordingly, this court has jurisdiction to consider defendant‘s appeal.

B. Whether the Trial Court Abused Its Discretion During Sentencing

¶ 19 Defendant contends the trial court abused its discretion when imposing his sentence because the court raised the minimum sentence to 10 years. Specifically, defendant points out that in pronouncing sentence, the trial court indicated it would not “go backwards” but would instead impose additional punishment “over and above” the 10-year sentenсe defendant previously served for armed robbery. Defendant asserts that in making its statement that it would not “go backwards,” the court “overruled” the legislature‘s intent to set the minimum sentences four counts I and IV at 4 and 6 years, respectively, and instead established a minimum sentencing range based on defendant‘s prior sentence.

¶ 20 Defendant acknowledges he has forfeited his sentencing argument by failing to include it in his motion to reconsider sentence. Nonetheless, he urges this court to review the issue for plain error. Alternatively, he contends that counsel‘s failure to raise the issue in his motion to reconsider sentence constituted ineffective assistance of counsel.

¶ 21 The plain-error doctrine allows a reviewing court to consider unpreserved error when (1) the evidence is close, regardless of the seriousness of the error, or (2) the error is serious, regardless of the closeness of the evidence. People v. Piatkowski, 225 Ill. 2d 551, 564-65, 870 N.E.2d 403, 410 (2007). Our first step in plain-error review is to determine whether error occurred. Id. at 565, 870 N.E.2d at 411.

¶ 22 A trial court has broad discretionary powers in imposing a sentence. People v. Alexander, 239 Ill. 2d 205, 212, 940 N.E.2d 1062, 1066 (2010). We give ” ‘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.’ ” Id. at 212-13, 940 N.E.2d at 1065 (quoting People v. Fern, 189 Ill. 2d 48, 53, 723 N.E.2d 207, 209 (1999)). Thus, we will not alter a defendant‘s sentence unless the trial court has abused its discretion. Alexander, 239 Ill. 2d at 212, 940 N.E.2d at 1066. A court abuses its discretion when “the sentence is greatly at variance with the spirit and purpose of the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍law, or manifestly disproportionate to the nature of the offense.” (Internal quotatiоn marks omitted.) Id. In addition, a “misstatement of the understanding of the minimum sentence by the trial judge necessitates a new sentencing hearing” where “it appears that the mistaken belief of the judge arguably influenced the sentencing decision.” People v. Eddington, 77 Ill. 2d 41, 48, 394 N.E.2d 1185, 1188 (1979).

¶ 23 Here, the trial court entered judgment on count I, unlawful delivery of a controlled substance within 1,000 feet of a church (720 ILCS 570/407(b)(2) (West 2010)), and count IV, unlawful delivery of a controlled substance of more than one gram within 1,000 feet of a church (720 ILCS 570/407(b)(1) (West 2010)). Unlawful delivery of a controlled substance within 1,000 feet of a church is a Class 1 felony (720 ILCS 570/401(c), 407(b)(2) (West 2010)), and unlawful delivery of a controlled substance of more than one gram within 1,000 feet of a church is a Class X felоny (720 ILCS 570/401(a), 407(b)(1) (West 2010)). A Class 1 felony ordinarily carries a sentence of 4 to 15 years; however, based on defendant‘s prior felony conviction, he was eligible for an extended-term sentence of up to 30 years. 730 ILCS 5/5-4.5-30(a), 5-5-3.2(b)(1), 5-8-2(a) (West 2010). Similarly, the Class X felony carried a sentence of between 6 and 60 years, based on defendant being extended-term eligiblе due to his prior felony conviction. 730 ILCS 5/5-4.5-25(a), 5-5-3.2(b)(1), 5-8-2(a) (West 2010).

¶ 24 The trial court, after having noted defendant‘s prior 10-year sentence for armed robbery, stated it would not “go backwards” in terms of punishment but would instead impose a sentence that “acknowledge[d]” defendant‘s “previous criminal behavior” and would serve as “additional punishment over аnd beyond what was previously imposed.” Thereafter, the court sentenced defendant to 16 years’ imprisonment on count I and 22 years’ imprisonment on count IV. The court ordered the sentences to run concurrently to one another.

¶ 25 Our review of the record does not lead us to conclude the trial court abused its disсretion in sentencing defendant to concurrent 16- and 22-year prison sentences. We find unpersuasive defendant‘s assertion that, by stating it was not going to “go backwards” in sentencing, the court arbitrarily and improperly imposed its own minimum sentence. Rather, we interpret the court‘s statement as indicating it considered defendant‘s prior felony conviction, for which he was sentenced to 10 years in prison, and determined a minimum 6-year sentence was insufficient. As the State notes, a court may consider in aggravation a defendant‘s history of prior criminal activity. See 730 ILCS 5/5-5-3.2(a)(3) (West 2010).

¶ 26 Moreover, defendant fails to show that the trial court‘s alleged misunderstanding of the minimum sentenсe arguably influenced its selection of a sentence. The evidence presented at the sentencing hearing reflected that, in addition to being only 29 and already having served “significant jail time,” defendant also contacted a jury member from jail and asked her to help him. The court stated it was “not pleased by any stretch of the imagination” with defendant‘s contact. Thus, defendant fails to show that the court arguably based its sentence on a misunderstanding of the minimum sentence rather than on its consideration of the evidence presented in aggravation. Accordingly, we conclude the court did not err by sentencing defendant to 16- and 22-year sеntences. Because we find no error, no further plain-error analysis is required.

¶ 27 Defendant also contends, in the alternative, that counsel‘s failure to preserve for review his claim concerning the trial court‘s imposition of its own minimum sentence constituted ineffective assistance of counsel. To prevail on a claim of ineffective assistance of counsel, a defendant must show (1) defense counsel‘s performance was deficient, and (2) the defendant suffered prejudice as a result of counsel‘s deficient performance. Strickland v. Washington, 466 U.S. 668 (1984). Because we have concluded the court did not misunderstand or disregard the statutory sentencing range, defendant has failed to show any ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍deficiency in counsel‘s performance or demonstrate he was prejudiced by counsel‘s failure to file a posttrial motion raising this issue.

III. CONCLUSION

¶ 29 For the reasons stated, we affirm the trial court‘s judgment. As part of our judgment, we grant the State its $50 statutory assessment against defendant as costs of this appeal.

¶ 30 Affirmed.