                                  Illinois Official Reports

                                          Appellate Court



                              People v. Avila, 2014 IL App (2d) 121311



Appellate Court              THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                      LUIS I. AVILA, Defendant-Appellant.


District & No.               Second District
                             Docket No. 2-12-1311


Filed                        December 11, 2014


Held                         The sentences imposed on defendant following his guilty plea to home
(Note: This syllabus         invasion and aggravated unlawful use of a dangerous weapon other
constitutes no part of the   than a firearm were upheld over his contention that the extended term
opinion of the court but     imposed for the aggravated unlawful use of a dangerous weapon other
has been prepared by the     than a firearm was void because it was imposed on the less serious of
Reporter of Decisions        defendant’s offenses since, in defendant’s case, the amendment of the
for the convenience of       original charge of home invasion committed while armed with a
the reader.)                 firearm was amended for purposes of the plea agreement to charge
                             home invasion while armed with a dangerous weapon other than a
                             firearm, thereby supporting the factual basis presented for defendant’s
                             plea and allowing a determination that defendant’s two offenses arose
                             from unrelated courses of conduct and rendering the imposition of the
                             extended term on the conviction for aggravated unlawful use of a
                             firearm valid, even though it was the less serious of defendant’s two
                             convictions.


Decision Under               Appeal from the Circuit Court of Winnebago County, No.
Review                       11-CF-1400; the Hon. Rosemary Collins, Judge, presiding.



Judgment                     Affirmed.
     Counsel on               Thomas A. Lilien and Paul J. Glaser, both of State Appellate
     Appeal                   Defender’s Office, of Elgin, for appellant.

                              Joseph B. Bruscato, State’s Attorney, of Rockford (Lawrence M.
                              Bauer and Marshall M. Stevens, both of State’s Attorneys Appellate
                              Prosecutor’s Office, of counsel), for the People.



     Panel                    JUSTICE BIRKETT delivered the judgment of the court, with
                              opinion.
                              Presiding Justice Schostok and Justice Burke concurred in the
                              judgment and opinion.


                                               OPINION

¶1         On appeal, defendant, Luis I. Avila, challenges his sentence, imposed upon a plea of guilty,
       for home invasion (720 ILCS 5/12-11(a)(1) (West 2010) (possession of a dangerous weapon
       other than a firearm)) and aggravated unlawful use of a firearm (AUUF) (720 ILCS
       5/24-1.6(a)(1), (a)(3)(C) (West 2010) (failure to possess a currently valid firearm owner’s
       identification card)). He contends that (1) his extended-term sentence on the AUUF conviction
       is void because it is on the less serious of his two convictions; and (2) his sentence for home
       invasion is excessive under the facts. We reject both contentions and affirm.

¶2                                          I. BACKGROUND
¶3         In June 2011, the State brought a five-count indictment against defendant. Counts I and II
       alleged that defendant committed home invasion while armed with a firearm (720 ILCS
       5/12-11(a)(3) (West 2010)), count III charged unlawful possession of a firearm by a street gang
       member (720 ILCS 5/24-1.8(a)(1) (West 2010)), and counts IV and V charged AUUF
       (respectively, 720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2010) (“firearm possessed was
       uncased, loaded and immediately accessible at the time of the offense”) and 720 ILCS
       5/24-1.6(a)(1), (a)(3)(C) (West 2010) (failure to possess a currently valid firearm owner’s
       identification card)). Both home invasion counts alleged that defendant entered the dwelling
       place of Paulette Mattson while armed with a firearm and threatened her with the imminent use
       of force.
¶4         In each of the five counts the State alleged a basis for an extended-term sentence: on count
       I because Mattson was over 60 years of age at the time of the offense (730 ILCS
       5/5-5-3.2(b)(3)(ii) (West 2010)); and on counts II through V because the firearm defendant
       wielded was equipped with a laser sight (730 ILCS 5/5-5-3.2(b)(6) (West 2010)).
¶5         On June 1, 2012, the trial court and the parties held an unrecorded conference under Illinois
       Supreme Court Rule 402 (eff. July 7, 1997). On July 2, 2012, the State amended count I,
       deleting the reference to “firearm” and alleging instead that defendant possessed “a dangerous
       weapon, *** a bludgeon.” The State accordingly amended the statutory reference (see 720

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     ILCS 5/12-11(a)(1) (West 2010) (possession of a dangerous weapon other than a firearm)). In
     court that day, defense counsel announced that, “based on th[e] amendment” to count I, his
     client would plead guilty to counts I and V, and the remaining counts would be dismissed. The
     trial court commented that the amendment to count I eliminated “the additional enhancement
     language,” namely, the mandatory 15-year add-on term for home invasion while armed with a
     firearm (720 ILCS 5/12-11(c) (West 2010)). After a question arose regarding the sentence
     credit available on count I, the parties agreed to continue the matter “for a plea.”
¶6        At the next court date, defense counsel asked for a continuance while the parties explored
     the possibility of a “fully negotiated plea.” Three days later, the parties presented a plea
     agreement with the following terms:
              “Count 1 *** has already been amended. [Defendant] would plead guilty to Count 1
              and also to Count 5 ***, and we would ask to have this matter set for a sentencing
              hearing. There’s no cap, no agreement.”
¶7        In a colloquy with the court, defendant acknowledged that he was entering an “open plea”
     as there was no agreement on sentencing. The court admonished defendant that home invasion,
     a Class X felony, was normally punishable by a prison term of 6 to 30 years, but that defendant
     was eligible for an extended term of 30 to 60 years (730 ILCS 5/5-4.5-25(a) (West 2010))
     because Mattson was over 60 years old when the offense occurred (730 ILCS
     5/5-5-3.2(b)(3)(ii) (West 2010)). Likewise, for AUUF, which was a Class 4 felony normally
     punishable by a prison term of one to three years, defendant was eligible for an extended term
     of three to six years because the firearm he carried was equipped with a laser sight (730 ILCS
     5/5-5-3.2(b)(6) (West 2010)).
¶8        The State then presented the following factual basis for the plea:
                   “On May 25th of 2011 at approximately 1:22 a.m., Deputy Ganz *** was
              dispatched to a home invasion in progress at 231 Atwood Avenue in Rockford.
              Dispatch advised that the victim had an open line with 911 and that the suspects were in
              the home and could be heard talking and asking where the money was.
                   Upon his arrival, Deputy Ganz observed a suspect wearing a black bandana over
              the lower half of his face step out of the entryway on the south side of the residence[,]
              and Ganz ordered the suspect to the ground. Ganz reported that the suspect looked at
              him, turned back into the residence[,] and shut the door. Deputy Ganz reported that he
              heard what sounded like glass breaking and heard another deputy yelling for [the]
              suspects to get on the ground on the north side of the house.
                   Deputy Ganz reported that he ran to that location and observed another suspect,
              later identified as the defendant, Luis Avila, running east from the residence. Deputy
              Ganz reported [that] he chased the defendant, who was running with his hands
              concealed in front of him. *** [Defendant] turned south in the yards of 300 Garver and
              fell forward. Deputy Ganz then took the defendant into custody.
                   The victim, Paulette Mattson, reported that she had been in her kitchen when she
              heard someone shaking the front door. Mattson reported that she ran to her bedroom,
              shut the door[,] and called 911. Mattson reported that she was on the floor when three
              suspects came into her bedroom and one pointed a bludgeon at her and asked her
              ‘Where are the drugs, ma’am?’ Mattson said she told the males that they had the wrong
              house and gave them her purse.


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                   Deputy Ganz conducted a show-up with Mattson and she positively identified the
               defendant as one of the suspects who was yelling at her in her house and had a
               bludgeon in his hand and was pointing it at her.
                   Detectives later conducted a search of the area where the defendant was located and
               *** located a loaded 9 millimeter Ruger P89 handgun with a laser sight attached in the
               backyard of 305 Garver Avenue approximately 20 feet away from where [defendant]
               had fallen.
                   Paulette Mattson’s date of birth is October 21st of 1943, making her 67 years old at
               the time of the offense.
                   The defendant does not possess a currently valid firearm owner’s identification
               card.”
¶9         The court accepted the plea to counts I and V, ordered a presentence investigation report,
       and set the matter for sentencing.
¶ 10       At sentencing, the State called in aggravation Mattson and the police officers who
       responded to her 911 call on May 25, 2011. These witnesses presented the following account
       of the offense and its surrounding circumstances. Around 1 a.m. on May 25, Mattson was in
       her home in Rockford. She was 67 years old and lived alone. Mattson was in her kitchen taking
       medication when she heard the noise of a loud vehicle approaching. She looked out her front
       window and saw a truck parked across the street. When she turned off the kitchen lights to see
       outside better, she observed a face in the window. Startled, Mattson hurriedly tried to call the
       police. As she dialed 911, she saw three men at her front door. With her phone in one hand,
       Mattson tried to secure the door with a step stool. She heard the door handle rattle and then a
       brick came through the door. Mattson ran to her bedroom and tried to shut the door. A man
       pursued her and pushed against the bedroom door, and Mattson was knocked down. Mattson
       slid her phone under the bed, and the 911 operator was able to hear what transpired inside her
       bedroom. The man entered the room, flashed a laser into Mattson’s eyes, and threatened to
       kick her in the face if she did not give him “some ‘stash.’ ” The man threatened twice more to
       kick Mattson in the face. At the third threat, Mattson activated her “Life Line” device, which
       transmitted to paramedics that she had a medical emergency. Another man entered the room
       and told Mattson to get on the bed. Mattson heard a man yell from the living room that the
       police had arrived. The two men then fled from the bedroom.
¶ 11       When the police arrived at Mattson’s home, they saw a suspect flee on foot. The police
       pursued and apprehended the suspect in a nearby yard. The man identified himself as Luis
       Avila. The police conducted a show-up of defendant with Mattson, and she identified him as
       the man who had shined a laser in her eyes and threatened to kick her. The police searched the
       surrounding area and found, approximately 20 feet from where defendant was apprehended, a
       loaded 9-millimeter handgun with a laser sight.
¶ 12       The defense presented several witnesses in mitigation. The first was Anita Casazza-Bolton,
       who worked for La Voz Latina, a social services agency. She testified that defendant sought
       guidance from the agency on debt reduction and improving his job prospects. Defendant told
       Casazza-Bolton that he wanted to obtain his GED, complete the “Job Corp.” program, and
       eventually become a security guard or police officer. Defendant had some custody or visitation
       issues with his daughter and believed that it was important to spend time with her.
       Casazza-Bolton noted that defendant voluntarily enrolled in parenting classes with the


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       Department of Children and Family Services. She remembered defendant as “a very loving
       individual,” and she “honestly believe[d] he could still be rehabilitated.”
¶ 13       Also testifying was Crystal Salgado, the mother of defendant’s five-year-old daughter,
       Jaylene. Salgado said that defendant had a loving relationship with Jaylene. Defendant had
       voluntarily given Salgado and Jaylene financial support, and his absence since his arrest had
       been a hardship for them.
¶ 14       The final witness in mitigation was Irma Ortiz, defendant’s mother. Ortiz testified that, as a
       child, defendant was well behaved, hardworking, and conscientious. Ortiz described defendant
       as a “good person” who deserved a second chance.
¶ 15       Defendant spoke in allocution. He acknowledged that he “made a serious mistake” and
       apologized to Mattson. Defendant was willing “to accept responsibility” for his mistake.
¶ 16       The State recommended a 40-year extended-term sentence on count I, the home invasion
       conviction, and a concurrent 6-year extended-term sentence on count V, the AUUF conviction.
       The court sentenced defendant to a 28-year nonextended term on the home invasion
       conviction, which the court later reduced to 26 years. The court sentenced defendant to a
       concurrent six-year extended term on the AUUF conviction.
¶ 17       Defendant appeals.

¶ 18                                          II. ANALYSIS
¶ 19       Defendant’s two contentions on appeal are directed at his sentence. First, he asserts that,
       because his AUUF conviction was the less serious of his two convictions, the trial court had no
       authority to impose an extended-term sentence for that conviction. We disagree.
¶ 20       As defendant’s convictions were entered upon a guilty plea, we look to the factual basis for
       the plea to determine if defendant’s sentence was lawful. People v. White, 2011 IL 109616,
       ¶ 17. Generally, “when a defendant has been convicted of multiple offenses of differing
       classes, an extended-term sentence may only be imposed for the conviction within the most
       serious class.” People v. Jordan, 103 Ill. 2d 192, 206 (2006) (citing Ill. Rev. Stat. 1979, ch. 39,
       ¶ 1005-8-2(a) (now 730 ILCS 5/5-8-2(a) (West 2010))). Only when there are “separately
       charged, differing class offenses that arise from unrelated courses of conduct” will a trial court
       have discretion to impose an extended-term sentence for the conviction that is not within the
       most serious class. People v. Coleman, 166 Ill. 2d 247, 257 (1995). The Jordan/Coleman rule
       has an interesting application. A good example is a case like the present, where there are two
       convictions within different offense classes and each carries a potential extended term. As one
       might expect, the trial court could not properly impose extended terms on both convictions
       unless the offenses arose from unrelated courses of conduct. What one might not expect,
       however, is that, if the court wished to impose just one extended term, it could do so only on
       the greater offense, except where the offenses arose from unrelated courses of conduct, in
       which case an extended term could be imposed on either one or both convictions. See People v.
       Bell, 196 Ill. 2d 343, 355 (2001) (where the defendant was convicted of armed robbery and
       aggravated battery, and the trial court imposed an extended-term sentence for the battery (the
       less serious offense) alone, the extended term was void because the offenses were part of a
       single course of conduct).
¶ 21       Under the Jordan/Coleman rule, the extended-term sentence on the less serious offense,
       AUUF, was lawful only if the two offenses were part of unrelated courses of conduct. The

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       supreme court in Bell, asked to decide on a test for when offenses arise from unrelated courses
       of conduct, borrowed from the then-governing statutory criteria for the imposition of
       consecutive sentences:
               “The court shall not impose consecutive sentences for offenses which were committed
               as part of a single course of conduct during which there was no substantial change in
               the nature of the criminal objective ***.” 730 ILCS 5/5-8-4(a) (West 1998) (amended
               by Pub. Act 93-160, § 5 (eff. July 10, 2003)).
¶ 22        The Bell court applied the test as follows to extended-term sentencing:
               “[I]n determining whether a defendant’s multiple offenses are part of an ‘unrelated
               course of conduct’ for purposes of his eligibility for an extended-term sentence under
               section 5-8-2(a) [of the Unified Code of Corrections (730 ILCS 5/5-8-2(a) (West
               1998))], courts must consider whether there was a substantial change in the nature of
               the defendant’s criminal objective. If there was a substantial change in the nature of the
               criminal objective, the defendant’s offenses are part of an ‘unrelated course of conduct’
               and an extended-term sentence may be imposed on differing class offenses. If,
               however, there was no substantial change in the nature of the criminal objective, the
               defendant’s offenses are not part of an unrelated course of conduct, and an
               extended-term sentence may be imposed only on those offenses within the most serious
               class.” Bell, 196 Ill. 2d at 354-55.
¶ 23        We hold that the Bell test was met here. The original count I alleged that defendant
       committed the home invasion while armed with a firearm. Count V charged defendant with
       possession of a firearm equipped with a laser scope. However, as amended pursuant to the plea
       agreement, count I alleged that defendant possessed a dangerous weapon other than a firearm.
       The intent behind the plea agreement was for defendant to plead guilty in exchange for the
       State’s amending count I to eliminate defendant’s exposure to the mandatory 15-year add-on
       for possession of a firearm in the course of the home invasion. See 720 ILCS 5/12-11(c) (West
       2010). The State amended count I for no purpose other than to secure defendant’s plea. Thus,
       what the parties submitted to the court was the fiction that defendant was not armed with a
       firearm when he committed the home invasion. The parties had the prerogative to agree on that
       fiction for purposes of the plea and sentence, and our concern on review is whether the
       sentence was lawful in relation to the factual basis presented. See White, 2011 IL 109616, ¶ 27
       (recognizing principle embraced by the appellate courts that the State can “concede a version
       of the facts which would fail to acknowledge that a firearm was used in the commission of the
       offense and make sentencing concessions based on that set of facts,” but finding the principle
       “not relevant” in the case before it because “[t]he version of the facts agreed to by the State and
       presented by it in the factual basis to the court established that a firearm was used in the
       commission of the offense”); id. ¶¶ 37, 41 (Theis, J., specially concurring) (finding it
       “implicit” in the majority’s opinion that “[i]f the State wished to negotiate around the
       mandatory sentence enhancement ***, it should have *** amend[ed] the indictment and
       present[ed] a factual basis that referred to a dangerous weapon, rather than a firearm”); People
       v. Hubbard, 2012 IL App (2d) 120060, ¶ 21 (construing White to hold that the agreed facts
       presented to support a guilty plea “determine the validity of the sentence”).
¶ 24        The factual basis for the guilty plea stated that, during the home invasion, defendant was
       armed with a “bludgeon,” which–as charged in the amended count I–was not a firearm. The
       home invasion was complete when defendant, having entered Mattson’s home without

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       authority and knowing that she was home, threatened to harm her. See 720 ILCS 5/12-11(a)(1)
       (West 2010). The factual basis further stated that, when defendant was apprehended outside
       the home, a handgun was found in his vicinity. These latter facts were the proffered basis for
       the AUUF conviction entered on count V. The factual basis did not state that defendant
       possessed the handgun while inside Mattson’s home. The omission was no accident. The
       parties, who agreed to eliminate defendant’s exposure to the mandatory 15-year add-on for
       possession of a firearm in the course of a home invasion (see 720 ILCS 5/12-11(c) (West
       2010)), deliberately crafted and presented to the trial court a factual basis that made no mention
       that defendant possessed a firearm within Mattson’s home. Defendant alleges no
       ineffectiveness of trial counsel in negotiating his plea. He is bound by the factual basis to
       which he agreed in order to avoid the mandatory 15-year add-on. Not only was there no
       express mention in the factual basis that defendant possessed a firearm while inside the home,
       it was also not necessarily implied. There are plausible scenarios by which defendant might
       have come into possession of the handgun after he left the home (and completed the home
       invasion) and that would have demonstrated a substantial change from the criminal objective
       that defendant had in committing the home invasion. Perhaps, for instance, one of the other
       suspects passed the handgun to defendant for his disposal as he fled the home.
¶ 25       We hold, therefore, that the factual basis for the guilty plea supports the trial court’s
       implicit determination that the offenses of AUUF and home invasion arose from unrelated
       courses of conduct. See In re Jonathon C.B., 2011 IL 107750, ¶ 72 (reviewing court “presumes
       that a trial judge knows and follows the law unless the record affirmatively indicates
       otherwise”). Consequently, the trial court did not err in sentencing defendant to an extended
       term on the AUUF conviction.
¶ 26       Defendant’s other contention on appeal is that his 26-year sentence for home invasion is
       excessive. We disagree here as well.
¶ 27       A trial court has broad discretionary powers in fashioning a sentence, and its sentencing
       decision is entitled to great deference. People v. Stacey, 193 Ill. 2d 203, 209 (2000). A sentence
       within statutory limits will not be deemed excessive unless it is greatly at variance with the
       spirit and purpose of the law or manifestly disproportionate to the nature of the offense. Id. at
       210. “The spirit and purpose of the law are promoted when a sentence reflects the seriousness
       of the crime and gives adequate consideration to a defendant’s rehabilitative potential.” People
       v. Colbert, 2013 IL App (1st) 112935, ¶ 24.
¶ 28       Defendant contends that, in commenting that the offense was “serious,” the trial court was
       simply considering the inherent seriousness of home invasion. We disagree. The court could
       not properly consider a factor inherent in the offense, but here the court properly took into
       account “the nature and circumstances of [the] offense, including the nature and extent of each
       element of the offense as committed by [defendant]” (People v. Newlin, 2014 IL App (5th)
       120518, ¶ 22). See People v. Saldivar, 113 Ill. 2d 256, 268 (1986) (“A reasoned judgment as to
       the proper penalty to be imposed must *** be based upon the particular circumstances of each
       individual case.”). Indeed, “[t]he seriousness of the offense is the most important sentencing
       factor.” People v. Watt, 2013 IL App (2d) 120183, ¶ 50.
¶ 29       The trial court could properly note that the home invasion in this case was particularly
       brazen. As the State perceptively comments, “The fact that [d]efendant and his cohorts
       continued to enter in a riotous manner even when they were aware that they had been spotted
       also made it more frightening for [Mattson] because it must have seemed they would go to any

                                                   -7-
       length to achieve their goal.” Once inside the home, defendant pursued Mattson into her
       bedroom and, while she lay helpless on the floor, threatened multiple times to kick her in the
       head.
¶ 30       There were additional aggravating factors. First, Mattson was over 60 years old at the time
       of the offense. See 730 ILCS 5/5-5-3.2(a)(8) (West 2010). (Notably, the trial court could have
       used this same factor to impose an extended-term sentence for the home invasion (see 730
       ILCS 5/5-5-3.2(b)(3)(ii) (West 2010)), but decided against it.) Second, the event had
       considerable emotional impact on Mattson. See People v. Cain, 221 Ill. App. 3d 574, 575
       (1991) (“The psychological harm to the victim may also be considered as an aggravating
       factor.”). Mattson described at sentencing how the event changed her daily routine. She was
       prescribed an anti-anxiety drug. She sleeps on her sofa with her clothes on and keeps her car
       keys nearby so that she can use her car alarm to alert neighbors of an emergency. She is unable
       to fall asleep until 3 or 4 a.m. She has taken extra security measures on her house by barring her
       door and placing screws in her windows to limit their opening. When she sleeps, she “still
       hear[s] that crash, *** still see[s] that face, still see[s] the laser.” Once, when her grandchildren
       were playing with a toy laser, she broke down and cried.
¶ 31       There were also mitigating factors for the court to consider. Defendant’s prior criminal
       record consisted only of three traffic violations (a headlamp infraction, a stop sign violation,
       and a seatbelt infraction). The witnesses in mitigation testified to defendant’s good qualities.
       This evidence in mitigation was noteworthy, but the aggravating factors were substantial. As
       noted, defendant violently disrupted the domestic security of a senior citizen, pursuing her into
       her bedroom and threatening multiple times to kick her in the head as she lay helpless on the
       floor. Mattson testified to the vulnerability and anxiety she felt since the offense. “So long as
       the trial court does not consider incompetent evidence, improper aggravating factors, or ignore
       pertinent mitigating factors, it has wide latitude in sentencing a defendant to any term within
       the statutory range prescribed for the offense.” (Internal quotation marks omitted.) People v.
       Garcia-Cordova, 2011 IL App (2d) 070550-B, ¶ 90. We have no reason to doubt that the trial
       court considered all and only all pertinent sentencing factors. We find no abuse of discretion in
       the 26-year sentence on the home invasion conviction.

¶ 32                                     III. CONCLUSION
¶ 33       For the foregoing reasons, the judgment of the circuit court of Winnebago County is
       affirmed.

¶ 34       Affirmed.




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