                                  Illinois Official Reports

                                          Appellate Court




                             People v. Andrews, 2013 IL App (1st) 121623




Appellate Court              THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                      CLEO ANDREWS, Defendant-Appellant.



District & No.               First District, First Division
                             Docket No. 1-12-1623


Filed                        December 16, 2013



Held                         In imposing a sentence of 10 years on defendant for aggravated battery
(Note: This syllabus         of a handicapped person, the trial court did not reconsider the victim’s
constitutes no part of the   disability as an aggravating factor when it merely mentioned his
opinion of the court but     condition during sentencing, the sentence was not excessive, and no
has been prepared by the     evidence supported defendant’s claim that the sentence was
Reporter of Decisions        punishment for rejecting an offer of a sentence of 9 years in return for
for the convenience of       pleading guilty to a Class X offense of home invasion; however,
the reader.)                 defendant’s mittimus was corrected to reflect a conviction for
                             aggravated battery of a handicapped person, not a pregnant/
                             handicapped person.



Decision Under               Appeal from the Circuit Court of Cook County, No. 11-CR-13275; the
Review                       Hon. Stanley J. Sacks, Judge, presiding.




Judgment                     Affirmed; mittimus corrected.
     Counsel on               Michael J. Pelletier, Alan D. Goldberg, and Carson R. Griffis, all of
     Appeal                   State Appellate Defender’s Office, of Chicago, for appellant.

                              Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg and
                              Matthew Connors, Assistant State’s Attorneys, of counsel), for the
                              People.


     Panel                    JUSTICE CUNNINGHAM delivered the judgment of the court, with
                              opinion.
                              Justices Hoffman and Delort concurred in the judgment and opinion.


                                              OPINION


¶1         Following a jury trial in the circuit court of Cook County, defendant Cleo Andrews was
       found guilty of aggravated battery and sentenced to the maximum extended term of 10 years’
       imprisonment. On direct appeal, the defendant argues that: (1) the court improperly considered
       the victim’s disability as an aggravating factor in sentencing when that disability was an
       element of the offense; (2) his sentence is excessive in light of the mitigating factors he
       presented; and (3) this court should amend his mittimus to properly reflect the crime of which
       he was convicted. For the following reasons, we affirm the judgment of the circuit court of
       Cook County.

¶2                                         BACKGROUND
¶3         On or around August 19, 2011, the defendant was charged with home invasion and the
       aggravated battery of Corey Williams, who is paralyzed from the waist down and confined to a
       wheelchair. On April 3, 2012, the defendant’s jury trial commenced in the circuit court of
       Cook County. At trial, Williams testified that the defendant was a friend who would
       occasionally drink with him at his home. Williams stated that shortly after midnight on August
       5, 2011, he came out of his bedroom and saw the defendant looking through his refrigerator,
       appearing to be “stumbling drunk.” The defendant did not have an “open invitation” and he
       was not invited over on the night in question. Williams yelled at the defendant and told him to
       leave. Williams testified that the defendant then hit him on the right side of the face, the force
       of which knocked him off his wheelchair. The defendant then hit him four or five more times
       as he was lying on the ground. Williams stated that he went to the bathroom to clean up his face
       and observed that he was “bleeding bad; bleeding from [his] nose, bleeding from [his] mouth,
       and [his] eye was swelling up on [him].” When he came out of the bathroom, he saw the
       defendant asleep on the couch. Williams stated that he then left his residence, called the police,

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     and waited outside for the police to arrive. He testified that he did not go to the hospital for his
     injuries because he was too upset and wanted to go back inside the house and sleep.
¶4        Officer Faith Reeves (Officer Reeves) testified that she responded to the call and was
     waved down by Williams, who was waiting outside. She observed that Williams was upset and
     crying, and that his right eye was swollen. After speaking to Williams, Officer Reeves and her
     partner entered the residence and saw the defendant sleeping in the front room. As they
     attempted to wake him, Officer Reeves observed that the defendant smelled of alcohol and was
     “sluggish and slow to respond.”
¶5        The defendant testified that he and Williams were “good drinking buddies” and that he
     would often spend the night at Williams’s house after drinking too much. On the night of the
     incident, he telephoned Williams to tell Williams that he was coming over, and Williams
     raised no objection. Later, while he and Williams were drinking on the front porch, they began
     to argue. During that argument, the defendant made fun of Williams’s disability and Williams
     became upset. At some point thereafter, the defendant told Williams that he “was going to
     need” to spend the night at Williams’s house since he had had too much to drink. Williams told
     the defendant there was “no way he was going to allow [the defendant] to spend the night”
     after making fun of him. Williams then went to the bathroom, and the defendant “passed out”
     on the couch. The next thing the defendant remembered was being awakened by police. The
     defendant testified that he never hit Williams. Also, the defendant stated that he was never
     specifically asked to leave and it was not clear to him that Williams did not want him to spend
     the night.
¶6        In rebuttal, the State called Detective DeWilda Gordon (Detective Gordon), who testified
     that he interviewed the defendant following the incident. Detective Gordon stated that the
     defendant admitted that he hit Williams in the face once, but denied having “beat him up.”
     Detective Gordon also testified that he spoke to Williams prior to his interview with the
     defendant and observed that Williams’s face and lip were bruised.
¶7        After the close of evidence and closing argument, the jury returned a verdict finding the
     defendant not guilty of home invasion, but guilty of aggravated battery. On April 30, 2012, the
     trial court held the defendant’s sentencing hearing. The State argued in aggravation that the
     facts of the case and the defendant’s long history of criminal activity made it appropriate for
     the court to sentence the defendant to the maximum extended-term sentence of 10 years’
     imprisonment. Defense counsel contended that the defendant’s criminal history and the
     offense at issue were caused by the defendant’s long history of substance abuse problems. In
     allocution, the defendant apologized for “any trouble that I’ve caused my friend and also for
     bringing any kind of problem into your courtroom.” He then stated that this case revolved
     “around alcohol, and I just would ask if you could give me a chance, your Honor, with some
     help with alcohol classes.”
¶8        The court noted that the defendant was extended-term eligible based on a prior conviction
     within the last 10 years for robbery of a senior citizen. The trial court then sentenced the
     defendant to the maximum of 10 years’ imprisonment, which it explicitly found was
     appropriate in this case. In announcing its decision, the court stated that it considered the
     presentence investigation report (PSI), the defendant’s statement, the arguments of counsel,
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       and the circumstances and serious nature of the crime. The court also cited the defendant’s past
       criminal record, which it observed was among the top “four or five” worst records it had ever
       seen. In reviewing that criminal history, the court observed that the defendant’s previous
       conviction of robbery of a senior citizen, and his current conviction of aggravated battery of a
       physically handicapped person, revealed his propensity for “picking on” vulnerable victims.
¶9         On May 8, 2012, the defendant filed a motion to reconsider his sentence, which the trial
       court denied. On that same day, the defendant filed a timely notice of appeal. Therefore, this
       court has jurisdiction to consider the defendant’s appeal pursuant to Illinois Supreme Court
       Rule 606 (eff. Feb. 6, 2013).

¶ 10                                             ANALYSIS
¶ 11       We determine the following issues on appeal: (1) whether the court improperly considered
       the victim’s disability as an aggravating factor in sentencing when that disability was an
       element of the offense; (2) whether the defendant’s sentence is excessive in light of the
       mitigating factors presented by the defendant; and (3) whether this court should amend the
       defendant’s mittimus to properly reflect the crime of which he was convicted.
¶ 12       We first determine whether the court improperly considered the victim’s disability as an
       aggravating factor in sentencing when that disability was an element of the offense.
¶ 13        The defendant argues that the trial court improperly reconsidered Williams’s handicap in
       determining his sentence. In support of his argument, the defendant highlights the following
       comments made by the court in discussing his criminal history, including a conviction for
       robbery of a senior citizen:
                   “In this case, it’s the same circumstance except it wasn’t a robbery, it was an
               aggravated battery of a person who is handicapped, a guy paralyzed from the waist
               down. You’re picking on people who cannot really protect themselves much. *** Mr.
               Andrews, you have to learn you cannot do things to people that are not able to protect
               themselves much. In 2006, [you were convicted of] a robbery of a handicapped person,
               a senior citizen at least, [and] in this case [you were convicted of] an aggravated battery
               of a handicapped person, a guy in a wheelchair paralyzed from the waist down. If you
               have a beef with a guy, there’s better ways to resolve it than the way you resolved this
               case, especially based upon your prior history. You can’t use force to accomplish
               crimes, especially with older or vulnerable [people] like in this case, the victim, who
               you knew for years before or were certainly well aware he was handicapped.”
       In response, the State contends that the court did not reconsider the victim’s handicap as an
       aggravating factor and properly considered all of the aggravating and mitigating factors in
       fashioning the defendant’s sentence.
¶ 14       The imposition of sentence is a matter of judicial discretion, and the trial court’s sentencing
       decision is entitled to great deference and weight. People v. Perruquet, 68 Ill. 2d 149, 154
       (1977). Where, as here, a sentence falls within the statutory range for the offense of which the
       defendant was convicted, a reviewing court may not modify that sentence absent an abuse of
       discretion. People v. Jones, 168 Ill. 2d 367, 373-74 (1995). This standard recognizes the trial
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       court’s superior position to determine the appropriate sentence based on its personal
       observation of the defendant and the proceedings. People v. Alexander, 239 Ill. 2d 205, 212-13
       (2010). The trial court has the opportunity to weigh the relevant sentencing factors, including
       the defendant’s credibility, demeanor, moral character, mentality, social environment, habits
       and age. Id. at 213. Therefore, we review the defendant’s sentence under the abuse of
       discretion standard.
¶ 15       The supreme court has clearly stated that a factor inherent in an offense should not also be
       used as an aggravating factor at sentencing. People v. Conover, 84 Ill. 2d 400, 404 (1981).
       However, the supreme court has also recognized that the proper penalty must be based upon
       the particular circumstances of each case, including the nature and extent of each element of
       the offense committed by the defendant. People v. Saldivar, 113 Ill. 2d 256, 268-69 (1986).
       Thus, in announcing its sentencing decision, the trial court is not required to refrain from any
       mention of the factors which constitute elements of an offense, and the mere reference to the
       existence of such a factor is not reversible error. People v. Jones, 299 Ill. App. 3d 739, 746
       (1998). In turn, a reviewing court determining whether a sentence is properly imposed should
       not focus on a few words or sentences of the trial court, but should consider the record as a
       whole. People v. Estrella, 170 Ill. App. 3d 292, 297-98 (1988).
¶ 16       Applying these principles here, we find it clear that the court did not reconsider Williams’s
       disability as an aggravating factor when it referred to his condition. Rather, the court was
       commenting on proper factors, including the nature and extent of the offense committed by the
       defendant, his criminal history, and his propensity to prey on vulnerable victims. See
       Perruquet, 68 Ill. 2d at 154-56. Therefore, we find that the trial court did not improperly rely
       on a factor inherent in the offense when it made its sentencing decision.
¶ 17       We next determine whether the defendant’s sentence is excessive in light of the mitigating
       factors presented by the defendant.
¶ 18       The defendant contends that his sentence was excessive in light of certain mitigating
       factors, namely, his “difficult upbringing, substance abuse problems, and expressions of
       remorse.” We note however, that these same factors were presented to the trial court, and it is
       not our prerogative to rebalance those factors and independently conclude that the sentence
       imposed by the court is excessive. People v. Burke, 164 Ill. App. 3d 889, 902 (1987).
       Moreover, “where mitigation evidence is before the court, it is presumed the court considered
       that evidence absent some contrary indication other than the sentence imposed.” People v.
       Smith, 214 Ill. App. 3d 327, 339 (1991) (citing People v. Willis, 210 Ill. App. 3d 379 (1991)).
       Here, the transcript of the sentencing hearing clearly shows that the court specifically
       considered the PSI, which disclosed the defendant’s personal circumstances, and considered
       the defendant’s statement and arguments of counsel. The court then determined that the
       maximum extended-term sentence was appropriate. Under these circumstances, we find no
       abuse of discretion in the sentence imposed and, thus, have no basis to disturb it. People v.
       Almo, 108 Ill. 2d 54, 70 (1985).
¶ 19       The defendant also points out that he was offered a plea deal prior to trial for nine years’
       imprisonment in exchange for a guilty plea on the home invasion charge, a Class X offense. He
       alleges that this deal “demonstrates the excessively harsh punishment” given by the trial court
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       when it sentenced him to 10 years’ imprisonment for a lower, Class 3 offense. Accordingly, he
       claims that he “should not be punished more harshly for rejecting a plea offer and exercising
       his right to go to trial.” However, the mere fact that the defendant is given a greater sentence
       than was discussed at a pretrial conference, or offered in a plea deal, does not support an
       inference that the sentence was imposed as a punishment for demanding trial. People v.
       Jackson, 89 Ill. App. 3d 461, 481 (1980). Aside from his general contention that he should not
       be punished for proceeding to trial, the defendant has presented no evidence to support his
       argument. We find no such evidence in the record, and reject his assertions.
¶ 20       Lastly, we determine whether this court should amend the defendant’s mittimus to properly
       reflect the crime of which he was convicted.
¶ 21       The defendant argues, the State concedes, and we agree that the defendant’s mittimus
       should be amended to accurately reflect the offense for which he was convicted. The
       defendant’s mittimus provides that he was found guilty of “AGGBTRY/PREGNANT/
       HANDICAPPED.” However, the defendant was charged and convicted of aggravated battery
       against a handicapped person, not a pregnant person. Therefore, the “PREGNANT” portion of
       his mittimus should be amended. Pursuant to Illinois Supreme Court Rule 615(b)(1), we direct
       the clerk of the circuit court to amend the mittimus by omitting the reference to “PREGNANT”
       in order to accurately reflect the offense of which the defendant was convicted. See People v.
       Blakney, 375 Ill. App. 3d 554, 560 (2007).
¶ 22       For the foregoing reasons, we order that the defendant’s mittimus be corrected, and we
       affirm the judgment of the circuit court of Cook County in all other respects.

¶ 23      Affirmed; mittimus corrected.




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